As filed with the Securities and Exchange Commission on July 2, 2021.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SNAP ONE HOLDINGS CORP.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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3670
(Primary Standard Industrial
Classification Code Number)
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82-1952221
(I.R.S. Employer
Identification Number)
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1800 Continental Boulevard, Suite 200
Charlotte, North Carolina 28273
(704) 927-7620
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
JD Ellis
Chief Legal Officer
11734 S Election Road
Draper, Utah 84020
(801) 523-3100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
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William B. Brentani
Daniel N. Webb
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, California 94304
Tel: (650) 251-5000
Fax: (650) 251-5002
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Rick Kline
Drew Capurro
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
Tel: (650) 328-4600
Fax: (650) 463-2600
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
☐
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Non-accelerated filer
☒
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Smaller reporting company
☐
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Emerging growth company
☒
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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 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class
of Securities to be Registered
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Proposed Maximum
Aggregate
Offering Price(1)(2)
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Amount of
Registration Fee
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Common stock, $0.01 par value per share
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$
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100,000,000
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$
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10,910
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(1)
Includes shares that the underwriters have the option to purchase. See “Underwriting.”
(2)
Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. Neither we nor the selling stockholders may sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and neither we nor the selling stockholders are soliciting offers to buy the securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED , 2021
Preliminary Prospectus
SHARES
COMMON STOCK
This is Snap One Holdings Corp.’s initial public offering. We are selling shares of our common stock.
We estimate the initial public offering price of our common stock to be between $ and $ per share. Prior to this offering, no public market existed for our common stock. We have applied to list our common stock on the Nasdaq Global Select Market (“Nasdaq”) under the symbol “SNPO.”
We are an “emerging growth company” as defined under the federal securities laws and, as such, have elected to comply with certain reduced public company reporting requirements. See “Prospectus Summary — Implications of Being an Emerging Growth Company.” After the completion of this offering, certain investment funds advised by an affiliate of Hellman & Friedman LLC will continue to own a majority of the shares eligible to vote in the election of our directors. As a result, we will be a “controlled company” within the meaning of the corporate governance standards of Nasdaq. See “Management — Controlled Company Exception” and “Principal and Selling Stockholders.”
Investing in the common stock involves risks. See “Risk Factors” beginning on page 18 of this prospectus.
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Per
Share
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Total
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Public offering price
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$
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$
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Underwriting discount(1)
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$
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$
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Proceeds, before expenses, to us
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$
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$
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(1)
See “Underwriting” for a description of the compensation payable to the underwriters.
The underwriters may exercise their option to purchase up to an additional shares from us and the selling stockholders identified herein, at the public offering price, less the underwriting discount, for 30 days after the date of this prospectus to cover over-allotments. We will not receive any proceeds from the sale of shares by the selling stockholders, and the selling stockholders will only sell shares in this offering if the underwriters exercise such option.
At our request, the underwriters have reserved up to shares, or 5% of the shares offered by this prospectus, for sale at the initial public offering price in a directed share program, to certain of our directors, employees and partner providers. See “Underwriting — Directed Share Program.”
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The shares will be ready for delivery on or about , 2021.
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Morgan Stanley
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J.P. Morgan
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Jefferies
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UBS Investment Bank
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BMO Capital Markets Raymond James Truist Securities William Blair
Drexel Hamilton Penserra Securities LLC
R. Seelaus & Co., LLC
Siebert Williams Shank
The date of this prospectus is , 2021.
TABLE OF CONTENTS
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Page
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1
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18
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57
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58
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59
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61
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63
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90
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106
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113
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126
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130
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133
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141
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143
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146
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156
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156
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156
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F-1
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Through and including , 2021 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
We, the selling stockholders and the underwriters have not authorized anyone to provide any information or to make any representations other than those contained in this prospectus, any amendment or supplement to this prospectus or any free writing prospectuses prepared by us or on our behalf. We, the selling stockholders and the underwriters take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus, any amendment or supplement to this prospectus or any applicable free writing prospectus is an offer to sell only the shares offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in this prospectus, any amendment or supplement to this prospectus or any applicable free writing prospectus is current only as of its date, regardless of the time of delivery of this prospectus, any amendment or supplement to this prospectus or any applicable free writing prospectus or any sale of the shares. Our business, financial condition, results of operations and prospects may have changed since such date.
For investors outside the United States: We, the selling stockholders and the underwriters have not done anything that would permit a public offering of the shares of our common stock or possession or distribution of this prospectus, any amendment or supplement to this prospectus or any applicable free writing prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus, any amendment or supplement to this prospectus or any applicable free writing prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of common stock and the distribution of this prospectus, any amendment or supplement to this prospectus or any applicable free writing prospectus outside of the United States.
Unless otherwise indicated or the context otherwise requires, references in this prospectus to the term:
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“2017 Incentive Plan” means the Crackle Holdings L.P. 2017 Incentive Plan, an equity incentive plan that our board of directors has adopted, and that we expect our stockholders to approve, prior to the completion of this offering;
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“2021 Incentive Plan” means the Snap One Holdings Corp. 2021 Incentive Plan, an equity incentive plan that our board of directors has adopted, and that we expect our stockholders to approve, prior to the completion of this offering;
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“2021 Employee Stock Purchase Plan” means the Snap One Holdings Corp. 2021 Employee Stock Purchase Plan, an employee stock purchase plan that our board of directors has adopted, and that we expect our stockholders to approve, prior to the completion of this offering;
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“Company” means Snap One Holdings Corp. and its consolidated subsidiaries;
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“Credit Agreement” means that certain Credit Agreement, dated as of August 4, 2017 (as amended and supplemented by that certain Amendment Agreement, dated as of November 1, 2017, that certain Incremental Agreement No. 1, dated as of February 5, 2018, that certain Incremental Agreement No. 2, dated as of October 31, 2018, and that certain Incremental Agreement No. 3, dated as of August 1, 2019) by and among Wirepath LLC, as borrower, Crackle Purchaser LLC, as holdings, the lenders and letter of credit issuers from time to time as parties thereto, UBS AG, Stamford Branch, as the administrative agent, collateral agent and swingline lender, and the other parties thereto, consisting of a $265.0 million senior secured term loan (the “Initial Term Loan”), an additional $390.0 million senior secured term loan (the “Incremental Term Loan”) and a $60.0 million senior secured revolving credit facility (the “Revolving Credit Facility”);
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“Credit Facilities” means the Revolving Credit Facility and the term loan facilities under the Credit Agreement;
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“DGCL” means the Delaware General Corporation Law, as amended;
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“Equity Conversion” means (i) the distribution by the Investor of shares of common stock of the Company held by the Investor to the holders of vested units of the Investor and (ii) the exchange of unvested Incentive Units for newly issued shares of restricted common stock of the Company, in each case, in accordance with the Partnership Agreement and in connection with this offering. Pursuant to the Partnership Agreement, the number of shares of (a) common stock to be distributed by the Investor to the holders of vested units of the Investor or (b) restricted common stock exchanged by the Company with holders of unvested Incentive Units will, in each case, be on the basis of a ratio that takes into account the applicable distribution threshold applicable to such units and the value of distributions that the holder thereof would have been entitled to receive had the Investor liquidated on the date of such distribution in accordance with the terms of the distribution provisions set forth in the Partnership Agreement based on a valuation of the Company using the initial public offering price per share of our common stock in this offering;
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“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended;
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“FCPA” means the U.S. Foreign Corrupt Practices Act;
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“GAAP” means U.S. generally accepted accounting principles;
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“GDPR” means the European Union’s General Data Protection Directive;
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“Hellman & Friedman” or “H&F” means those certain investment funds of Hellman & Friedman LLC and its affiliates;
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“Investor” means Crackle Holdings, LP, an affiliate of H&F and the entity that, until the completion of this offering, will hold all of our outstanding equity;
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“Incentive Units” means the Class B-1 Units and Class B-2 Units of the Investor;
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“NOLs” means net operating losses;
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“NPS” means Net Promoter Score. NPS is calculated based on a single question: “How likely is it that you would recommend Snap One to a friend or colleague?” Integrators who respond with a 6 or
below are Detractors, a score of 7 or 8 are called Passives, and a 9 or 10 are Promoters. NPS is calculated by subtracting the percentage of Detractors from the percentage of Promoters. For example, if 50% of respondents were Promoters and 10% were Detractors, NPS is a 40. NPS is a useful gauge of the loyalty of client relationships and can be compared across companies and industries. We use our NPS results to provide attention to Detractor customers and use those in the Promoter category as a predictive indicator of long-term customer relationships;
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“Partnership Agreement” means the limited partnership agreement of the Investor;
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“Securities Act” means the Securities Act of 1933, as amended;
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“SEC” means the U.S. Securities and Exchange Commission;
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“SOX” means the U.S. Sarbanes-Oxley Act of 2002, as amended;
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“TRA Participants” means certain pre-IPO owners that will participate in the tax receivable agreement;
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“U.K. Bribery Act” means the U.K. Bribery Act 2010; and
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“underwriters” means the firms listed in the first table under the caption “Underwriting.”
For ease of reference, we have repeated definitions for certain of these terms in other portions of the body of this prospectus. All such definitions conform to the definitions set forth above.
Numerical figures included in this prospectus have been subject to rounding adjustments. Accordingly, numerical figures shown as totals in various tables may not be arithmetic aggregations of the figures that precede them.
Basis of Presentation
We operate on a 52-week or 53-week fiscal year ending on the last Friday of December each year. Our fiscal year is divided into four quarters of 13 weeks, each beginning on a Saturday and containing one 5-week period followed by two 4-week periods. When a 53-week fiscal year occurs, we report the additional week in the fourth fiscal quarter. References to fiscal year 2020 are to our 52-week fiscal year ended December 25, 2020 and references to fiscal year 2019 are to our 52-week fiscal year ended December 27, 2019.
Trademarks and Service Marks
The Snap One design logo, Snap One, Control4, OvrC, 4Sight, NEEO, Parasol, WattBox, Araknis Networks, Triad and our other registered or common law trademarks, service marks or trade names appearing in this prospectus are our property. Solely for convenience, our trademarks, tradenames and service marks referred to in this prospectus appear without the ®, TM and SM symbols, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights to these trademarks, tradenames and service marks. This prospectus contains additional trademarks, tradenames and service marks of other companies that are the property of their respective owners. We do not intend our use or display of other companies’ trademarks, trade names or service marks to imply ownership of them, nor relationships with, or endorsement or sponsorship of us by, these other companies.
Market, Industry and Other Data
This prospectus contains statistical data that we obtained from industry publications and reports. These publications generally indicate that they have obtained their information from sources believed to be reliable. However, we have not independently verified any third-party information. In addition, some data and other information contained in this prospectus, such as certain market, ranking and industry data, including the size of certain markets and our size or position and the positions of our competitors within these markets, are also based on management’s estimates and calculations, which are derived from our review and interpretation of internal surveys and independent sources. While we believe such estimates and calculations are reliable, our internal data has not been verified by any independent source. In addition, assumptions and estimates of our and our industry’s future performance are necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in “Risk Factors.” These and
other factors could cause our future performance to differ materially from our assumptions and estimates. See “Special Note Regarding Forward-Looking Statements.”
Non-GAAP Financial Measures
This prospectus contains “non-GAAP financial measures” that are financial measures that either exclude or include amounts that are not excluded or included in the most directly comparable measures calculated and presented in accordance with GAAP. Specifically, we make use of the non-GAAP financial measures Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow.
Adjusted EBITDA, Adjusted Net Income and Contribution Margin have been presented in this prospectus as supplemental measures of financial performance and Free Cash Flow has been presented as a supplemental measure of liquidity. These measures are not required by, or presented in accordance with, GAAP, but we present them because we believe these supplemental measures assist investors and analysts in comparing our operating performance across reporting periods on a consistent basis, such as Adjusted EBITDA, Adjusted Net Income and Contribution Margin and by excluding items that we do not believe are indicative of our core operating performance. Management believes Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow are useful to investors in highlighting trends in our performance, while other measures can differ significantly depending on long-term strategic decisions regarding capital structure, the tax jurisdictions in which we operate, and capital investments. Management uses Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow to supplement GAAP measures of performance in the evaluation of the effectiveness of our business strategies, to make budgeting decisions, to establish discretionary annual incentive compensation and to compare our performance against that of other peer companies using similar measures. Management may supplement GAAP results with non-GAAP financial measures to provide a more complete understanding of the factors and trends affecting the business, which GAAP results alone may not provide.
Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow are not recognized terms under GAAP and should not be considered as an alternative to net loss or income (loss) from operations as a measure of financial performance or cash provided by (used in) operating activities as a measure of liquidity or any other performance measure derived in accordance with GAAP. Additionally, these measures are not intended to be a measure of free cash flow available for management’s discretionary use, as they do not consider certain cash requirements such as interest payments, tax payments and debt service requirements. The presentations of these measures have limitations as analytical tools and should not be considered in isolation or as a substitute for analysis of our results as reported under GAAP. Because not all companies use identical calculations, the presentations of these measures may not be comparable to other similarly titled measures of other companies and can differ significantly from company to company. For a discussion of the use of these measures and a reconciliation of the most directly comparable GAAP measures, see “Summary Consolidated Financial and Other Data.”
PROSPECTUS SUMMARY
This summary highlights information contained in greater detail elsewhere in this prospectus and does not contain all of the information that you should consider in making your investment decision. Before investing in our common stock, you should carefully read this entire prospectus, including our financial statements and the related notes included elsewhere in this prospectus, and the information set forth under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
Unless otherwise indicated in this prospectus, references to the “Company,” “Snap One,” “we,” “us” and “our” refer to Snap One Holdings Corp. and its consolidated subsidiaries.
Our Vision
Bringing together people, integrators and products to deliver joy, connectivity and security in our everyday lives.
Company Overview
Snap One powers smart living by enabling professional integrators to deliver seamless experiences in the connected homes and small businesses where people live, work and play. The combination of our end-to-end product ecosystem and our technology-enabled workflow solutions, which we refer to as our “Only Here” strategy, delivers a compelling value proposition to our loyal and growing network of over 16,000 professional do-it-for-me (“DIFM”) integrators. We believe that Only Here can integrators access a leading, comprehensive suite of products and software solutions that enable a “one-stop shop” experience. Only Here can integrators support their customers via our industry-leading remote management software platform, which reaches approximately 345,000 active homes and businesses as of March 26, 2021. Only Here can integrators enjoy the convenience of an e-commerce centric, omni-channel offering to support their workflow. Only Here can our third-party product partners efficiently access our expansive integrator network and connect with the broader Snap One product and software ecosystem. By partnering with Snap One, integrators can focus on their trade and leverage the tools and infrastructure that we deliver to build thriving and profitable businesses. We believe our Only Here value proposition becomes embedded into integrators’ workflow throughout the project lifecycle, creating re-occurring spending patterns that strengthen our integrator relationships and enhance our revenue visibility from our integrator base. Snap One was founded by integrators for integrators and we believe our Only Here experience makes us our integrators’ partner of choice.
The world we live in has become technology-centric. The home’s evolving importance as a place to live, work, and play, is fueling accelerated investment in smart living solutions. The smart living market continues to develop and currently reflects a highly fragmented set of point products and services from a broad spectrum of industry participants. While continued innovation drives consumer awareness of smart living experiences, it also creates significant complexity and challenges for end consumers and professionals seeking immersive, integrated, and supported systems. As a result, end consumers are increasingly turning to professionals to design, install, configure and enable personalized, user-friendly smart living experiences. Similarly, we believe professional integrators are seeking to standardize on technology-enabled platforms that enable them to operate successful businesses and to deliver high-quality smart living solutions for their customers.
Snap One is the partner of choice for professional integrators. Our leading end-to-end ecosystem of over 2,800 proprietary SKUs, alongside a curated set of third-party products, provides differentiated portfolio depth and the convenience of a “one-stop shop” experience for our integrators. Our industry-leading software solutions enhance the interoperability of our products and enable our emerging portfolio of subscription-based services sold to end consumers. We are vertically integrated, with approximately 70% of fiscal year 2020 net sales coming from our proprietary-branded, internally developed products that are only available to integrators directly from Snap One. These proprietary products are manufactured on an asset-light basis through our network of contract manufacturing and joint development suppliers primarily in Asia and support our strong net sales of $814.1 million and Contribution Margin of 41.7%, in each case during fiscal year 2020. See “Summary Consolidated Financial Data” for information regarding our use of
Contribution Margin. In addition, we support our integrators with a comprehensive suite of technology-enabled workflow solutions. We engage with our integrators on an omni-channel basis, blending the benefits of our comprehensive e-commerce portal with the convenience of our local branch network for same-day product availability. We support our integrators throughout the entire lifecycle of their projects from pre-sale product research and system design to post-installation end consumer support via our proprietary OvrC software, which enables integrators to remotely manage, configure and troubleshoot devices in the field. We believe our solutions make it easier for professional integrators to operate and profitably grow their businesses, contributing to increased retention and wallet share growth with us over time. We believe our Only Here value proposition creates entrenched relationships and re-occurring spending patterns with our integrators. We believe these favorable integrator dynamics yield an attractive financial profile with a high degree of visibility into integrators’ spending patterns.
We continue to successfully grow our business with a significant focus on operational excellence. We generated net sales of $814.1 million in fiscal year 2020, a 37.8% increase from $590.8 million in fiscal year 2019, and net sales of $220.5 million for the fiscal quarter ended March 26, 2021, a 27.7% increase from $172.6 million for the fiscal quarter ended March 27, 2020. On a pro forma basis to give effect to the acquisitions of Marketing Representatives, Inc. (“MRI”), Custom Plus Distributing, Inc. (“CPD”) and Control4 Corporation (“Control4”) as if they had occurred on the first day of fiscal year 2019, our combined net sales and net loss in fiscal year 2019 would have been $763.8 million and $69.4 million, respectively. For fiscal year 2020 and the fiscal quarter ended March 26, 2021 our net loss was $25.2 million and $6.0 million, respectively, and our Adjusted EBITDA was $94.5 million and $23.3 million, respectively. See “Summary Consolidated Financial Data” for information regarding our use of Adjusted EBITDA and a reconciliation to net loss.
Our Market Opportunity
The continued evolution, enhancement, and ease of use of connected technology is providing homeowners and businesses access to previously unimagined experiences. The growing global residential and commercial technology market is comprised of Do-it-Yourself (“DIY”) and Do-It-For-Me (“DIFM”) end consumer spend, which Frost & Sullivan estimates is expected to grow at a 9.3% compound annual growth rate from $329.2 billion in 2020 to $513.1 billion in 2025.
The DIFM sub-market that we serve is distinct from the DIY sub-market, and is characterized by consumers with higher expectations, more complicated projects, higher disposable income, and greater use of professionals, contractors and service providers in other parts of their lives. DIFM consumers typically spend $10,000 to $20,000 for professional integrators to design, select the best products, and install and configure their systems. Frost & Sullivan estimates that integrator spend in the domestic DIFM sub-market (consisting of home technology, security, and commercial) will grow at an 8.7% compound annual growth rate from $43.0 billion in 2020 to $65.2 billion in 2025.
We believe the following trends will continue to accelerate the global home technology market and support the increasing importance of the DIFM integrator to deliver the experiences that end consumers seek.
Increasing Awareness and Adoption of Smart Living Solutions
Consumer adoption of smart living solutions continues to rise, driven by increasing access to high-speed internet service and growth in smart connected devices, streaming services, voice assistants and simple and unified control experiences. Well-known technology leaders such as Alphabet, Amazon and Apple have created innovative and affordable point products that have broadened access to entry level smart living experiences and increased interest in the full potential of the home. According to Statista, smart home penetration in the United States is expected to increase to 57% in 2025 from 37% in 2020, and we believe consumers will increasingly demand more complete and complex systems.
Growing Desire for Entertainment, Security, Comfort, and Energy Efficiency in the Home
Now more than ever before, people live, work and play at home. As a result, there is a growing demand to enhance the at-home experience with immersive, simple, integrated and supported products and systems. For example, end consumers want:
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High-end home entertainment systems to support direct-to-streaming movie releases;
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Multi-room audio systems to stream and listen to their favorite music from any place with the click of a button on their phone;
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Home security and video surveillance with smart phone and tablet accessibility to help ensure their family stays safe;
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Smart lighting, shades, heating, and cooling systems to manage their environment and make their home more energy-efficient;
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Reliable, whole-home networks that ensure connectivity for multiple simultaneous uses by the entire family such as video conferencing indoors while streaming a movie in the backyard; and
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Intuitive and flexible control solutions to unify the interactive experience in the home.
Consumer Pain Points Driving Increasing Need for Professional Integrators
The direct-to-consumer smart living product category is highly fragmented, with thousands of disparate, unintegrated point products across multiple categories resulting in an experience that is frustrating, complicated and time-intensive for the end consumer. Mass market DIY products are intended to meet single-point tasks, and are not generally designed to seamlessly integrate across multiple manufacturers into a fully personalized smart living solution, nor to meet the exacting needs of high-end purchasers. We believe a large and growing segment of end consumers want the best available smart living experience and that they are willing to pay for professional assistance to create a fully integrated system and to service and upgrade it over time.
Challenges for Integrators Driving Need for a Partner that is a One-Stop Shop for All Their Needs
The typical integrators we serve are small- to medium-sized businesses that enable smart living. They are experts experienced in designing, installing and servicing complex, fully-integrated connected home and business systems. These integrators serve DIFM consumers who typically spend $10,000 to $20,000 per job.
Due to their small size, integrators often face significant challenges to meet the needs of their end customers and operate their businesses efficiently. Integrators need a partner that can serve as a one-stop shop for the products, software, tools and training that they need day in and day out to efficiently operate their businesses and deliver great experiences for end consumers.
Our Differentiated Solution
We believe our integrated platform of products, software and technology-enabled solutions that are embedded into the integrator’s workflow is unmatched in the industry. We simplify the challenges associated with designing a smart living system and enable our integrators to create solutions that are cohesive, functional and efficient.
Our End-to-End Product Ecosystem
We provide integrators with a leading, comprehensive suite of connected, infrastructure, entertainment and software solutions so the entire smart living experience is exceptional for the end consumer. Our product and service offerings encompass all of the design elements required by integrators to build integrated smart living systems that are easy to install and simple to manage, serving the needs of both integrators and end consumers.
•
Proprietary Products and Software. We have developed a broad range of over 2,800 proprietary SKUs that encompass the spectrum of solutions needed to deliver integrated smart living systems. These products and software are sold under our proprietary brands and are only sold through Snap One with confidential wholesale prices that allow integrators to maximize their profitability. Through our proprietary software, Control4 OS3 and OvrC, we allow integration with thousands of products manufactured by hundreds of third-party manufacturers, and our products are compatible with connected devices from leading brands such as Alphabet, Amazon and Apple.
•
Third-Party Products. In addition to our proprietary solutions, we have partnered with and sell a curated set of leading third-party products from brands such as Alphabet, Amazon, KEF, Klipsch, Lutron, Samsung, Sony, Sonos, Ubiquiti and Yamaha, which provide our integrators a one-stop shop for their product needs. We provide these third-party partners with differentiated access to our expansive network of integrators through our omni-channel model and compatibility with our leading software solutions, which ensures those products can be seamlessly integrated into a system and easily supported after installation.
Our Technology-Enabled Workflow Solutions
Our differentiated technology and software-enabled workflow tools have been designed to support the integrator throughout the project lifecycle, enhancing their operations and helping them to profitably grow their businesses.
•
Integrator Job Lifecycle Service and Support. We provide comprehensive certification and award-winning training and support services, enabling integrators’ ongoing success and business efficiency. Our comprehensive services are delivered through multiple channels, including through our cloud software, on our e-commerce portal and at our local branches, and encompass every step of the integrator job lifecycle from research, training and on-the-job technical help, through post-installation support. We believe the 16 CE Pro Quest for Quality Awards we won in 2021 are a testament to the value of our service and support programs for integrators.
•
Cloud-Based Software. We have developed a suite of proprietary cloud-based software solutions that are embedded in the integrator’s workflow through the lifecycle of a project and enable remote management and monitoring of connected devices after installation. Our Control4 Composer tool provides an easy-to-use interface that helps integrators configure highly customized control systems for end consumers. OvrC is a free, cloud-based software, which enables integrators to remotely monitor, troubleshoot and manage connected devices on a system. By utilizing these software tools, integrators can significantly increase efficiency by reducing the need for service calls and ensuring that their customers’ mission-critical systems are installed properly and supported thereafter.
•
Omni-Channel Model. We provide a comprehensive e-commerce portal for smart living, which is tailored to allow integrators to research products, design projects, receive training and certifications, order products and solicit ongoing support. We supplement our e-commerce portal with a growing footprint of 26 local branches as of March 26, 2021. These local branches are key to supporting our growth strategy and delivering additional value to integrators by ensuring they can receive critical products on a same-day basis to support project requirements, while attending in-person trainings and using local demonstration rooms to test new products.
The integration of our end-to-end product and software ecosystem and technology-enabled workflow solutions drives industry-leading efficiency for our integrators, which in turn drives loyalty and increased use of our platform over time. During fiscal year 2020, our net dollar retention rate was over 100% for domestic integrators, highlighting the re-occurring nature of our business model as integrators continue to do business with Snap One. For domestic integrators who purchased from us in fiscal year 2019, “net dollar retention” is fiscal year 2020 spend of those integrators divided by their fiscal year 2019 spend.
Our Competitive Strengths
We believe the following competitive strengths distinguish us from our competitors and position us for continued leadership in enabling connectivity in the home:
•
Partner of Choice for Smart Living Integrators. Snap One was founded by integrators for integrators. We intentionally designed our integrated platform through the lens of the integrator to enhance their operations by simplifying the product purchasing experience and delivering high-quality products at a good value, while at the same time providing technology-enabled tools and support services to help them run their businesses more efficiently. Snap One is a leading partner for professional integrators, transacting with over 20% of the domestic DIFM market. We believe our strong position with integrators is evidenced by our NPS of 55 among domestic integrators who have purchased from Snap One between March 2020 and March 2021, compared to competing brands’ average NPS
of -2. In addition to a strong position with our integrators evidenced by our NPS, approximately 75% of our fiscal year 2020 e-commerce portal net sales came from integrators who have been our customers for at least five years (as represented by integrators whose first purchase was made in fiscal year 2015 or prior).
•
Self-Reinforcing Flywheel Drives Re-Occurring Growth. We believe our significant scale combined with our high frequency, re-occurring and multi-layered relationship with our integrators drives profitable growth and a deep, up-to-the-minute understanding of the evolving needs of integrators and end consumers. This scale and insight fuels our investment in the sales experience and innovation across our end-to-end product and software ecosystem and our differentiated technology-enabled workflow solutions, which further reinforces our strong integrator relationships. This creates a self-reinforcing flywheel and is the key engine of our re-occurring revenue and growth. As we innovate, we make the integrator more efficient and provide end consumers with solutions and experiences that enhance the places they live, work and play. This in turn helps accelerate industry adoption, which drives strong growth for Snap One as integrators continue to return to us for their smart living needs project after project.
•
End-to-End Ecosystem of Products and Software. We have built an end-to-end ecosystem across a broad portfolio of proprietary products and software that integrates with leading third-party products. Our approximately 2,800 proprietary SKUs, which represented over 70% of our fiscal year 2020 net sales, are sold under exclusive brands and in many cases are acknowledged as best in their category by industry groups. In addition to our proprietary products, we sell a curated set of leading third-party products which integrate into the broader Snap One product and software ecosystem. With our full suite of product and software solutions, integrators can find everything they need in one place and to deliver high-quality, reliable and configurable smart living systems to their customers.
•
Innovation to Drive Continuous Improvement. We have a proven track record of innovation through significant investments in research and development (“R&D”) to build a robust, integrated platform of proprietary products, software and technology-enabled workflow solutions that power the smart living experience. Our product and software development process fosters an innovation feedback loop whereby we utilize the user and integrator feedback and learnings from our cloud software to continually enhance existing solutions to meet the demands of the connected homes and businesses of tomorrow. We believe this feedback loop combined with our joint-development model of partnering with manufacturers around the latest technologies, allows us to rapidly and efficiently bring new technology to market with lower R&D risk to Snap One.
•
Technology-Enabled Solutions Embedded in the Integrator Workflow Make it Easier to Do Business. Our mission is to empower integrators to make it easier for them to profitably grow their businesses and deliver best-in-class immersive experiences to end consumers. Our scale allows us to continue to invest in and develop differentiated technology tools that are embedded into the integrator’s workflow to support their projects’ lifecycle needs. Our e-commerce platform has rich content to inform product research, design tools to enhance project planning, training materials and installation guides, and a robust forum where integrators can learn about and discuss solutions and technical issues before and during installation. We supplement this content with an experienced team of customer and technical support employees. We also offer a suite of proprietary cloud-based software solutions which allow integrators to configure the logic rules of a connected home or business and give integrators the ability to manage all connected devices remotely. We believe these technology tools and services drive stickiness as integrators build their businesses around these capabilities and train their employees to use our software and products.
•
E-Commerce Driven, Omni-Channel Strategy. Our business model is built around an e-commerce centric, omni-channel go-to-market strategy. We provide a comprehensive e-commerce portal through which approximately 70% of our net sales in fiscal year 2020 were placed. Our digital “front door” is complemented by an extensive network of 26 local branches and seven distribution centers, as of March 26, 2021, which we expect to expand in the future. The local branch presence is an important part of our strategy as it allows us to better serve integrators locally by providing same day product availability when necessary, while creating a site for relationship building, training and product demonstration sessions. Integrators value the relationships and support we deliver at the local level, and we believe this further increases their stickiness with our business across channels.
Our Growth Strategy
We believe that end consumers need a professionally integrated platform for the next generation of smart living spaces. The following are the central pillars to our growth strategy that we believe will enable us to provide integrators and end consumers with the solutions and workflow tools that will power the smart living spaces of tomorrow:
•
Consistent Innovation with New Products, Software and Solutions. Our close relationship with our integrator base and learnings from our cloud-based software provide a continuous feedback loop to drive ongoing product and software enhancements. This feedback has helped us identify and enter new market segments such as speakers and networking, develop new products, and improve existing products. We will continue to invest in enhancing our product suite and software, and in developing technologies to make integrators more efficient.
•
Drive Wallet Share Gains with Existing Integrators. We believe we have a significant wallet share expansion opportunity with our existing integrator base of over 16,000 domestic DIFM integrators with whom we do business. Across our entire base of domestic integrators, we capture on average approximately $40,000 of annual spend and those integrators purchase on average approximately eight different product categories from us. Over time, we typically grow integrators’ wallet share with us, as exemplified by the top ten percent of our domestic integrators spending on average approximately $240,000 annually across approximately 17 different product categories with us. This is compared with Frost & Sullivan’s estimate of over $600,000 in average annual product spend for all domestic integrators. This suggests we have significant room to grow sales by increasing wallet share with existing integrators. Average wallet share with all of our integrators varies across DIFM markets, with particular strength in home technology, and demonstrated success in commercial and security. In a survey conducted by Frost & Sullivan, integrators indicated that on average they purchase product from twelve sources, and approximately 20% of respondents indicated that Snap One was their most used source for installation equipment from March 2020 to March 2021 (more than twice the share of the next highest source). As we continue to expand our omni-channel coverage, extend our product suite, bolster our support services and create deeper integration across our products, we believe we will be able to drive continued wallet share gains by making it compelling for integrators to use Snap One as their primary one-stop shop.
•
Grow Our Network of Integrators. We are making investments to grow our network of integrators across home technology and the attractive security and commercial markets, where we have low market penetration today. According to Frost & Sullivan, integrator spend in the domestic DIFM security and commercial markets represented more than $36.2 billion in 2020 and is expected to grow to more than $52.8 billion in 2025, representing a compound annual growth rate of 7.8%. In addition, we believe the market for continued geographic expansion represents a significant opportunity for Snap One given our modest presence outside North America today. According to Frost & Sullivan, integrator spend in the international DIFM (consisting of home technology, security and commercial) market in 2020 was more than $106.2 billion.
•
Efficiently Expand Our Software Solutions and Subscription-Based Revenue Models. As we expand our penetration of connected homes and businesses domestically, we will continue to invest in the expansion of our existing subscription-based services and in the development of new subscription-based services. Given the reach of OvrC with approximately 345,000 active homes and businesses on the platform as of March 26, 2021, we can efficiently reach a large base of potential end consumers for subscription-based services. We believe our leadership position and expanding presence in the home will allow us to develop new high margin, recurring software-driven services.
•
Continue to Pursue Accretive Acquisitions. Our disciplined acquisition strategy is core to our growth, with past acquisitions complementing our product suite and expanding our nationwide coverage. Over the last five years, we have successfully completed and integrated more than ten acquisitions targeting new products and geographies and enhancing our workflow solutions. We will continue to pursue future acquisitions that selectively enhance our products, software and workflow solutions and expand into adjacent markets that allow us to serve our integrator base.
Risk Factor Summary
The following is a summary of the principal risks that could adversely affect our business, operations and financial results:
•
Our quarterly results of operations have fluctuated and may continue to fluctuate. As a result, we may fail to meet or exceed the expectations of investors or securities analysts, which could cause our stock price to decline.
•
If we are unable to manage our business growth and diverse and complex operations, our reputation in the market and our ability to generate net sales from new or existing integrators and end consumers may be harmed.
•
The markets in which we participate are highly competitive and many companies, including large technology companies, retailers, electronics distributors, broadband and security service providers, as well as other managed service providers, are actively targeting our markets. Our failure to differentiate ourselves and compete successfully against these companies would make it difficult for us to add and retain customers, and our sales and profitability could be adversely affected.
•
End consumers may choose to adopt products that provide discrete functionality or do-it-yourself (“DIY”) solutions rather than adopt our professionally-installed solutions. If we are unable to increase market acceptance of the benefits of our professionally-installed solutions, our net sales may not continue to grow, or they may decline.
•
If we are unable to develop new solutions, sell our solutions into new markets, or further penetrate our existing markets, our net sales may not grow as expected or they may decline.
•
We have entered into several strategic arrangements and intend to pursue additional strategic opportunities in the future. If the intended benefits from our strategic relationships are not realized, our results of operations may be harmed.
•
Our strategy includes pursuing acquisitions and our potential inability to identify good opportunities and to successfully integrate newly-acquired technologies, assets, businesses, or personnel may harm our financial results.
•
We have relatively limited visibility regarding the end consumers that ultimately purchase our products, and we often rely on information from third-party integrators to help us manage our business. If we are unable to obtain timely or accurate information, our ability to quickly react to market changes and effectively manage our business may be harmed.
•
If we are unable to adapt to technological change and implement technological and aesthetic enhancements to our products, this could impair our ability to remain competitive.
•
Product quality issues and a higher-than-expected number of warranty claims or returns could harm our business and operating results.
•
We currently rely on contract manufacturers to manufacture our products and on component vendors to supply parts used in our products. We also distribute products manufactured by other companies. Any disruption in our supply chain, or our failure to successfully manage our relationships with our suppliers or logistics partners could harm our business.
•
Our substantial indebtedness could materially adversely affect our financial condition and our ability to operate our business, react to changes in the economy or industry or pay our debts and meet our obligations under our debt and could divert our cash flow from operations for debt payments.
•
We will be required to pay the TRA Participants for net operating losses and certain other tax benefits we may claim that arose prior to or in connection with this offering, which amounts are expected to be material.
•
We may be required to make payments under our contingent value rights agreement with certain former holders.
•
We are controlled by Hellman & Friedman, whose interests may be different from the interests of other holders of our securities.
Recent Developments
On May 28, 2021, we completed the acquisition of ANLA, Inc. (“Access Networks”), an enterprise-grade networking solutions provider offering network design, configuration, monitoring and support services and products. We expect that the acquisition will enhance our networking solutions for residential and commercial networks. Under the purchase agreement, we agreed to a purchase price of $38.1 million, consisting of both cash and equity, plus contingent consideration of up to $2.0 million based upon the achievement of specified financial targets.
Equity Conversion
Prior to this offering, the Investor is our sole stockholder and holds shares of our common stock. The unitholders of the Investor are Hellman & Friedman and certain of our directors, officers and other of our current and former employees. Immediately after the pricing of this offering, (i) the Investor will distribute all the shares of our common stock that it holds to holders of vested units of the Investor and (ii) we will exchange the unvested Incentive Units, all of which are held by our officers and other of our current and former employees, for newly issued shares of our restricted common stock, in each case in accordance with the Partnership Agreement. In accordance with the Partnership Agreement, the number of shares of our (a) common stock to be distributed by the Investor to the holders of vested units of the Investor or (b) restricted common stock exchanged by us with holders of unvested Incentive Units will, in each case, be on the basis of a ratio that takes into account the applicable distribution threshold applicable to such units and the value of the distributions that the holder thereof would have been entitled to receive had the Investor liquidated on the date of such distribution in accordance with the terms of distribution provisions set forth in the Partnership Agreement, based on a valuation of the Company using the initial public offering price per share of our common stock in this offering. Promptly after such distribution and exchange have occurred, the Investor will not own any of our shares of common stock and will liquidate in accordance with the provisions of the Partnership Agreement. Assuming an initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover of this prospectus, Hellman & Friedman will hold common stock equal to approximately % of our outstanding shares immediately after this offering (or % if the underwriters exercise in full their option to purchase additional shares) and the other vested unitholders will collectively hold common stock equal to approximately % of our outstanding shares (or % if the underwriters exercise in full their option to purchase additional shares), and the holders of unvested Incentive Units will collectively hold restricted common stock equal to approximately % of our outstanding shares, in each case immediately after the offering. See “Principal and Selling Stockholders.”
Our Sponsors
Hellman & Friedman is a preeminent global private equity firm with a distinctive investment approach focused on large-scale equity investments in high quality growth businesses. H&F seeks to partner with world-class management teams where its deep sector expertise, long-term orientation and collaborative partnership approach enable companies to flourish. H&F targets outstanding businesses in select sectors including healthcare, software & technology, financial services, consumer & retail, and other business services.
Since its founding in 1984, H&F has invested in over 100 companies. The firm is currently investing its tenth fund, with over $23 billion of committed capital, and has over $70 billion in assets under management as of March 31, 2021.
Corporate Information
We were incorporated in Delaware on June 14, 2017 as Crackle Intermediate Corp. On March 29, 2021, we changed our name to Snap One Holdings Corp. Our company also conducts business under the name SnapAV. Our principal executive offices are located at 1800 Continental Boulevard, Suite 200 Charlotte, North Carolina 28273 and 11734 S Election Road, Draper, Utah 84020. Our telephone number is (704) 927-7620 or (801) 523-3100 for our Utah office. Our website address is www.snapav.com. Information contained in, or that can be accessed through, our website does not constitute part of this prospectus, and inclusions of our website address in this prospectus are inactive textual references only.
Implications of Being an Emerging Growth Company
We qualify as an “emerging growth company” as defined in the JOBS Act. For so long as we remain an emerging growth company, we are permitted and currently intend to rely on the following provisions of the JOBS Act that contain exceptions from disclosure and other requirements that otherwise are applicable to companies that conduct initial public offerings and file periodic reports with the SEC. These provisions include, but are not limited to:
•
being permitted to present only two years of audited financial statements in this prospectus and only two years of related “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this prospectus;
•
not being required to comply with the auditor attestation requirements of Section 404 of SOX;
•
reduced disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements, including in this prospectus; and
•
exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
We will remain an emerging growth company until:
•
the first to occur of the last day of the fiscal year (i) that follows the fifth anniversary of the completion of this offering, (ii) in which we have total annual gross revenue of at least $1.07 billion or (iii) in which we are deemed to be a “large accelerated filer,” as defined in the Exchange Act; or
•
if it occurs before any of the foregoing dates, the date on which we have issued more than $1 billion in non-convertible debt over a three-year period.
We have elected to take advantage of certain of the reduced disclosure obligations in this prospectus and may elect to take advantage of other reduced reporting requirements in our future filings with the SEC. As a result, the information that we provide to our stockholders may be different than what you might receive from other public reporting companies in which you hold equity interests.
We have elected to avail ourselves of the provision of the JOBS Act that permits emerging growth companies to take advantage of an extended transition period to comply with new or revised accounting standards until those standards apply to private companies. As a result, we will not be subject to new or revised accounting standards at the same time as other public companies that are not emerging growth companies.
For additional information, see “Risk Factors — Risks Related to this Offering and Ownership of Our Common Stock — We are an “emerging growth company” and the reduced disclosure requirements applicable to emerging growth companies may make our common stock less attractive to investors.”
The Offering
Common stock offered by us
shares.
Option to purchase additional shares
The underwriters have been granted an option to purchase up to additional shares of common stock from us and the selling stockholders at any time within 30 days from the date of this prospectus to cover over-allotments.
Common stock to be outstanding immediately after this offering
shares, or shares if the underwriters exercise their option to purchase additional shares of common stock in full.
We estimate that the net proceeds to us from this offering, after deducting underwriting discounts and commissions and estimated offering expenses payable by us, will be approximately $ million (or $ million if the underwriters exercise their option to purchase additional shares of common stock in full), based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus.
We will not receive any proceeds from any exercise by the underwriters of their option to purchase additional shares from the selling stockholders. The selling stockholders will receive all of the net proceeds and bear all commissions and discounts, if any, from the sale of our common stock by the selling stockholders. See “Principal and Selling Stockholders.”
We intend to use a portion the net proceeds received by us from this offering to repay a portion of the term loan outstanding under our Credit Agreement, plus accrued interest thereon, and the remainder for general corporate purposes. See “Use of Proceeds.”
A $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, would increase (decrease) the net proceeds to us from this offering by $ million, assuming the number of shares offered by us, as set forth on the front cover of this prospectus, remains the same and after deducting the assumed underwriting discounts and commissions and estimated offering expenses payable by us. An increase (decrease) of 100,000 shares from the expected number of shares to be sold by us in this offering, assuming no change in the assumed initial public offering price per share, which is the midpoint of the price range set forth on the front cover of this prospectus, would increase (decrease) our net proceeds from this offering by $ million.
See “Risk Factors” and the other information included in this prospectus for a discussion of the factors you should consider carefully before deciding to invest in our common stock.
We currently do not intend to declare any dividends on our common stock in the foreseeable future. See “Dividend Policy.”
At our request, the underwriters have reserved up to shares, or up to 5% of the common shares offered by this prospectus,
for sale at the initial public offering price through a directed share program to certain of our directors, employees and partner providers. The sales will be made at our direction by Morgan Stanley & Co. LLC and its affiliates through a directed share program. The number of our shares available for sale to the general public in this offering will be reduced to the extent that such persons purchase such reserved shares. Any reserved shares not so purchased will be offered by the underwriters to the general public on the same terms as the other shares offered by this prospectus. Participants in the directed share program will not be subject to lock-up or market standoff restrictions with the underwriters or with us with respect to any shares purchased through the directed share program, except in the case of shares purchased by any of our directors or employees. For additional information, see “Underwriting — Directed Share Program.”
“SNPO”
Except as otherwise indicated, all information in this prospectus:
•
reflects a for 1 forward stock split effected on , 2021;
•
assumes no exercise by the underwriters of their option to purchase up to additional shares of common stock from us and the selling stockholders;
•
assumes the effectiveness, at the time of this filing, of our amended and restated certificate of incorporation and our amended and restated bylaws, the forms of which are filed as exhibits to the registration statement of which this prospectus is a part;
•
assumes an initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover of this prospectus;
•
includes the issuance of shares of restricted common stock to be issued to holders of unvested Incentive Units in connection with the Equity Conversion; and
•
does not (i) reflect shares of common stock available for future issuance under our 2021 Incentive Plan, including (a) shares of common stock underlying the restricted stock units and (b) shares of common stock issuable upon the exercise of options with an exercise price equal to the initial offering price we expect to award to certain employees in connection with this offering, or (ii) shares of common stock available for future issuance under our 2021 Employee Stock Purchase Plan.
A $1.00 increase in the assumed initial public offering price referred to above shall (i) modify the number of shares of restricted common stock to be received by the holders of Incentive Units in connection with the Equity Conversion resulting in an increase to the number of shares of common stock to be outstanding immediately after this offering by shares, (ii) decrease the number of shares of common stock underlying the restricted stock units we expect to award in connection with this offering by shares and (iii) decrease the number of shares of common stock issuable upon exercise of the options we expect to award in connection with this offering by shares.
A $1.00 decrease in the assumed initial public offering price referred to above shall (i) modify the number of shares of restricted common stock to be received by the holders of Incentive Units in connection with the Equity Conversion resulting in a decrease to the number of shares of common stock to be outstanding immediately after this offering by shares, (ii) increase the number of shares of common stock underlying the restricted stock units we expect to award in connection with this offering by shares and (iii) increase the number of shares of common stock issuable upon exercise of the options we expect to award in connection with this offering by shares.
Until the completion of the Equity Conversion, all of our outstanding common stock will be held by the Investor.
Summary Consolidated Financial and Other Data
The following table summarizes our consolidated financial and other data for the periods and dates indicated. The balance sheet data as of March 26, 2021 and the statements of operations and cash flow data for fiscal quarters ended March 26, 2021 and March 27, 2020 have been derived from our unaudited interim consolidated financial statements included elsewhere in this prospectus. The statements of operations and cash flow data for fiscal years 2020 and 2019 have been derived from our audited consolidated financial statements included elsewhere in this prospectus. Our historical results are not necessarily indicative of the results that may be expected in the future or any other period.
The summary consolidated financial data set forth below should be read in conjunction with “Risk Factors,” “Capitalization,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our audited consolidated financial statements included elsewhere in this prospectus.
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Statement of operations data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
|
|
$
|
220,468
|
|
|
|
|
$
|
172,611
|
|
|
|
|
$
|
814,113
|
|
|
|
|
$
|
590,842
|
|
|
|
Costs and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales, exclusive of depreciation and amortization
|
|
|
|
|
128,876
|
|
|
|
|
|
100,390
|
|
|
|
|
|
474,778
|
|
|
|
|
|
354,821
|
|
|
|
Selling, general and administrative expenses
|
|
|
|
|
75,357
|
|
|
|
|
|
67,386
|
|
|
|
|
|
267,240
|
|
|
|
|
|
209,986
|
|
|
|
Depreciation and amortization
|
|
|
|
|
13,712
|
|
|
|
|
|
14,483
|
|
|
|
|
|
57,972
|
|
|
|
|
|
39,657
|
|
|
|
Total costs and expenses
|
|
|
|
|
217.945
|
|
|
|
|
|
182,259
|
|
|
|
|
|
799,990
|
|
|
|
|
|
604,464
|
|
|
|
Income (loss) from operations
|
|
|
|
|
2,523
|
|
|
|
|
|
(9,648)
|
|
|
|
|
|
14,123
|
|
|
|
|
|
(13,622)
|
|
|
|
Other expenses (income):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
|
|
9,535
|
|
|
|
|
|
12,803
|
|
|
|
|
|
45,529
|
|
|
|
|
|
35,244
|
|
|
|
Other (income) expense
|
|
|
|
|
(213)
|
|
|
|
|
|
883
|
|
|
|
|
|
(1,827)
|
|
|
|
|
|
(1,048)
|
|
|
|
Total other expenses
|
|
|
|
|
9,322
|
|
|
|
|
|
13,686
|
|
|
|
|
|
43,702
|
|
|
|
|
|
34,196
|
|
|
|
Loss before income tax benefit
|
|
|
|
|
(6,799)
|
|
|
|
|
|
(23,334)
|
|
|
|
|
|
(29,579)
|
|
|
|
|
|
(47,818)
|
|
|
|
Income tax benefit
|
|
|
|
|
(763)
|
|
|
|
|
|
(4,316)
|
|
|
|
|
|
(4,351)
|
|
|
|
|
|
(13,357)
|
|
|
|
Net loss
|
|
|
|
|
(6,036)
|
|
|
|
|
|
(19,018)
|
|
|
|
|
|
(25,228)
|
|
|
|
|
|
(34,461)
|
|
|
|
Net loss attributable to noncontrolling interest
|
|
|
|
|
(22)
|
|
|
|
|
|
(24)
|
|
|
|
|
|
(344)
|
|
|
|
|
|
(97)
|
|
|
|
Net loss attributable to Company
|
|
|
|
$
|
(6,014)
|
|
|
|
|
$
|
(18,994)
|
|
|
|
|
$
|
(24,884)
|
|
|
|
|
$
|
(34,364)
|
|
|
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Per share data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share, basic and diluted
|
|
|
|
$
|
(15.23)
|
|
|
|
|
$
|
(49.00)
|
|
|
|
|
$
|
(63.41)
|
|
|
|
|
$
|
(88.72)
|
|
|
|
Weighted average common shares outstanding, basic and
diluted
|
|
|
|
|
394,778
|
|
|
|
|
|
387,601
|
|
|
|
|
|
392,431
|
|
|
|
|
|
387,353
|
|
|
|
Pro forma net loss per share, basic and diluted
(unaudited)(i)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro forma weighted average common shares outstanding, basic and diluted (unaudited)(i)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(i)
The supplemental pro forma net loss per share data has been computed, assuming an initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, to give effect to the number of shares whose proceeds would be used (a) to repay a portion of the term loan outstanding under our Credit Agreement, plus accrued interest thereon and (b) to pay a dividend to the Investor prior to the closing of this offering, the proceeds of which will be used to pay certain pre-IPO owners in lieu of their participation in the tax receivable agreement (approximately $ million as of March 26, 2021).
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
($ in thousands)
|
|
|
Cash flow data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating activities
|
|
|
|
$
|
(23,867)
|
|
|
|
|
$
|
(13,675)
|
|
|
|
|
$
|
64,227
|
|
|
|
|
$
|
(4,099)
|
|
|
|
Investing activities
|
|
|
|
$
|
(2,479)
|
|
|
|
|
$
|
(2,383)
|
|
|
|
|
$
|
(9,566)
|
|
|
|
|
$
|
(588,602)
|
|
|
|
Financing activities
|
|
|
|
$
|
(2,146)
|
|
|
|
|
$
|
45,087
|
|
|
|
|
$
|
(10,863)
|
|
|
|
|
$
|
617,904
|
|
|
|
Non-GAAP metrics:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA(1)
|
|
|
|
$
|
23,342
|
|
|
|
|
$
|
13,062
|
|
|
|
|
$
|
94,458
|
|
|
|
|
$
|
64,946
|
|
|
|
Adjusted Net Income(1)
|
|
|
|
$
|
9,034
|
|
|
|
|
$
|
(2,707)
|
|
|
|
|
$
|
28,311
|
|
|
|
|
$
|
19,694
|
|
|
|
Contribution Margin(1)
|
|
|
|
|
41.5%
|
|
|
|
|
|
41.8%
|
|
|
|
|
|
41.7%
|
|
|
|
|
|
39.9%
|
|
|
|
Free Cash Flow(1)
|
|
|
|
$
|
(25,917)
|
|
|
|
|
$
|
(16,080)
|
|
|
|
|
$
|
53,982
|
|
|
|
|
$
|
(8,595)
|
|
|
|
|
|
|
As of March 26, 2021
|
|
|
As of
|
|
|
|
|
|
Actual
|
|
|
As adjusted(2)
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Balance sheet data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$
|
48,943
|
|
|
|
|
$
|
|
|
|
|
|
$
|
77,458
|
|
|
|
|
$
|
33,177
|
|
|
|
Total assets
|
|
|
|
$
|
1,477,930
|
|
|
|
|
$
|
|
|
|
|
|
$
|
1,497,538
|
|
|
|
|
$
|
1,506,585
|
|
|
|
Total liabilities
|
|
|
|
$
|
865,219
|
|
|
|
|
$
|
|
|
|
|
|
$
|
879,799
|
|
|
|
|
$
|
869,658
|
|
|
|
Total stockholders’ equity
|
|
|
|
$
|
612,711
|
|
|
|
|
$
|
|
|
|
|
|
$
|
617,739
|
|
|
|
|
$
|
636,927
|
|
|
(1)
We define Adjusted EBITDA as net loss, plus interest expense, net, income tax benefit, depreciation and amortization, further adjusted to exclude equity-based compensation, acquisition- and integration- related costs and certain other non-recurring, non-core, infrequent or unusual charges. We define Adjusted Net Income as net loss plus amortization, further adjusted to exclude equity-based compensation, acquisition- and integration-related costs and certain non-recurring, non-core, infrequent or unusual charges, including the estimated tax impacts of these adjustments. We describe these adjustments reconciling net loss to Adjusted EBITDA and Adjusted Net Income in the table below and in Management’s Discussion and Analysis of Financial Condition and Results of Operations. We define Free Cash Flow as net cash provided by (used in) operating activities less capital expenditures (which consist of purchases of property and equipment as well as purchases of information technology, software development and leasehold improvements). We believe it is useful to exclude capital expenditures from our Free Cash Flow (in order to measure the amount of cash we generate without the effect of capital expenditures) because the timing of such capital investments made may not directly correlate to the underlying financial performance of our business operations. We define Contribution Margin for a particular period as net sales less cost of sales, exclusive of depreciation and amortization, divided by net sales.
We present Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow because we believe they are useful indicators of our operating performance and liquidity. Our management uses Adjusted EBITDA, Adjusted Net Income and Contribution Margin principally as a measure of our operating performance and Free Cash Flow principally as an indicator of liquidity, and believes that Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow are useful to investors because they are frequently used by analysts, investors and other interested parties to evaluate companies in our industry. We also believe Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow are useful to our management and investors as a measure of comparative operating performance, in the case of Adjusted EBITDA, Adjusted Net Income and Contribution Margin, and liquidity, in the case of Free Cash Flow, from period to period.
Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow are non-GAAP financial measures and should not be considered as an alternative to net loss or income (loss) from operations as a measure of financial performance or cash provided by operating activities as a measure of liquidity, or any other performance measure derived in accordance with GAAP and they should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items. In evaluating Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow, you should be aware that in the future we may incur expenses that are the same as or similar to some of the adjustments in this presentation. Our presentation of Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow should not be construed to imply that our future results will be unaffected by any such adjustments. Management compensates for these limitations by primarily relying on our GAAP results in addition to using Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow and supplementally.
Our Adjusted EBITDA, Adjusted Net Income Contribution Margin and Free Cash Flow measures have limitations as analytical tools, and you should not consider them in isolation, or as a substitute for analysis of our results as reported under GAAP. Some of these limitations are:
•
they do not reflect costs or cash outlays for capital expenditures or contractual commitments;
•
they do not reflect changes in, or cash requirements for, our working capital needs;
•
they do not reflect the interest expense, or the cash requirements necessary to service interest or principal payments, on our debt;
•
they do not reflect period to period changes in taxes, income tax expense or the cash necessary to pay income taxes;
•
they do not reflect the impact of earnings or charges resulting from matters we consider not to be indicative of our ongoing operations;
•
although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future, and they do not reflect cash requirements for such replacements; and
•
other companies in our industry may calculate these measures differently than we do, limiting their usefulness as comparative measures.
Because of these limitations, Adjusted EBITDA, Adjusted Net Income, Contribution Margin and Free Cash Flow should not be considered as measures of discretionary cash available to invest in business growth or to reduce indebtedness.
The following table provides a reconciliation of net loss to Adjusted EBITDA for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Net loss
|
|
|
|
$
|
(6,036)
|
|
|
|
|
$
|
(19,018)
|
|
|
|
|
$
|
(25,228)
|
|
|
|
|
$
|
(34,461)
|
|
|
|
Interest expense
|
|
|
|
|
9,535
|
|
|
|
|
|
12,803
|
|
|
|
|
|
45,529
|
|
|
|
|
|
35,244
|
|
|
|
Income tax benefit
|
|
|
|
|
(763)
|
|
|
|
|
|
(4,316)
|
|
|
|
|
|
(4,351)
|
|
|
|
|
|
(13,357)
|
|
|
|
Depreciation and amortization
|
|
|
|
|
13,712
|
|
|
|
|
|
14,483
|
|
|
|
|
|
57,972
|
|
|
|
|
|
39,657
|
|
|
|
Other (income) expense
|
|
|
|
|
(213)
|
|
|
|
|
|
883
|
|
|
|
|
|
(1,827)
|
|
|
|
|
|
(1,048)
|
|
|
|
Equity-based compensation
|
|
|
|
|
1,060
|
|
|
|
|
|
1,362
|
|
|
|
|
|
4,284
|
|
|
|
|
|
3,673
|
|
|
|
Fair value adjustment to contingent value rights(a)
|
|
|
|
|
1,310
|
|
|
|
|
|
(300)
|
|
|
|
|
|
800
|
|
|
|
|
|
314
|
|
|
|
Acquisition- and integration-related costs(b)
|
|
|
|
|
14
|
|
|
|
|
|
3,478
|
|
|
|
|
|
5,341
|
|
|
|
|
|
20,179
|
|
|
|
Initial public offering costs(c)
|
|
|
|
|
1,711
|
|
|
|
|
|
—
|
|
|
|
|
|
542
|
|
|
|
|
|
—
|
|
|
|
Deferred revenue purchase accounting adjustment(d)
|
|
|
|
|
148
|
|
|
|
|
|
370
|
|
|
|
|
|
1,012
|
|
|
|
|
|
831
|
|
|
|
Deferred acquisitions payments(e)
|
|
|
|
|
2,152
|
|
|
|
|
|
3,302
|
|
|
|
|
|
9,649
|
|
|
|
|
|
13,615
|
|
|
|
Other(f)
|
|
|
|
|
712
|
|
|
|
|
|
15
|
|
|
|
|
|
735
|
|
|
|
|
|
299
|
|
|
|
Adjusted EBITDA
|
|
|
|
$
|
23,342
|
|
|
|
|
$
|
13,062
|
|
|
|
|
$
|
94,458
|
|
|
|
|
$
|
64,946
|
|
|
(a)
Represents noncash losses recorded from fair value adjustments related to contingent value right liabilities. Contingent value right liabilities represent potential obligations to the prior sellers in conjunction with the Investor’s acquisition of the Company in August 2017 and are based on estimates of expected cash payments to the prior sellers based on specified targets for the Investor’s return on its original capital investment.
(b)
Represents costs directly associated with acquisitions and acquisition-related integration activities. For fiscal year 2020 and the fiscal quarter ended March 27, 2020, the costs relate primarily to third-party consultant and information technology integration costs directly related to the Control4 acquisition. For fiscal year 2019, the costs primarily relate to third-party professional fees and integration costs related to the Control4 acquisition as well as similar costs incurred in connection with the MRI and CPD acquisitions. These costs also include certain restructuring costs (e.g., severance) and other third-party transaction advisory fees associated with the acquisitions.
(c)
Represents expenses related to professional fees in connection with preparation for our initial public offering.
(d)
Represents an adjustment related to the fair value of deferred revenue related to the Control4 acquisition.
(e)
Represents expenses incurred related to deferred payments to employees associated with our Control4 acquisition and other historical acquisitions. The deferred payments are cash retention awards for key personnel from the acquired companies and are expected to be paid to employees through 2022. Management does not believe such costs are indicative of our ongoing operations as they are one-time awards that are specific to acquisitions and are incremental to our typical compensation costs incurred and we do not expect such costs to be reflective of future increases in base compensation expenses.
(f)
Represents non-recurring expenses primarily related to consulting and restructuring fees which management believes are not representative of our operating performance.
The following table presents a reconciliation of net loss to Adjusted Net Income for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Net loss
|
|
|
|
$
|
(6,036)
|
|
|
|
|
$
|
(19,018)
|
|
|
|
|
$
|
(25,228)
|
|
|
|
|
$
|
(34,461)
|
|
|
|
Amortization
|
|
|
|
|
11,888
|
|
|
|
|
|
11,875
|
|
|
|
|
|
47,491
|
|
|
|
|
|
31,488
|
|
|
|
Foreign currency (gains) losses
|
|
|
|
|
(48)
|
|
|
|
|
|
1,142
|
|
|
|
|
|
(172)
|
|
|
|
|
|
(1,101)
|
|
|
|
(Gain) loss on sale of business
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(979)
|
|
|
|
|
|
561
|
|
|
|
Equity-based compensation
|
|
|
|
|
1,060
|
|
|
|
|
|
1,362
|
|
|
|
|
|
4,284
|
|
|
|
|
|
3,673
|
|
|
|
Fair value adjustment to contingent value rights(a)
|
|
|
|
|
1,310
|
|
|
|
|
|
(300)
|
|
|
|
|
|
800
|
|
|
|
|
|
314
|
|
|
|
Acquisition and integration related costs(b)
|
|
|
|
|
14
|
|
|
|
|
|
3,478
|
|
|
|
|
|
5,341
|
|
|
|
|
|
20,179
|
|
|
|
Initial public offering costs(c)
|
|
|
|
|
1,711
|
|
|
|
|
|
—
|
|
|
|
|
|
542
|
|
|
|
|
|
—
|
|
|
|
Deferred revenue purchase accounting adjustment(d)
|
|
|
|
|
148
|
|
|
|
|
|
370
|
|
|
|
|
|
1,012
|
|
|
|
|
|
831
|
|
|
|
Deferred acquisition payments(e)
|
|
|
|
|
2,152
|
|
|
|
|
|
3,302
|
|
|
|
|
|
9,649
|
|
|
|
|
|
13,615
|
|
|
|
Other(f)
|
|
|
|
|
690
|
|
|
|
|
|
(62)
|
|
|
|
|
|
760
|
|
|
|
|
|
225
|
|
|
|
Income tax effect of adjustments(g)
|
|
|
|
|
(3,855)
|
|
|
|
|
|
(4,856)
|
|
|
|
|
|
(15,189)
|
|
|
|
|
|
(15,630)
|
|
|
|
Adjusted Net Income
|
|
|
|
$
|
9,034
|
|
|
|
|
$
|
(2,707)
|
|
|
|
|
$
|
28,311
|
|
|
|
|
$
|
19,694
|
|
|
(a)
Represents noncash losses recorded from fair value adjustments related to contingent value right liabilities. Contingent value right liabilities represent potential obligations to the prior sellers in conjunction with the Investor’s acquisition of the Company in August 2017 and are based on
estimates of expected cash payments to the prior sellers based on specified targets for the Investor’s return on its original capital investment.
(b)
Represents costs directly associated with acquisitions and acquisition-related integration activities. For fiscal year 2020 and the fiscal quarter ended March 27, 2020, the costs relate primarily to third-party consultant and information technology integration costs directly related to the Control4 acquisition. For fiscal year 2019, the costs primarily relate to third-party professional fees and integration costs related to the Control4 acquisition as well as similar costs incurred in connection with the MRI and CPD acquisitions. These costs also include certain restructuring costs (e.g., severance) and other third-party transaction advisory fees associated with the acquisitions.
(c)
Represents expenses related to professional fees in connection with preparation for the IPO.
(d)
Represents an adjustment related to the fair value of deferred revenue related to the Control4 acquisition.
(e)
Represents expenses incurred related to deferred payments to employees associated with our Control4 acquisition and other historical acquisitions. The deferred payments are cash retention awards for key personnel from the acquired companies and are expected to be paid to employees through 2022. Management does not believe such costs are indicative of our ongoing operations as they are one-time awards that are specific to acquisitions and are incremental to our typical compensation costs incurred and we do not expect such costs to be reflective of future increases in base compensation expenses.
(f)
Represents non-recurring expenses primarily related to consulting and restructuring fees which management believes are not representative of our operating performance.
(g)
Represents the tax impacts with respect to each adjustment noted above after taking into account the impact of permanent differences using the statutory tax rate related to the applicable federal and foreign jurisdictions and the blended state tax rate.
The following table presents a reconciliation of net sales to Contribution Margin for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
($ in thousands)
|
|
|
Net sales
|
|
|
|
$
|
220,468
|
|
|
|
|
$
|
172,611
|
|
|
|
|
$
|
814,113
|
|
|
|
|
$
|
590,842
|
|
|
|
Cost of sales, exclusive of depreciation and amortization(a)
|
|
|
|
|
128,876
|
|
|
|
|
|
100,390
|
|
|
|
|
|
474,778
|
|
|
|
|
|
354,821
|
|
|
|
Net sales less cost of sales, exclusive of depreciation and
amortization
|
|
|
|
$
|
91,592
|
|
|
|
|
$
|
72,221
|
|
|
|
|
$
|
339,335
|
|
|
|
|
$
|
236,021
|
|
|
|
Contribution Margin
|
|
|
|
|
41.5%
|
|
|
|
|
|
41.8%
|
|
|
|
|
|
41.7%
|
|
|
|
|
|
39.9%
|
|
|
(a)
Cost of sales, exclusive of depreciation and amortization for fiscal quarters ended March 26, 2021 and March 27, 2020 excludes depreciation and amortization of $13,712 and $14,483, respectively. Cost of sales, exclusive of depreciation and amortization for fiscal years 2020 and 2019 excludes depreciation and amortization of $57,972 and $39,657, respectively.
(2)
The as adjusted balance sheet data as of March 26, 2021 gives effect to (i) the sale by us of shares of our common stock in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us and (ii) the application of the net proceeds received by us from this offering, as described in “Use of Proceeds.”
The following table presents a reconciliation of net cash provided by (used in) operating activities to Free Cash Flow for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Net cash provided by (used in) operating activities
|
|
|
|
$
|
(23,867)
|
|
|
|
|
$
|
(13,675)
|
|
|
|
|
$
|
64,227
|
|
|
|
|
$
|
(4,099)
|
|
|
|
Purchases of property and equipment
|
|
|
|
|
(2,050)
|
|
|
|
|
|
(2,405)
|
|
|
|
|
|
(10,245)
|
|
|
|
|
|
(4,496)
|
|
|
|
Free Cash Flow
|
|
|
|
$
|
(25,917)
|
|
|
|
|
$
|
(16,080)
|
|
|
|
|
$
|
53,982
|
|
|
|
|
$
|
(8,595)
|
|
|
The as adjusted information discussed above is illustrative only and will depend on the actual initial public offering price and other terms of this offering determined at pricing. A $1.00 increase or decrease in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, would increase or decrease, as applicable, on an as adjusted basis, cash and cash equivalents, total assets and total stockholders’ equity by $ million, assuming the number of shares offered by us, as set forth on the front cover of this prospectus, remains the same and after deducting the assumed underwriting discounts and commissions and estimated offering expenses payable by us and the application of the net proceeds thereof as described in “Use of Proceeds.” An increase or decrease of 100,000 shares in the number of shares sold in this offering by us would increase or decrease, as applicable, on an as adjusted basis, cash and cash equivalents, total assets and total stockholders’ equity by $ million, assuming an initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us and the application of the net proceeds thereof as described in “Use of Proceeds.”
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider the following risk factors together with other information in this prospectus, including our consolidated financial statements and related notes included elsewhere in this prospectus, before deciding whether to invest in shares of our common stock. The occurrence of any of the events described below could harm our business, financial condition, results of operations and growth prospects. In such an event, the trading price of our common stock may decline and you may lose all or part of your investment.
Risks Related to Our Business and Industry
Our quarterly results of operations have fluctuated and may continue to fluctuate. As a result, we may fail to meet or exceed the expectations of investors or securities analysts, which could cause our stock price to decline.
Our quarterly net sales and results of operations have fluctuated and may continue to fluctuate as a result of a variety of factors, many of which are outside of our control. If our quarterly net sales or results of operations fall below the consensus expectations of investors or securities analysts in the future, the price of our common stock could decline, perhaps substantially.
Fluctuations in our results of operations may be due to a number of factors, including but not limited to:
•
Demand for and market acceptance of our solutions;
•
Our ability to continue to develop and maintain relationships with productive independent integrators and incentivize them to continue to market, sell, install and support our solutions;
•
The ability of our contract manufacturers to continue to manufacture high-quality products, and to supply sufficient products to meet our demands;
•
The timing and success of acquisitions, new product introductions or upgrades by us or by our competitors;
•
The strength of regional, national and global economies;
•
The strength of the U.S. dollar relative to other currencies and the impact this has on integrator and distributor margins and their ability to competitively sell our solutions to end consumers;
•
The impact of harsh seasonal weather, natural disasters or manmade problems such as war or terrorism;
•
Changes in our business and pricing policies, or those of our competitors;
•
Competition, including entry into the industry by new competitors and new offerings by existing competitors;
•
Macroeconomic conditions adversely affecting integrators’ businesses;
•
The impact of seasonality on our business and/or the business of integrators;
•
A systemic impairment or failure of one or more of our solutions that erodes integrator and/or end consumer confidence;
•
Changes in applicable tax and tariff rates;
•
Political or regulatory changes in the markets in which we operate;
•
The cost and availability of component parts used in our solutions;
•
The cost and availability of third-party products that we distribute but do not manufacture;
•
Aggressive business tactics by our competitors, including: selling at a discount, offering products on a bundled basis at no charge, extensive marketing efforts and providing financing incentives;
•
The amount and timing of expenditures, including those related to expanding our operations, increasing research and development, introducing new solutions or costs related to disputes and litigation; and
•
Temporary discounts or permanent changes in the price or payment terms for our solutions.
Due to the foregoing factors and the other risks discussed herein, you should not rely on quarter-to-quarter comparisons of our results of operations as an indication of our future performance, nor should you consider any net sales growth or results of operations in any quarter to be indicative of our future performance.
If we are unable to manage our business growth and diverse and complex operations, our reputation in the market and our ability to generate net sales from new or existing integrators and end consumers may be harmed.
Because our operations are geographically diverse and complex, our personnel resources and infrastructure could become strained and our reputation in the market and our ability to successfully implement our business plan may be harmed. The growth in the size, complexity and diverse nature of our business and the expansion of our product lines and customer base, including through acquisitions, have placed increased demands on our management and operations, and further growth, if any, may place additional strains on our resources in the future. Our ability to effectively compete and to manage our plan to continue to expand our headcount and operations may depend on, among other things:
•
Maintaining institutional knowledge by retaining and expanding the core competencies critical to our operations in our senior management and key personnel;
•
Increasing the productivity of our existing employees and attracting new talent;
•
Maintaining existing productive relationships and developing new productive relationships with independent contract manufacturers, integrators, and third-party products suppliers;
•
Improving our operational, financial and management controls; and
•
Improving our information reporting systems and procedures.
If we do not manage the size, complexity and diverse nature of our business effectively, we could experience delayed product releases and longer response times by our integrators in assisting our end consumers in implementing our solutions, and could lack adequate resources to support our end consumers on an ongoing basis, any of which could harm our reputation in the market, our ability to successfully implement our business plan and our ability to generate net sales from new or existing end consumers.
The markets in which we participate are highly competitive and many companies, including large technology companies, retailers, electronics distributors, broadband and security service providers, as well as other managed service providers, are actively targeting our markets. Our failure to differentiate ourselves and compete successfully against these companies would make it difficult for us to add and retain end consumers, and our sales and profitability could be adversely affected.
The markets for our solutions are highly competitive and continually evolving. A number of technology companies, including industry leaders such as Amazon, Apple, Google, Honeywell, Lutron and Samsung, offer devices with capabilities similar to many of our products and services and are engaged in ongoing development efforts to address even broader segments of various markets, including our core professionally installed electronics markets. These large technology companies already have broad customer awareness and sell a variety of devices for home and business, and end consumers may choose their offerings instead of ours, even if we offer differentiating features such as broader interoperability or remote management and control services, as well as superior products and services. Additionally, these and other companies may further expand into our industry by developing additional solutions or by acquiring other providers. Similarly, many managed service providers, such as cable TV, telephone and security companies, are offering products and services that may compete directly with our solutions, including remote management, automation, and control features. For example, Vivint and ADT have made significant efforts to market smart home services that incorporate these companies’ traditional security offerings. These managed service providers have the advantage of leveraging their existing customer base, network of installation and support technicians and name recognition to gain traction in our core markets. In addition, end consumers may prefer the monthly service fee with little to no upfront cost offered by some of these managed service providers over a larger upfront cost with little to no monthly service fees.
We expect competition from these large technology companies, retailers, managed service providers and other companies to increase in the future. This increased competition could result in pricing pressure, reduced sales, lower margins or the failure of our solutions to achieve or maintain broad market acceptance. To remain competitive and to maintain our position as a leading provider of professionally installed electronics solutions for connected homes and businesses, we will need to invest continuously in product development, marketing, integrator service and support, and product delivery infrastructure. We may not have sufficient resources to continue to make the investments in all of the areas needed to maintain our competitive position. In addition, many of our competitors have longer operating histories, greater name recognition, larger customer bases and significantly greater financial, technical, sales, marketing and other resources than us, which may provide them with an advantage in developing, marketing or servicing new solutions. Increased competition could reduce our market share, net sales and operating margins, increase our operating costs, harm our competitive position or otherwise harm our business and results of operations.
In addition, we believe it is likely that some of our existing competitors will consolidate or be acquired. Some of our competitors may enter into new alliances with each other or may establish or strengthen cooperative relationships with systems integrators, distributors, third-party consulting firms or other parties. Additional consolidations, acquisitions, alliances or cooperative relationships, or new product introductions by companies in our industry, could lead to pricing pressure, reduce our market share or result in a competitor with greater financial, technical, marketing, service and other resources than ours, all of which may have a material adverse effect on our business, results of operations and financial condition.
If we are unable to develop new solutions, sell our solutions into new markets, or further penetrate our existing markets, our net sales may not grow as expected or they may decline.
Our ability to increase sales will depend in large part on our ability to enhance and improve our solutions, to introduce new solutions in a timely manner, to sell into new markets and to further penetrate our existing markets. The success of any enhancement or new product or solution depends on several factors, including the timely completion, introduction and market acceptance of enhanced or new solutions, the ability to attract, retain and effectively train product development, sales and marketing personnel (among others), the ability to retain and expand our offered third-party solutions, the ability to develop relationships with independent integrators and the effectiveness of our marketing programs. Any new product or solution we develop, distribute or acquire may not be introduced in a timely or cost-effective manner, and may not achieve the broad market acceptance necessary to generate significant net sales. Any new markets into which we attempt to sell our solutions, including new vertical markets, new local distribution locations, and new countries or regions, may not be receptive. Our ability to further penetrate our existing markets depends on the quality of our solutions and our ability to design our solutions to meet customer demand. Moreover, we are frequently required to enhance and update our solutions as a result of changing standards and technological developments, which makes it difficult to recover the cost of development and forces us to continually qualify new solutions with our end consumers and may render our solutions obsolete. In addition, we expect to derive an increasing portion of our net sales in the future from subscription-based services. This subscription model may give rise to risks that could harm our business. For example, we may be unable to predict subscription renewal or upgrade rates and the impact these rates may have on our future net sales and operating results. If we are unable to successfully develop, distribute, or acquire new solutions, enhance our existing solutions to meet customer requirements in a timely manner, sell solutions into new markets, or sell our solutions to additional end consumers in our existing markets, our net sales may not grow as expected or they may decline.
End consumers may choose to adopt products that provide discrete functionality or DIY solutions rather than adopt our professionally-installed solutions. If we are unable to increase market acceptance of the benefits of our professionally-installed solutions, our net sales may not continue to grow, or they may decline.
Many vendors have emerged, and may continue to emerge, to provide point products with advanced functionality for use in home and commercial applications, such as a thermostats, lighting, power distribution units, doorbell or surveillance systems that can be controlled by an application on a smartphone or control panel. We expect more and more consumer electronics and appliance products to be network-aware and connected — each very likely to have its own smart device (phone or tablet) application. In addition to point solutions, other such disruptive DIY solutions include networking, remote monitoring, and
audio and audiovisual distribution products that do not require professional assistance to deploy. End consumers may be attracted to the relatively low costs and ease of installation of these DIY products and the ability to expand solutions over time with minimal upfront costs, despite the disadvantages of this approach. While we have built our solutions to be flexible and in many cases support third-party DIY products, the adoption of these products may reduce the revenue we receive for each installation. It is therefore important that we provide attractive top-quality solutions in many areas, such as networking, lighting, audio, video, thermostats, surveillance, security, power, and remote monitoring and management, and establish broad market awareness and acceptance of these solutions as well as the advantages of integrating them in a unified solution supported by a professional integrator. If a significant number of end consumers in our target markets choose to rely solely on the functionality included in DIY solutions rather than acquiring our unified solutions, then our business, financial condition and results of operations may be harmed, and we may not be able to achieve sustained growth or our business may decline.
We have relatively limited visibility regarding the end consumers that ultimately purchase our solutions, and we often rely on information from third-party distributors and integrators to help us manage our business. If we are unable to obtain timely or accurate information, our ability to quickly react to market changes and effectively manage our business may be harmed.
We sell our solutions through independent businesses, including integrators and distributors. These integrators and distributors work with end consumers to design, install, update and maintain their systems. While we are able to track orders from integrators and have access to certain information about the configurations of our systems they install that we receive through our platform such as OvrC and Control4, we also rely on these integrators to provide us with information about customer behavior, product and system feedback, customer demographics, buying patterns and information about our competitors. We use this channel sell through data, along with other metrics, to assess customer demand for our solutions, develop new solutions, adjust pricing and make other strategic business decisions. Our channel sell through data is subject to limitations due to collection methods and the third-party nature of the data and thus may not be complete or accurate. In addition, from time to time we collect information directly from end consumers through surveys that we conduct and other methods, but the end consumers who choose to participate self-select and vary by geographic region and from period to period, which may impact the usefulness of the results. Customer information is further limited in certain of our business models where a large portion of solutions we sell may not be installed with our platforms and thus further limit our visibility into end consumer behavior, including local distribution, and third-party products sales. If we do not receive customer information on a timely or accurate basis, or if we do not properly interpret this information, our ability to quickly react to market changes and effectively manage our business may be harmed.
In addition, because the production of certain of our products requires long lead times, we enter into agreements for the manufacture and purchase of certain of our products well in advance of the time in which those products will be sold. These contracts are based on our best estimates of our near-term product needs. If we underestimate customer demand, we may forego revenue opportunities, lose market share and damage our relationships. Conversely, if we overestimate customer demand, we may purchase more inventory than we are able to sell at any given time, or at all. If we fail to accurately estimate demand for our solutions, we could have excess or obsolete inventory, resulting in a decline in the value of our inventory, which would increase our costs of net sales and reduce our liquidity. Our failure to accurately manage inventory relative to demand would adversely affect our results of operations.
Our strategy includes pursuing acquisitions and our potential inability to identify good opportunities and to successfully integrate newly-acquired technologies, assets, businesses, or personnel may harm our financial results.
We believe part of our growth will be driven by acquisitions of other companies or their technologies, assets and businesses, but we may not be able to acquire the targeted technologies, assets and businesses we identify as desirable for a price we consider to be reasonable or at all. For example, on February 26, 2021, we entered into an asset purchase agreement with HCA Distributing, LLC (“HCA Distributing”), a local distribution store. Under the asset purchase agreement, we agreed to pay a purchase price of $1,350,000 for substantially all of HCA Distributing's assets. Other recent acquisitions include Control4 and Custom
Plus Distributing in 2019, and NEEO, MRI Premium Distributing Services, and Volutone in 2018. These acquisitions and any future acquisitions we evaluate and complete will give rise to risks, including:
•
Incurring higher than anticipated capital expenditures and operating expenses;
•
Failing to assimilate the operations and personnel, or failing to retain the key personnel of the acquired company or business;
•
Failing to integrate the acquired technologies, or incurring significant expense to integrate acquired technologies into our solutions;
•
Disrupting our ongoing business;
•
Dissipating or diverting our management resources;
•
Failing to maintain uniform standards, controls and policies;
•
Incurring significant accounting charges;
•
Impairing relationships with employees, integrators, distributors, partners or end consumers;
•
Finding that the acquired technology, assets or business does not further our business strategy, that we overpaid for the technology, assets or business, or that we may be required to write off acquired assets or investments partially or entirely;
•
Failing to realize the expected synergies of the transaction;
•
Being exposed to unforeseen liabilities and contingencies that were not identified and mitigated during diligence conducted prior to acquiring the company, including but not limited to the risk that the products or services of the acquired company violate third-party intellectual property rights or regulatory standards or contain other vulnerabilities;
•
Requiring us to raise debt or equity capital to finance the acquisition, which may not be available on advantageous terms;
•
To the extent that we pursue acquisitions in non-U.S. markets, becoming subject to new regulatory regimes in which we have limited experience; and
•
Being unable to generate sufficient net sales from acquisitions to offset the associated acquisition costs.
Fully integrating acquired technology, asset, business, or personnel into our operations may take a significant amount of time and resources.
Acquisitions could include significant goodwill and intangible assets. The amortization of such intangible assets would reduce our profitability and there may be future impairment charges that would reduce our stated earnings. We may incur significant costs in our efforts to engage in strategic transactions and these expenditures may not result in successful acquisitions.
In addition, we may pursue business opportunities that diverge from our current business model, including expanding our solutions into lines of business with which we have minimal experience, investing in new and unproven technologies, and expanding our existing sales channels or adding new sales channels. We can offer no assurance that any such new business opportunities will prove to be successful. Among other negative effects, our pursuit of such business opportunities could reduce operating margins and require more working capital, or may have a material adverse effect on our business, results of operations and financial condition. Acquisitions also could impact our financial position and capital needs, or could cause fluctuations in our quarterly and annual results of operations. To the extent we do not successfully avoid or overcome the risks or problems related to any such acquisitions, our results of operations and financial condition could be harmed.
We have entered into several strategic arrangements and intend to pursue additional strategic opportunities in the future. If the intended benefits from our strategic relationships are not realized, our results of operations may be harmed.
We are working to develop relationships with strategic partners in order to increase awareness of our solutions and to attempt to reach markets that we cannot currently address in a cost effective manner. If
these relationships do not develop in the manner we intend, our future growth could be impacted. Any loss of a major partner, distribution channel or other channel disruption could harm our results of operations and make us more dependent on alternate channels, damage our reputation, increase pricing and promotional pressures from other partners and distribution channels, increase our marketing costs, or harm buying and inventory patterns, payment terms or other contractual terms.
Growth of our business may depend on market awareness and a strong brand, and any failure to develop, broaden, protect and enhance market awareness of our solutions could hurt our ability to retain or attract integrators and/or end consumers.
Because of the competitive nature of the professionally installed electronics market, and other markets where we operate, we believe that building and maintaining market awareness, brand recognition and goodwill may be material to our success. Doing so will depend largely on our ability to continue to provide high-quality solutions, and we may not be able to do so effectively. We may choose to engage in broader marketing campaigns to further promote our brand, but this effort may not be successful. Our efforts in developing our brand may be affected by the marketing efforts of our competitors, negative publicity and social media commentary, and by our reliance on our independent integrators, distributors and strategic partners to install our solutions and promote our brand effectively. In addition, these marketing efforts may not yield the results we anticipate and may prove more expensive than we currently anticipate, and our net sales may not increase sufficiently to offset these higher expenses. If we are unable to maintain and increase positive awareness of our brand in a cost-effective manner, it may have a material adverse effect on our business, results of operations and financial condition.
We operate in an emerging and evolving market, which may develop more slowly or differently than we expect. If our core market does not grow as we expect, or if we cannot expand our solutions to meet the demands of this market, our net sales may suffer, and we may incur operating losses.
The market for professionally installed electronics is evolving, and it is uncertain whether our solutions will achieve and sustain high levels of demand and market acceptance. Some integrators and/or end consumers may be reluctant or unwilling to use our solutions for a number of reasons, including satisfaction with other solutions, concerns about cost, and lack of awareness of our solutions. Unified solutions such as ours have traditionally been luxury purchases for the high end of the residential market, and are also popular in commercial markets, and while our solutions target luxury residential and commercial markets, we also have solutions that target middle- and entry-level homeowners and those who live in or operate multi dwelling units. Our ability to expand the sales of our solutions to a broader customer base depends on several factors, including market awareness of our solutions, the timely completion, introduction and market acceptance of our solutions, our ability to discern and respond effectively to trends in end consumer preferences and changing technology, the ability to attract, retain and effectively train sales and marketing personnel, the effectiveness of our marketing programs, the ability to develop effective relationships with independent integrators and other strategic partners, the cost and functionality of our solutions and the success of our competitors. If we are unsuccessful in developing and marketing our home automation solutions to integrators and/or end consumers, or if these integrators and/or end consumers do not perceive or value the benefits of our solutions, the market for our solutions might not continue to develop or might develop more slowly than we expect, either of which would harm our net sales and growth prospects.
Downturns in general economic and market conditions, including but not limited to downturns in housing and commercial real estate markets and reductions in consumer spending, may reduce demand for our solutions, which could harm our net sales, results of operations, financial condition and cash flows.
Our net sales, results of operations and cash flows depend on the overall demand for our solutions and the willingness of our sales channel to invest in marketing our solutions, both of which can be significantly reduced in economic environments characterized by market and interest rate volatility, decreased consumer confidence, high unemployment, declines in residential remodeling and housing starts, decreased demand for commercial real estate and associated renovations, fluctuating exchange rates, and diminished growth expectations in the U.S. economy and abroad. During periods of weak or unstable economic and market conditions, providers of products and services that represent discretionary purchases, such as our home automation and audiovisual solutions, are typically disproportionately affected. In addition, during these
periods, the number of independent integrators may decline, which may have a corresponding impact on our growth prospects. Moreover, many of our integrators are small and mid-size businesses and thus more likely to be negatively impacted by downturns in general economic and market conditions than larger businesses. For example, during challenging economic times, end consumers and integrators may face issues in gaining timely access to sufficient credit, which could impair their ability to make timely payments. There is also an increased risk during these periods that an increased percentage of our integrators will file for bankruptcy protection or otherwise become insolvent, which may harm our reputation, net sales, profitability and results of operations. We cannot predict the timing, strength, duration or impact on our business of any economic slowdown, instability or recovery, generally or within any particular geography or industry. For example, as domestic and international end consumers are released from quarantines and other restrictions related to COVID-19, the demand for our solutions may decrease despite positive macroeconomic trends. Any downturns in the general economic conditions of the geographies and industries in which we operate, or any other factors negatively impacting housing markets or consumer spending, may have a material adverse effect on our business, results of operations and financial condition.
We have credit exposure to our integrators.
Any adverse trends in our customers’ businesses could cause us to suffer credit losses. As is customary in our industry, we extend credit to our customers. A portion of our customers are small contractors with inconsistent cash flow. As such, they rely on us to provide their businesses with credit and to carry specified inventory to support their operations. We may be unable to collect on receivables if our customers experience decreases in demand for their products and services, do not manage their businesses adequately, or otherwise become less able to pay due to adverse economic conditions or refinancing events. While we evaluate our customers’ qualifications for credit and monitor our extensions of credit, these efforts cannot prevent all credit losses, and increased credit losses would negatively impact our performance and financial position. In addition, for financial reporting purposes, we establish reserves based on our historical experience of credit losses. To the extent that our credit losses exceed those reserves, our financial performance will be negatively impacted. If there is deterioration in the collectability of our receivables, or we fail to take other actions to adequately mitigate this credit risk, our earnings and cash flows could deteriorate. In addition, if we are unable or unwilling to extend credit to our customers, we may experience loss of certain contracts or business.
Extending credit to international customers involves additional risks. It is often more difficult to evaluate credit of a customer or obtain credit protections in our international operations. Also, credit cycles and collection periods are typically longer in our international operations. We are also subject to credit risk associated with customer concentration. If one or more of our largest international customers were to become bankrupt or insolvent, or otherwise were unable to pay for our solutions, we may incur significant write-offs of accounts that may have a material adverse effect on our business, financial condition, results of operations and cash flows. As a result of these factors and other challenges in extending credit to international customers, we generally face greater credit risk from sales internationally compared to domestic sales.
Our failure to raise additional capital or generate cash flows necessary to expand our operations, invest in new technologies and otherwise respond to business opportunities or unforeseen circumstances in the future could reduce our ability to compete successfully and harm our results of operations.
While we believe that our existing cash and cash equivalents will be sufficient to meet our anticipated cash requirements for at least the next 12 months, at some point we may need to raise additional funds, and we may not be able to obtain additional debt or equity financing on favorable terms, if at all. If we raise additional equity financing, our security holders may experience significant dilution of their ownership interests and the value of shares of our common stock could decline. If we engage in debt financing, we may be required to accept terms that restrict our ability to incur additional indebtedness, force us to maintain specified liquidity or other ratios or restrict our ability to pay dividends or make acquisitions. If we need additional capital and cannot raise it on acceptable terms, we may not be able to, among other things:
•
develop and enhance our solutions;
•
continue to expand our research and development, sales and marketing organizations;
•
hire, train and retain employees;
•
respond to competitive pressures or unanticipated working capital requirements; or
•
pursue acquisition opportunities.
Our inability to do any of the foregoing could reduce our ability to compete successfully and harm our results of operations.
Risks Related to Our Products
If we are unable to adapt to technological change and implement technological and aesthetic enhancements to our solutions, this could impair our ability to remain competitive.
The market for professionally installed electronics is characterized by rapid technological change, frequent introductions of new solutions and evolving industry standards. However, product development often requires significant lead-time and upfront investment and our ability to attract new consumers and increase net sales from existing consumers will depend in significant part on our ability to accurately anticipate changes in industry standards and to continue to appropriately fund development or acquisition efforts to enhance existing solutions or introduce new solutions in a timely basis to keep pace with technological developments. This is true of all our solutions but is particularly important with respect to our user interface and other direct customer interface products including touch screens, remotes, keypads, and televisions. Similarly, if any of our competitors implement new technologies us, those competitors may be able to provide more effective or lower-cost products than ours, which could impact sales and decrease our market share. Any delay or failure in the introduction of new or enhanced solutions may have a material adverse effect on our business, results of operations and financial condition.
Product quality issues and a higher-than-expected number of warranty claims or returns could harm our business and operating results.
The products that we sell could contain defects in design or manufacture. Defects could also occur in the products or components that are supplied to us. There can be no assurance we will be able to detect and remedy all defects in the hardware and software we sell, which could result in product recalls, product redesign efforts, loss of net sales, reputational damage and significant warranty and other remediation expenses. Similar to other electronics, our products have a risk of overheating and fire in the course of usage or upon malfunction. We sell power distribution products that may allow damage to connected devices upon malfunction. We sell a range of racks, mounts, brackets, and other products that support large amounts of weight, over 2,000 pounds in some instances, which may fail to support weight upon malfunction. Any of the aforementioned defects could result in harm to property or in personal injury, which could subject us to liability. If we determine that a product does not meet product quality standards or may contain a defect, the launch of such product could be delayed until we remedy the quality issue or defect. The costs and loss of net sales associated with any protracted delay necessary to remedy a quality issue or defect in a new product could be substantial.
We provide warranties on our products ranging from one-year to lifetime. In certain countries we may lengthen product warranties due to various local laws and regulations. The occurrence of any material defects in our products could expose us to liability for damages and warranty claims in excess of our current reserves, and we could incur significant costs to correct any defects, warranty claims or other problems. In addition, if any of our product designs are defective or are alleged to be defective, we may be required to participate in a recall campaign. In part due to the terms of our warranty policy, any failure rate of our products that exceeds our expectations may result in unanticipated losses. Any negative publicity related to the perceived quality of our products could affect our brand image and decrease customer confidence and demand, which could adversely affect our operating results and financial condition. Further, accidental damage coverage and extended warranties are regulated in the United States at the state level and are treated differently within each state. Additionally, outside the United States, regulations for extended warranties and accidental damage vary from country to country. Changes in interpretation of the regulations concerning extended warranties and accidental damage coverage on a federal, state, local or international level may cause us to incur costs or have additional regulatory requirements to meet in the future in order to continue
to offer our support services. Our failure to comply with past, present and future similar laws could result in reduced sales of our products, reputational damage, penalties and other sanctions, which may have a material adverse effect on our business, results of operations and financial condition.
In addition to failures due to product defects, because our solutions are installed by independent integrators, if integrators do not install or maintain our solutions correctly or if the underlying network or infrastructure in a home or business is not sufficiently robust, our solutions may not function properly. Our end consumers generally judge our performance through their interactions with our integrators and distributors, as well as their day-to-day interactions with the product and the mobile application. If the improper installation or maintenance of our solutions leads to service failures of a product or solution, we could experience harm to our branded reputation, claims by our end consumers, integrators, strategic partners or developers and we may incur increased expense to remedy the problem, any of which may have a material adverse effect on our business, results of operations and financial condition.
The performance of and demand for our solutions are impacted in part by factors not entirely within our control including compatibility and ease of integration with third-party products and services, as well as enabling technology, connectivity, software and intellectual property that we do not own or control.
Our solutions are designed to interoperate with a wide range of other third-party products, including products in the areas of audio, video, lighting, temperature, power, networking, and security, and we benefit from our relationships with partners that allow our platforms, including OvrC and Control4, to integrate with, and provide features such as control and remote management to, over 16,000 third-party devices and services. If we do not support the continued integration of our solutions with third-party products and applications, including new and additional products, demand for our solutions could decline and we could lose sales. In addition, companies that provide certain point solutions have eliminated or restricted, and may in the future eliminate or restrict, our ability to integrate with, control, remotely manage, and otherwise be compatible with these products. As a result, we may not be successful in making our solutions compatible with these third-party products and applications or lose functionality in existing systems to the extent that they depend on the ability to integrate with third-party products, which could reduce demand for our solutions. In addition, if prospective consumers require customized features or functions that we do not offer, then the market for our solutions may be harmed.
Our solutions are deployed in many different locations and user environments. The ability of our solutions to operate effectively can be negatively impacted by many different elements unrelated to our solutions including the performance of enabling technology, integration services, intellectual property that we do not own or control, and the performance of integrators. For example, a user’s experience may suffer from an incorrectly deployed network or other key infrastructure such as cabling or wires. Such perceptions, even if incorrect, could harm our business and reputation.
The prices and costs of the products we manufacture or purchase may be subject to large and significant price fluctuations. We might not be able to pass cost increases through to our end consumers, and we may experience losses in a rising price environment. In addition, we might have to lower our prices in a declining price environment, which could also lead to losses.
We purchase and sell a wide variety of products, the price and availability of which may fluctuate, and which may be subject to large and significant price increases. Our business is exposed to these fluctuations, as well as to fluctuations in our costs for transportation and distribution. Changes in prices for the products that we purchase affect our net sales and cost of goods sold, as well as our working capital requirements, levels of debt and financing costs. We might not always be able to reflect cost increases in our own pricing. Any inability to pass cost increases on to end consumers may adversely affect our business, financial condition and results of operations. In addition, if market prices for the products we sell decline, we may realize reduced profitability levels from selling such products and lower revenues from sales of existing inventory stocks of such products.
Risks Related to Our Manufacturing and Supply Chain
We currently rely on contract manufacturers to manufacture our products and on component vendors to supply parts used in our products. We also distribute products manufactured by other companies. Any disruption in our supply chain, or our failure to successfully manage our relationships with our suppliers or logistics partners could harm our business.
Our reliance on contract manufacturers to produce many of our products reduces our control over the assembly process, exposing us to risks, including reduced control over quality assurance, production costs and product supply. These risks are heightened because a significant portion of our net sales comes from proprietary products. We rely on a limited number of contract manufacturers to manufacture most of our products and components, and in many cases one of these manufacturers is our only source for a particular product or product family. We also do business with a number of component vendors, and the parts they supply may not perform as expected. We also distribute products supplied by other companies. Most of our contract manufacturers and component vendors, and some of our distributed product suppliers, are located outside of the United States, and all of them may be subject to political, economic, social, regulatory and legal uncertainties that may harm our relationships with them. If we fail to manage our relationships with our suppliers or logistics partners effectively, or if our suppliers or logistics partners experience delays, disruptions, capacity constraints, shortage of raw materials or components, or quality control problems in their operations, our ability to ship products may be impaired and our competitive position and reputation could be harmed. In addition, any adverse change in our suppliers or logistics partners’ financial or business condition could disrupt our ability to supply quality products to our integrators and distributors. While we aim to maintain redundancy throughout our supply chain, in some cases we rely upon one or a few partners to provide critical services. Such reliance increases our risks of various supply chain disruptions. For example, the majority of our United States shipping is supported by a single logistics partner. If we are required to change or replace suppliers or logistics partners we may lose net sales, incur increased costs or damage our relationships, or we might be unable to find a new contract manufacturer, component vendor, or supplier of similar distributed products, on acceptable terms, or at all. In addition, qualifying a new supplier or logistics provider could be an expensive and lengthy process. If we experience increased demand that our suppliers are unable to fulfill, or if they are unable to provide us with adequate supplies of high-quality products for any reason, we could experience a delay in our order fulfillment, and it may have a material adverse effect on our business, results of operations and financial condition.
Furthermore, we expect our suppliers, service providers and other business partners to comply with all legal requirements relating to health and safety, labor relations, the environment, supply chain ethics and transparency. If any of our suppliers engages in or is perceived to have engaged in ethics violations, we may be unable to continue our relationship with that supplier. If we are required to find alternative sources of supply, qualification of alternative suppliers and the establishment of reliable supplies could result in delays and a possible loss of sales, which may have a material adverse effect on our business, results of operations and financial condition.
Even when we effectively manage our suppliers and logistics partners, forces outside of our control may still disrupt our supply chain. Such factors may include catastrophic events, such as the COVID-19 pandemic or recent semiconductor and chipset factory fires, raw material price volatility, and geopolitical conflict. For example, global semiconductor shortages may disrupt our ability to fulfill demand for our products. Additionally, recent copper and steel price increases may impact the availability and cost of products containing a high percentage of metal content such as bulk wire, cables, racks, and mounts.
Risks Related to Our Distribution Channels
We rely on our independent integrators to sell our solutions, and if our integrators fail to perform and grow their businesses, our ability to sell and distribute our solutions will be limited, and our results of operations may be harmed.
Most of our net sales are generated through the sales of our solutions by our authorized integrators and other types of integrators, as well as distributors in certain markets. As of December 25, 2020, we had over 16,000 active integrators authorized to sell our solutions. Our integrators are independent businesses that
voluntarily sell both our solutions and the products of other companies to end consumers. We provide our integrators with specific training programs to assist them in selling, installing and servicing our solutions. We have observed, and expect to continue to observe, high volatility in the monthly, quarterly and annual sales performance of individual integrators. Although we can make estimated forecasts of cumulative sales of large numbers of integrators, we cannot assure their accuracy collectively or individually. Accordingly, if our actual sales fall short of our expectations, we may not be able to reduce or slow our spending quickly enough to protect margins. We expect that our net sales, results of operations and cash flows may fluctuate significantly on a quarterly basis. Therefore, period-to-period comparisons of our net sales, results of operations and cash flows should not be relied upon as an indication of future performance.
Our independent integrators may be unsuccessful in marketing, selling, installing and supporting our solutions. If we are unable to provide high-quality products in a timely manner at competitive prices and to develop and maintain effective sales incentive programs for our integrators, we may not be able to incentivize them to sell our solutions. Our integrators may also market, sell and support products and services that are competitive with ours, and may devote more resources to the marketing, sales, and support of such competitive products. Our integrators may have incentives to promote our competitors’ products to the detriment of our own or may cease selling our solutions altogether. Our agreements with our integrators may generally be terminated without penalty for any reason by either party with advance notice. We cannot assure that we will retain agreements with these integrators, or that we will be able to secure additional or replacement integrators.
In addition, while we take certain steps to protect ourselves from liability for the actions of independent integrators, such as including contractual provisions limiting our liability with both end consumers and integrators, end consumers may seek recovery from us for damages caused by integrators in connection with product installations or servicing, or the failure of products to perform properly due to incorrect installations by integrators. In the event of litigation with respect to these matters, we cannot guarantee that our contractual protections will be enforced or that integrators will have the financial wherewithal or maintain insurance to meet their contractual obligations. Furthermore, integrators may initiate claims against us related to any failure or perceived failure to operate our business in accordance with our contracts and the law. Integrators may engage in wrongdoing, including unethical or illegal acts and may use our name and our brand in ways we do not authorize. Any such improper integrator behavior may harm our reputation or expose us to liability for their actions. If our sales partners engage in marketing practices that are not in compliance with local laws and regulations, we may be in breach of such laws and regulations, which may result in regulatory proceedings and potential penalties that could have a material adverse effect on our business. In addition, unauthorized activities in connection with sales efforts by our sales partners, including calling end consumers in violation of the Telephone Consumer Protection Act and fraudulent misrepresentations, could subject us to governmental investigations and class action lawsuits for, among others, false advertising and deceptive trade practice damage claims, against which we will be required to defend. Such defense efforts will be costly and time-consuming, and there can be no assurance that such defense efforts will be successful, all of which could have negatively impact our business, results of operations and financial condition.
Moreover, in order to continue our growth and expand our business, it is important that we continue to attract and add new integrators and ensure that most of our existing relationships remain productive. We must also work to expand our network of integrators to ensure that we have sufficient geographic coverage and technical expertise to address new markets and technologies. If we are unable to attract, train, and retrain integrators, if we saturate the available integrator pool, or if market or other forces cause the available pool of integrators to decline, it may be increasingly difficult to grow our business. It is important that we enhance our integrator footprint by broadening the expertise of our integrators, providing tools and training that enable our integrators to be more effective, and expanding our line of solutions that our integrators offer. If we are unable to expand our network of independent integrators, or maintain the relationships with our existing integrators, our business could be harmed.
Finally, we are dependent on a finite number of integrators, many of which are small businesses, to meet demand for our solutions. If our and their operations, infrastructure and business processes fail to keep pace with our business and customer requirements, end consumers may experience disruptions in service or support or we may not scale the business efficiently, which could adversely affect our reputation and our
net sales. There is no guarantee that we and our integrators will be able to continue to develop and expand our infrastructure and business processes at the pace necessary to scale the business, and our failure to do so may have an adverse effect on our business and brand identity.
Because we distribute a portion of our solutions through e-commerce platforms, our operations may be materially adversely affected by technological problems and failure to improve our platforms to meet customer needs.
A significant portion of our sales are transacted through e-commerce platforms including our website. Our integrators rely upon these sales platforms to conduct vital business activities including purchasing products, obtaining technical support and training, and learning about new products and services. Any failure of these platforms to operate reliably and meet customer needs may impact our business performance. For example, technological failures, both caused by us and those outside of our control, may result in platform downtime, and result in lost sales and customer loyalty. Additionally, if we do not continue to improve our e-commerce platforms to meet customer needs, we may also lose sales and customer loyalty. As we continue to improve customer experience and engage in strategic acquisitions, we may consolidate e-commerce platforms. Such platform consolidation attempts present risks for both technological disruptions and failure to meet customer needs, which may adversely affect our operations.
Because we distribute a portion of our solutions through highly dispersed brick-and-mortar locations across the United States, our operations may be materially adversely affected by inconsistent practices, and the operating results of individual branches may vary.
We operate a portion of our product distribution business through a network of highly dispersed locations throughout the United States, supported by leadership located in central offices, with local branch management retaining responsibility for day-to-day operations and adherence to applicable local laws. Our operating structure could make it difficult for us to coordinate procedures across our operations in a timely manner or at all. We may have difficulty attracting and retaining qualified local personnel. In addition, our branches may require significant oversight and coordination from headquarters to support their growth. Inconsistent implementation of corporate strategy and policies at the local level could materially and adversely affect our overall profitability, prospects, business, results of operations, financial condition and cash flows. In addition, the operating results of an individual branch may differ from that of another branch for a variety of reasons, including market size, management practices, competitive landscape, regulatory requirements and local economic conditions. As a result, certain of our branches may experience higher or lower levels of growth than other branches.
Risks Related to Laws and Regulations
Failure to comply with laws and regulations could harm our business.
We conduct our business in the United States and in various other countries. We are subject to regulation by various federal, state, local and foreign governmental agencies, including, but not limited to, agencies and regulatory bodies or authorities responsible for monitoring and enforcing product safety and consumer protection laws, data privacy and security laws and regulations, employment and labor laws, workplace safety laws and regulations, environmental laws and regulations, antitrust laws, federal securities laws and tax laws and regulations.
Our global operations require us to import from and export to several countries, which increases the number of jurisdictions’ laws with which we must comply. We are also subject to anti-money laundering laws such as the USA PATRIOT Act and may be subject to similar laws in other jurisdictions. Our platforms and solutions are subject to various export control and import laws and regulations, including the U.S. Export Administration Regulations, U.S. Customs regulations, and various economic and trade sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control, in part because our software contains encryption technologies. Exports of our platforms and solutions must be made in compliance with these laws and regulations. We may also be subject to import/export laws and regulations in other jurisdictions in which we conduct business. If we fail to comply with these laws and regulations, we and certain of our employees could be subject to substantial civil or criminal penalties, including the
possible loss of export or import privileges; fines, which may be imposed on us and responsible employees or managers; and, in extreme cases, the incarceration of responsible employees or managers. As a result, our access to technologies needed to improve our platforms and solutions may be impaired and the demand for our platforms and solutions outside of the United States may be limited. Any penalties, costs and restrictions on export or import privileges could harm our results of operations. We maintain policies and procedures reasonably designed to ensure compliance with applicable trade accounting requirements, laws and restrictions, including prohibiting the export, re-export or transfer of technology to companies on the Entity List maintained by the U.S. Department of Commerce’s Bureau of Industry and Security, as well as prohibiting the sale of our products in certain countries. However, due to the size of our global operations, we cannot ensure that our policies and procedures, including related safeguards, will effectively prevent violations, including the unauthorized diversion of products to countries or persons that are the target of OFAC sanctions, the export, re-export or transfer of technology to companies on the Entity List, failure to comply with accounting rules related to import and export of products, appropriate import product classifications, or other trade accounting requirements, laws, and restrictions.
Moreover, if our service provider partners fail to obtain appropriate import, export or re-export licenses or authorizations, we may also be adversely affected through reputational harm and penalties. Obtaining the necessary authorizations, including any required license, for a particular sale may be time-consuming, is not guaranteed and may result in the delay or loss of sales opportunities. In addition, changes in our platforms or solutions or changes in applicable export or import laws and regulations may create delays in the introduction and sale of our platforms and solutions in international markets, prevent our service provider partners with international operations from deploying our platforms and solutions or, in some cases, prevent the export or import of our platforms and solutions to certain countries, governments or persons altogether. Any change in export or import laws and regulations, shift in the enforcement or scope of existing laws and regulations, or change in the countries, governments, persons or technologies targeted by such laws and regulations, could also result in decreased use of our platforms and solutions, or in our decreased ability to export or sell our platforms and solutions to existing or potential service provider partners with international operations. Any decreased use of our platforms and solutions or limitations on our ability to export or sell our platforms and solutions would likely adversely affect our business, financial condition, cash flows and results of operations.
Furthermore, there is currently significant uncertainty about the future political relationship between the United States and various other countries, including China, the European Union, Canada, Vietnam and Mexico, with respect to trade policies, treaties, tariffs and customs duties, and taxes. In 2019, the U.S. administration imposed significant changes to U.S. trade policy with respect to China. Tariffs have subjected certain of our products manufactured overseas to additional import duties of up to 25%. The amount of the import tariff and the number of products subject to tariffs have changed numerous times based on action by the U.S. administration. We are addressing the risks related to these imposed and announced tariffs, which have affected, or have the potential to affect, at least some of our imports from China. Future changes to tariff rates could adversely affect our business, financial condition, cash flows, and results of operations.
Our integrators are required to abide by various national, state and local regulatory requirements, including obtaining certifications and licenses in order to install and maintain certain products and technologies. For example, certain lighting products may only be installed by certified electricians. Other products, such as certain low-voltage products, may not require certifications or licenses in certain jurisdictions. National, state, or local regulatory requirements may change and require our integrators to obtain additional licenses, permits, and certifications to install our products. Such regulatory changes may make it more difficult and expensive for our integrators to install our products and therefore make it more difficult for us to sell our products.
Changes in laws that apply to us could result in increased regulatory requirements and compliance costs or the inability to import or export products or components from or to certain markets, which could harm our business, financial condition, cash flows and results of operations. In certain jurisdictions, regulatory requirements may be more stringent than in the United States. Noncompliance with applicable regulations or requirements could subject us to whistleblower complaints, investigations, sanctions, settlements, mandatory product recalls, enforcement actions, disgorgement of profits, fines, damages, civil and criminal penalties or injunctions, suspension or debarment from contracting with certain governments or other end
consumers, the loss of export privileges, multi-jurisdictional liability, reputational harm and other collateral consequences. If any governmental or other sanctions are imposed, or if we do not prevail in any possible civil or criminal litigation, our business, financial condition, cash flows and results of operations could be materially harmed. In addition, responding to any action will likely result in a materially significant diversion of management’s attention and resources and an increase in defense costs and other professional fees. Enforcement actions and sanctions could further harm our business, financial condition, cash flows and results of operations.
Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), we are required to adhere to certain reporting and other requirements regarding the use of certain minerals and derivative metals (referred to as “conflict minerals,” regardless of their actual country of origin) in our products. Some of these metals are commonly used in electronic equipment and devices, including our products. These requirements require that we investigate, disclose and report whether or not any such metals in our products originated from the Democratic Republic of Congo or adjoining countries. We do not directly source any of our own raw conflict minerals; rather we have a complex supply chain, with numerous suppliers for the components and parts used in each of our products. As a result, we incur costs to comply with the diligence and disclosure requirements of Dodd-Frank Act. In addition, because our supply chain is so complex, we may not be able to sufficiently verify the origin of all relevant metals used in our products through the due diligence procedures that we implement. We may incur reputational damage if we determine that any of our products contain minerals or derivative metals that are not conflict free or if we are unable to sufficiently verify the source for all conflict minerals used in our products through the procedures we may implement. Furthermore, key components and parts that can be shown to be “conflict free” may not be available to us in sufficient quantity, or at all, or may only be available at significantly higher cost to us. If we are not able to meet customer requirements, end consumers may choose to disqualify us as a supplier. Any of these outcomes may have a material adverse effect on our business, results of operations and financial condition.
Risks Related to Cybersecurity and Privacy
Failure to maintain the security of our information and technology networks, including information relating to our integrators, distributors, vendors, partners, consumers and employees, could adversely affect our business. In addition, if security breaches in connection with the delivery of our products and services allow unauthorized third parties to obtain control of or otherwise access consumers’ networks or appliances, our reputation, business, results of operations and financial condition could be harmed.
The legal, regulatory and contractual environment surrounding information security, privacy and internet fraud is constantly evolving and companies that collect and retain information are under increasing attack by cyber-criminals around the world. We are dependent on information technology networks and systems, including the Internet, to process, transmit and store electronic information and, in the normal course of our business, we collect and retain certain information, including financial information and personally identifiable information, from and pertaining to our integrators, distributors, partners, consumers and employees. The protection of integrator, distributor, vendor, other partner, consumer and employee data is important to us, and we devote significant resources to addressing security vulnerabilities in our products and information technology systems, and regularly engage with security experts to conduct penetration testing to help us uncover vulnerabilities in our systems. However, the policies and security measures that we put in place could prove to be inadequate and cannot guarantee our systems will be secure, and our information technology infrastructure may be vulnerable to cyber-attacks, data security incidents or other vulnerabilities. Cyber-attacks are increasingly sophisticated, constantly evolving, and often go undetected until after an attack has been launched. We may fail to identify such new and complex methods of attack or fail to invest sufficient resources in security measures. As a result of the COVID-19 pandemic, we may also face increased cybersecurity risks due to our reliance on internet technology and the number of our employees who are working remotely, which may create additional opportunities for cybercriminals to exploit vulnerabilities. We have previously and will continue to experience cyber-attacks, and we cannot be certain that advances in our cybersecurity capabilities or other developments will prevent compromises or breaches of the networks that access our products and services and the repositories where we store our data.
We have acquired companies over the years and may continue to do so in the future. While we make significant efforts to address any information technology security issues with respect to our acquisitions, we may still inherit such risks when we integrate the acquired products and systems.
In addition, consumers can use our tools for authorized, remote access to their systems, and certain of our employees and independent integrators can be provided authorized access to monitor and update certain of our products and services remotely. Security breaches by third parties or by, or originating from, one or more of our integrators or employees, that allow unauthorized access to or control over our consumers’ appliances or data through our products could harm our reputation, business, results of operations and financial condition.
It is difficult to determine what harm may result from any specific interruption or security breach. Any failure or perceived failure to maintain performance, reliability, security and availability of systems or the actual or potential theft, loss, unauthorized use of our products or associated confidential information, including personally identifiable data of an integrator, distributor, partner, end consumer and employee, could result in:
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harm to our reputation or brand, which could lead some consumers to stop using certain of our products or services, reduce or delay future purchases of our products or services, use competing products or services, or materially and adversely affect the overall market perception of the security and reliability of our services and home automation products generally;
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individual and/or class action lawsuits, which could result in financial settlements or judgments against us and that would cause us to incur legal fees and costs;
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legal or regulatory enforcement action, which could result in fines and/or penalties and which would cause us to incur legal fees and costs; and/or
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additional costs associated with responding to the interruption or security breach, such as investigative and remediation costs, the costs of providing individuals and/or data owners with notice of the breach, legal fees, the costs of any additional fraud detection activities, or the costs of prolonged system disruptions or shutdowns.
Any of these actions may have a material adverse effect on our business, results of operations and financial condition.
Because we store, process and use data, some of which contains personal information, we are subject to complex and evolving federal, state and foreign laws and regulations regarding privacy, data protection and other matters. Many of these laws and regulations are subject to change and uncertain interpretation, and could result in investigations, claims, changes to our business practices, increased cost of operations and declines in user growth, retention or engagement, any of which could seriously harm our business.
Our products and services rely heavily on the collection and use of information, including personal information. Because we store, process and use data, some of which contains personal information, we are subject to complex and evolving federal, state and foreign laws and regulations regarding privacy and data protection. Both in the United States and abroad, these laws and regulations are constantly evolving. In the United States in addition to certain regulations at the federal level, each state has its own statutory approach to privacy regulation, and recently states such as California have been very active in pursuing new regulations that are typically more restrictive than other jurisdictions. The application and interpretation of these laws and regulations are often uncertain, particularly in the new and rapidly evolving industry in which we operate. Continually implementing up-to-date data security tools and procedures and maintaining privacy standards that comply with ever-changing privacy regulations in multiple jurisdictions is challenging. If we are found to have breached any consumer protection laws or regulations in any such market, we may be subject to enforcement actions that require us to change our business practices in a manner which may negatively impact our net sales, as well as expose ourselves to litigation, fines, civil and/or criminal penalties and adverse publicity that could cause our end consumers to lose trust in us, negatively impacting our reputation and business in a manner that harms our financial position.
In recent years, there has been an increase in attention to and regulation of data protection and data privacy across the globe, including the Federal Trade Commission (“FTC”)’s increasingly active approach
to enforcing data privacy in the United States, as well as the enactment of the European Union’s General Data Protection Regulation (“GDPR”), which took effect in May 2018, the United Kingdom’s transposition of GDPR into its domestic laws following its withdrawal from the European Union, and the California Consumer Privacy Act (“CCPA”), which took effect in January 2020. In Europe, the GDPR introduced stringent requirements (which will continue to be interpreted through guidance and decisions over the coming years) and requires organizations to erase an individual’s information upon request and implement mandatory data breach notification requirements and includes strict protections on how data may be transferred outside of the European Economic Area (“EEA”). Recent legal developments in Europe have created complexity and uncertainty regarding transfers of personal data from the EEA to the United States. For example, on July 16, 2020, the European Court of Justice struck down a permitted personal data transfer mechanism between the EEA and the United States, invalidating the use of the EU-U.S. Privacy Shield Framework and further casting doubt on the use of another main transfer mechanism, the standard contractual clauses. While standard contractual clauses remain a valid mechanism to transfer data from the EEA to the United States, uncertainty remains as to what, if any, additional steps may be required to remain in compliant with the GDPR. GDPR imposes fines for violation of up to 20 million Euros or up to four percent of the annual global revenues, whichever is greater. Further, following the United Kingdom’s withdrawal from the European Union, and the end of the related transition period, as of January 1, 2021, companies may be subject to both GDPR and the United Kingdom GDPR (“UK GDPR”), which, together with the amended UK Data Protection Act 2018, retains the GDPR in UK national law. The UK GDPR mirrors the fines under the GDPR, i.e., fines up to the greater of 20 million Euros (£17.5 million) or four percent of global turnover. The relationship between the United Kingdom and the European Union in relation to certain aspects of data protection law, including with respect to data transfers, remains unclear, and it is unknown how United Kingdom data protection laws and regulations will develop in the medium to longer term, and how data transfers to and from the United Kingdom will be regulated in the long term. Currently, the European Commission is considering whether to enable free transfer of personal data between the European Union and United Kingdom and published a draft adequacy decision to enable such transfers on February 19, 2021. If adopted, the decision will enable data transfers from European Union member states to the United Kingdom for a four-year period, subject to subsequent extensions. These changes may lead to additional costs and increase our overall risk exposure.
In the United States, CCPA requires companies that process personal information of California residents make new disclosures to consumers about their data collection, use and sharing practices, allows consumers to opt out of certain data sharing with third parties, and provides a new private cause of action for certain specified data breaches. CCPA provides for civil penalties for violations, with enforcement actions coming from the California Attorney General. The effects of CCPA are potentially significant and may require us to modify our data collection or processing practices and policies and to incur substantial costs and expenses to comply. Further, the California Privacy Rights Act, amending and expanding CCPA, was passed via ballot initiative during the November 2020 election, which will further strengthen privacy laws in California and create a new privacy regulatory agency in the state, which could result in greater numbers of enforcement actions and fines. Additionally, the FTC and many state attorneys general are interpreting federal and state consumer protection laws to impose standards for the online collection, use, dissemination and security of data. Each of these privacy, security and data protection laws and regulations could impose significant limitations, require changes to our business, or restrict our use or storage of personal information, which may increase our compliance expenses and make our business more costly or less efficient to conduct.
We publicly post our privacy policies and practices concerning our processing, use and disclosure of personal information. Our privacy policy and other statements we publish provide promises and assurances about privacy and security that could subject us to potential regulatory action or other liabilities if: (a) such statements are found to be deceptive or misrepresentative of our practices, (b) we fail to take adequate measures to ensure that we adhere to applicable regulations, or (c) our third-party data processors fail to adequately protect personal information that they process on our behalf. While we select our third-party data processors carefully, we do not control their actions. Any problems experienced by these third parties, including those resulting from breakdowns or other disruptions in the services provided by such parties or cyber-attacks and security breaches, could adversely affect our ability to service or otherwise conduct our business.
Risks Related to Intellectual Property
If we fail to protect our intellectual property and proprietary rights adequately, our business could be harmed.
We believe that proprietary technology is essential to establishing and maintaining our leadership position. We seek to protect our intellectual property through trade secrets, our confidentiality, non-compete, non-solicitation and nondisclosure agreements, and by registering numerous patents, trademarks, and domain names in various justifications, as well as using other measures, some of which may afford only limited protection. We rely on a combination of patent, trademark, trade secret, copyright and other similar laws to protect our intellectual property. Our means of protecting our proprietary rights may not be adequate or our competitors may independently develop similar or superior technology, or design around our intellectual property.
In addition to patents, we rely on unpatented proprietary technology. Despite our efforts to protect our proprietary rights, unauthorized parties may attempt to copy aspects of our technology or obtain and use information that we regard as proprietary. It is possible that others will independently develop the same or similar technology or otherwise obtain access to our unpatented technology. To protect our trade secrets and other proprietary information, we require employees, consultants, and independent contractors to enter into confidentiality agreements. However, such agreements may not be enforceable in full or in part in all jurisdictions and regardless of enforceability, any breach of these agreements could have a negative effect on our business and our remedies may be limited. We cannot assure you that these agreements or other steps we take to protect or proprietary and confidential information, including our trade secrets, will provide meaningful protection for our confidential and proprietary information. If we are unable to maintain the proprietary nature of our technologies, our business could be materially adversely affected.
We also rely on our trademarks, trade names, and brand names to distinguish our solutions from the products of our competitors and have registered or applied to register many of these trademarks in the United States and certain countries outside the United States. As we rely in part on brand names and trademark protection to enforce our intellectual property rights, efforts by third parties to limit use of our brand names or trademarks and barriers to the registration of brand names and trademarks in various countries may restrict our ability to promote and maintain a cohesive brand throughout our key markets. There can also be no assurance that pending or future U.S. or foreign trademark applications will be approved in a timely manner or at all, or that such registrations will effectively protect our brand names and trademarks. Third parties may also oppose our trademark applications, or otherwise challenge our use of the trademarks. In the event that our trademarks are successfully challenged, we could be forced to rebrand, which could result in loss of brand recognition and would require us to devote resources to advertising and marketing new brands.
In addition, the laws of some foreign countries do not protect our proprietary rights to as great an extent as the laws of the United States. Intellectual property protections may also be unavailable, limited or difficult to obtain and enforce in some countries, which could make it easier for competitors to capture market share. For example, many foreign countries limit the enforceability of patents against certain third parties, including government agencies or government contractors. In these countries, patents may provide limited or no benefit. Effective trade secret protection may also not be available in every country in which our products are available or where we have employees or independent contractors. In addition, any changes in, or unexpected interpretations of, the trade secret, intellectual property, or employment laws in any country in which we operate may compromise our ability to enforce our trade secret and other intellectual property rights.
To prevent substantial unauthorized use of our intellectual property rights, it may be necessary to prosecute actions for infringement and/or misappropriation of our proprietary rights against third parties. Any such action could result in significant costs and diversion of our resources and management’s attention, and we cannot assure that we will be successful in such action. Furthermore, many of our current and potential competitors have the ability to dedicate substantially greater resources to enforce their intellectual property rights (or to contest claims of infringement) than we do. Accordingly, despite our efforts, we may not be able to prevent third parties from knowingly or unknowingly infringing upon or misappropriating our intellectual property rights. If we are unable to protect our intellectual property rights (including aspects of our software and platform protected other than by patent rights), we will find ourselves at a competitive
disadvantage to others who need not incur the additional expense, time and effort required to create our platform and other innovative products that have enabled us to be successful to date.
An assertion by a third-party that we are infringing its intellectual property could, regardless of merit, subject us to costly and time-consuming litigation and could further lead to expensive licenses or significant liabilities in the event of an adverse judgment.
The industry in which we compete is characterized by the existence of a large number of patents, copyrights, trademarks and trade secrets, and by frequent litigation based on allegations of infringement or other violations of intellectual property rights. There may be third-party intellectual property rights, including issued or pending patents, that cover significant aspects of our technologies or business methods. As we face increasing competition and our public profile increases, the possibility of intellectual property rights claims against us may also increase. We have been subject to intellectual property litigation in the past and we may be subject to similar litigation in the future. Given that some of our core product lines are, or integrate with, network aware products, the risk that our solutions may be subject to these allegations may be exacerbated because of the litigious environment for connectivity technologies. Further, we may face exposure to third-party intellectual property infringement, misappropriation, or violation actions if we engage software engineers or other personnel who were previously engaged by competitors or other third parties and those personnel inadvertently or deliberately incorporate proprietary technology of third parties into our products. A loss of key personnel or their work product in connection with such actions could hamper or prevent our ability to develop, market, and support potential products or enhancements, which could harm our business. Any intellectual property claims, with or without merit, could be very time-consuming and expensive to settle or litigate.
We are defendants in legal proceedings related to intellectual property rights from time to time, and in the past, we have entered into settlement agreements relating to contractual claims and alleged patent infringements, which have included future royalty payments on certain products, the payment of a lump sum amount for alleged past damages and/or the payment of a fixed amount in exchange for a covenant not to sue.
We might not prevail in any current or future intellectual property infringement litigation given the complex legal and technical issues and inherent uncertainties in such litigation. Defending such claims, regardless of their merit, could be time-consuming and distracting to management, result in costly litigation or settlement, cause development delays or require us to enter into royalty or licensing agreements. In addition, we currently have a limited portfolio of issued patents compared to some of our competitors, and therefore may not be able to effectively utilize our intellectual property portfolio to assert defenses or counterclaims, or negotiate cross-licenses in response to patent infringement claims or litigation brought against us by third parties. Further, litigation may involve patent holding companies or other adverse patent owners who have no relevant products or revenues and against which our potential patents provide no deterrence, and many other potential litigants have the capability to dedicate substantially greater resources to enforce their intellectual property rights and to defend claims that may be brought against them. If our solutions exceed the scope of in-bound licenses or violate any third-party proprietary rights, we could be required to withdraw those solutions from the market, re-develop those solutions or seek to obtain licenses from third parties, which might not be available on reasonable terms or at all. Any efforts to re-develop our solutions, obtain licenses from third parties on favorable terms or license a substitute technology might not be successful and, in any case, might substantially increase our costs and harm our business, financial condition and results of operations. If we were compelled to withdraw any of our solutions from the market, it may have a material adverse effect on our business, results of operations and financial condition.
We have agreed to indemnify our independent integrators and other partners for certain intellectual property infringement claims regarding our products and other materials we provide to them. As a result, in the case of infringement claims against these partners, we could be required to indemnify them for losses resulting from such claims. We expect that some of our partners may seek indemnification from us in connection with infringement claims brought against them. We evaluate each such request on a case-by-case basis and we may not succeed in refuting any such claim we believe to be unjustified. If a partner elects to invest resources in enforcing a claim for indemnification against us that we believe is unjustified, we could incur significant costs in disputing it. If we do not succeed in disputing it, we could face substantial liability.
The use of open source software in our solutions may expose us to additional risks and harm our intellectual property.
Some of our solutions use or incorporate software that is subject to one or more open source licenses. If we combine or link our proprietary software with certain open source software and distribute or make available such software to third parties, we could, under the terms of the applicable open source licenses, be required to disclose part or all of the source code of our proprietary software publicly or to allow further modification and redistribution of such software on potentially unfavorable terms or at no cost. This could provide an advantage to our competitors or other entrants to the market, allow them to create similar products with lower development effort and time, and ultimately result in a loss of sales for us. We may also be required to spend time and effort to remediate such uses of open source software.
The terms of many open source licenses to which we are subject have not been interpreted by U.S. or foreign courts, and accordingly there is a risk that those licenses could be construed in a manner that imposes unanticipated conditions or restrictions on our ability to commercialize our solutions. In that event, we could be required to seek licenses from third parties in order to continue offering our solutions, to redevelop our solutions, to discontinue sales of our solutions or to release our proprietary software code under the terms of an open source license, any of which could harm our business. Enforcement activity for open-source licenses can also be unpredictable. From time to time, companies that use third-party open source software have also faced claims challenging the use of such open source software and their compliance with the terms of the applicable open source license. We may be subject to suits by parties claiming ownership of what we believe to be open source software, or claiming non-compliance with the applicable open source licensing terms. Were it determined that our use was not in compliance with a particular license, we may be required to release our proprietary source code, defend claims, pay damages for breach of contract or copyright infringement, grant licenses to our patents, re-engineer our products, discontinue distribution in the event re-engineering cannot be accomplished on a timely basis, or take other remedial action that may divert resources away from our product development efforts, any of which could negatively impact our business. Open source compliance problems can also result in damage to reputation and challenges in recruitment or retention of engineering personnel. Any related litigation could be costly for us to defend, have a material adverse effect on our business, results of operations and financial condition, or require us to devote additional research and development resources to change our solutions.
We rely on the availability of third-party licenses and our inability to maintain those licenses could harm our business and results of operations.
We rely on third-party licensed technology, which we have incorporated into our products. Some of our agreements with our licensors may be terminated by them for convenience, or otherwise provide for a limited term. In addition, we may need to seek additional licenses for existing or new products, which may not be available on acceptable terms, or at all. The inability to obtain certain licenses or other rights, or to obtain those licenses or rights on favorable terms, or the need to engage in litigation regarding these matters, could result in our inability to include certain features in our products or delays in product releases, force us to acquire or develop alternative technology, which we may be unable to do in a commercially feasible manner or at all, and require us to use alternative technology of lower quality or performance standards. Any of the foregoing would disrupt the distribution and sale of our products and harm our business, results of operations and financial condition.
Any errors or defects in third-party software could also result in errors or a failure of products. Moreover, the inclusion in our products of intellectual property licensed from third parties on a nonexclusive basis could limit our ability to protect our proprietary rights in our products. We cannot be certain that our licensors do not or will not infringe on the intellectual property rights of third parties or that our licensors have or will have sufficient rights to the licensed intellectual property in all jurisdictions in which we may sell our products, or that our remedies in the event of such infringement will be sufficient.
Risks Related to Our International Operations
We are subject to a number of risks associated with international sales and operations.
We have a limited history of marketing, selling, and supporting our products and services internationally. However, international net sales accounted for 11.6% of our total net sales for fiscal year 2020, and
that percentage may grow in the future. As a result, we must hire and train experienced personnel to staff and manage our foreign operations. To the extent that we experience difficulties in recruiting, training, managing, and retaining international integrators, distributors, and international staff, and specifically staff related to sales management and sales personnel, we may experience difficulties in productivity in foreign markets.
If we are not able to increase the sales of our solutions to consumers located outside of North America, our results of operations or net sales growth may be harmed. In addition, in connection with our expansion into foreign markets, we are a receiver of currencies other than the U.S. dollar. Accordingly, changes in exchange rates, and in particular a strengthening of the U.S. dollar, will negatively affect our net sales as expressed in U.S. dollars. There is also a risk that we will have to adjust local currency product pricing due to competitive pressures when there has been significant volatility or changes in foreign currency exchange rates.
Conducting and launching operations on an international scale requires close coordination of activities across multiple jurisdictions and time zones and consumes significant management resources. Our limited experience in operating our business in certain countries outside of the United States increases the risk that our current and any future international expansion efforts will not be successful. Conducting international operations subjects us to risks that, generally, we do not face in the United States, including:
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Fluctuations in currency exchange rates, including as a result of the United Kingdom’s (“U.K.”) withdrawal from the European Union (“E.U.”), commonly referred to as “Brexit”;
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Unexpected changes in foreign regulatory requirements;
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Longer accounts receivable payment cycles and difficulties in collecting accounts receivable;
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Difficulties in managing and staffing international operations, including differences in labor laws, which may result in higher personnel-related liabilities and expenses;
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Potentially adverse tax consequences, including the complexities of foreign value added tax systems and restrictions on the repatriation of earnings;
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Localization of our solutions and other materials, including translation into foreign languages and associated expenses;
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Localization of applicable agreements under applicable foreign law and differing legal standards and risks;
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The burdens of complying with a wide variety of foreign laws and different legal standards, including laws and regulations related to import/export, privacy, the transfer of personal information across borders, data security and limitations on liability;
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Increased financial accounting and reporting burdens and complexities;
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Political, social and economic instability abroad, terrorist attacks and security concerns in general, including crime and cyber security; and
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Reduced or varied protection for intellectual property rights in some countries.
The impact of any one of these could harm our international business and, consequently, our results of operations generally. Moreover, operating in international markets also requires significant management attention and financial resources. We cannot be certain that the investment and additional resources required in establishing, acquiring or integrating operations and personnel in other countries will produce desired levels of net sales or profitability.
Due to the global nature of our business, we could be harmed by violations of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act or similar anti-corruption laws in other jurisdictions in which we operate, or various international trade and export laws.
The global nature of our business creates various domestic and local regulatory challenges, including compliance with applicable anti-corruption laws and regulations. Where they apply, the U.S. Foreign Corrupt
Practices Act (the “FCPA”), the U.K. Bribery Act 2010 (the “U.K. Bribery Act”), and similar anti-corruption laws in other jurisdictions generally prohibit companies and their directors, officers, employees and intermediaries from making improper payments to foreign government officials for the purpose of obtaining or retaining business or securing an improper business advantage. The U.K. Bribery Act and other anti-corruption laws that could apply to our business also prohibit non-governmental “commercial” bribery and accepting bribes. In addition, U.S.-listed companies are required to maintain books records that accurately and fairly represent their transactions and to implement and enforce an adequate system of internal accounting controls.
Our global operations expose us to the risk of violating, or being accused of violating, anti-corruption laws and regulations. Our business requires us to import from and export to several countries, which exposes us to corruption risks, and we rely heavily on intermediaries to support our sales and marketing operations, including integrators and distributors, and we could potentially face liability if these intermediaries engage in misconduct related to our business. We also operate in areas of the world that have elevated corruption risks and, in certain circumstances, compliance with anti-corruption laws may conflict with local customs and practices. Although our policies and procedures prohibit bribery and we periodically train our employees and agents about these anti-corruption laws, we cannot assure compliance by our personnel or intermediaries with such anti-corruption laws, which could harm our business, financial condition and results of operations. Our employees or other agents may engage in prohibited conduct and render us responsible under the FCPA, the U.K. Bribery Act or similar anti-corruption laws. If we are found to be in violation of the FCPA, the U.K. Bribery Act or other anti-corruption laws, this may expose us to reputational harm, investigation costs, or significant sanctions, including disgorgement of profits, injunctions and suspension or debarment from government contracts, criminal or civil penalties or other sanctions, which could harm our business.
Risks Related to Our Indebtedness
Our substantial indebtedness could materially adversely affect our financial condition and our ability to operate our business, react to changes in the economy or industry or pay our debts and meet our obligations under our debt and could divert our cash flow from operations for debt payments.
We have substantial indebtedness under the term loan portion of our Credit Agreement. As of March 26, 2021, our total term loan borrowings under our Credit Agreement was $670.9 million. We plan to use a portion of the proceeds from this offering to repay indebtedness, and we will continue to have a significant amount of indebtedness following this offering. See “Use of Proceeds.” In addition, as of March 26, 2021, we had a $60 million revolving credit facility (the “Revolving Credit Facility”) under our Credit Agreement under which we had $55.1 million of availability after giving effect to outstanding letters of credit. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity and Capital Resources.” In addition, subject to restrictions in the agreements governing our Credit Facilities, we may incur additional debt.
Our substantial indebtedness could have negative consequences, including the following:
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it may be difficult for us to satisfy our obligations, including debt service requirements under our outstanding debt, resulting in possible defaults on and acceleration of such indebtedness;
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our ability to obtain additional financing for working capital, capital expenditures, debt service requirements, acquisitions or other general corporate purposes may be impaired;
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a substantial portion of cash flow from operations may be dedicated to the payment of principal and interest on our debt, therefore reducing our ability to use our cash flow to fund our operations, capital expenditures, future business opportunities, acquisitions and other purposes;
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we are more vulnerable to economic downturns and adverse industry conditions and our flexibility to plan for, or react to, changes in our business or industry is more limited;
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our ability to capitalize on business opportunities and to react to competitive pressures, as compared to our competitors, may be compromised due to our high level of debt; and
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our ability to borrow additional funds or to refinance debt may be limited.
Furthermore, all of our debt under out Credit Agreement bears interest at variable rates based on LIBOR. If these rates were to increase significantly, our debt service obligations would increase even though the amount borrowed remained the same, and our net income and cash flows, including cash available for servicing our indebtedness, would correspondingly decrease. Accordingly, our ability to borrow additional funds may be reduced and risks related to our substantial indebtedness would intensify. Each quarter-point increase in the LIBOR would increase interest expense on our current variable rate debt by approximately $1.8 million during 2021.
On July 27, 2017, the United Kingdom’s Financial Conduct Authority, which regulates LIBOR, announced that it intends to phase out LIBOR by the end of 2021. It is unclear if LIBOR will cease to exist at that time or if new methods of calculating LIBOR will be established such that it continues to exist after 2021. On November 30, 2020, the ICE Benchmark Administration (“IBA”), the administrator of LIBOR, with the support of the United States Federal Reserve and the United Kingdom’s Financial Conduct Authority, announced plans to consult on ceasing publication of USD LIBOR on December 31, 2021 for only the one week and two month USD LIBOR tenors, and on June 30, 2023 for all other USD LIBOR tenors. While this announcement extends the transition period to June 2023, the United States Federal Reserve concurrently issued a statement advising banks to stop new USD LIBOR issuances by the end of 2021. In light of these recent announcements, the future of LIBOR at this time is uncertain and any changes in the methods by which LIBOR is determined or regulatory activity related to LIBOR’s phaseout could cause LIBOR to perform differently than in the past or cease to exist. Although regulators and the IBA have made clear that the recent announcements should not be read to say that LIBOR has ceased or will cease, in the event LIBOR does cease to exist, we may need to renegotiate our Credit Agreement and other related agreements, which may result in interest rates and/or payments that do not correlate over time with the interest rates and/or payments that would have been our obligations if LIBOR was available in its current form. Changes in the method of calculating LIBOR, or the replacement of LIBOR with an alternative rate or benchmark, may adversely affect interest rates and result in higher borrowing costs. This could materially and adversely affect our results of operations, cash flow and liquidity.
We and our subsidiaries may be able to incur substantial additional debt in the future. Although our Credit Agreement governing our Credit Facilities contains restrictions on the incurrence of additional debt, these restrictions are subject to a number of qualifications and exceptions, and the debt incurred in compliance with these restrictions could be substantial. Additionally, we may successfully obtain waivers of these restrictions. These restrictions also do not prevent us from incurring obligations, such as trade payables, that do not constitute indebtedness as defined under our Credit Agreement. If we incur additional debt above the levels currently in effect, the risks associated with our leverage, including those described above, would increase.
Servicing our debt requires a significant amount of cash. Our ability to generate sufficient cash depends on numerous factors beyond our control, and we may be unable to generate sufficient cash flow to service our debt obligations.
Our business may not generate sufficient cash flow from operating activities to service our debt obligations. Our ability to make payments on and to refinance our debt and to fund planned capital expenditures depends on our ability to generate cash in the future. To some extent, this is subject to general and regional economic, financial, competitive, legislative, regulatory and other factors that are beyond our control.
If we are unable to generate sufficient cash flow from operations to service our debt and meet our other commitments, we may need to refinance all or a portion of our debt, sell material assets or operations, delay capital expenditures or raise additional debt or equity capital. We may not be able to affect any of these actions on a timely basis, on commercially reasonable terms or at all, and these actions may not be sufficient to meet our capital requirements. In addition, the terms of our existing or future debt agreements may restrict us from pursuing any of these alternatives.
Restrictive covenants in our Credit Agreement governing our indebtedness may restrict our ability to pursue our business strategies, and failure to comply with any of these restrictions could result in acceleration of our debt.
The operating and financial restrictions and covenants in our Credit Agreement may materially adversely affect our ability to distribute monies to our stockholders, finance future operations or capital needs or engage in other business activities. Such agreements limit our ability, among other things, to:
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incur additional indebtedness and guarantee indebtedness;
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pay dividends on or make distributions in respect of our common stock or make other restricted payments;
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make loans and investments;
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sell or otherwise dispose of assets;
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incur liens;
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consolidate, merge, sell or otherwise dispose of all or substantially all of our assets;
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enter into agreements restricting our subsidiaries’ ability to pay dividends;
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enter into certain transactions with our affiliates; and
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designate our subsidiaries as unrestricted subsidiaries.
In addition, the covenants in our Credit Agreement require us to maintain a specified first lien secured net leverage ratio when a certain percentage of our Revolving Credit Facility commitments are borrowed and outstanding as of the end of each fiscal quarter. The Revolving Credit Facility under our Credit Agreement is subject to a first lien secured net leverage ratio of 8.15 to 1:00, tested quarterly if, and only if, the aggregate principal amount from the revolving facility, letters of credit (to the extent not cash collateralized or backstopped or, in the aggregate, not in excess of the greater of $5.0 million and the stated face amount of letters of credit outstanding on the initial closing date of the Credit Agreement) and swingline loans outstanding and/or issued, as applicable, exceeds 35% of the total amount of the Revolving Credit Facility commitments. In certain circumstances, our ability to meet this financial covenant may be affected by events beyond our control.
A breach of the covenants under our Credit Agreement could result in a default or an event of default under the Credit Agreement. Such a default or event of default might allow the creditors to accelerate all amounts outstanding under our Credit Agreement and might result in the acceleration of any other debt or the termination of other third-party contracts to which a cross-acceleration or cross-default provision applies. In addition, an event of default under our Credit Agreement would permit the lenders to terminate all commitments to extend further credit to us. Furthermore, we have pledged a significant portion of our assets as collateral to secure our debt, and if we were unable to repay the amounts due and payable, those creditors could proceed against the collateral. In the event our lenders accelerate the repayment of our borrowings, we and our subsidiaries may not have sufficient assets to repay that indebtedness.
As a result of all of these restrictions, we and/or our subsidiaries, as applicable, may be:
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limited in how we conduct our business;
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unable to raise additional debt or equity financing to operate during general economic or business downturns; or
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unable to compete effectively or to take advantage of new business opportunities.
These restrictions might hinder our ability to service our indebtedness or grow in accordance with our business strategy.
Furthermore, the terms of any future indebtedness we may incur could have further additional restrictive covenants. We may not be able to maintain compliance with these covenants in the future, and in the event that we are not able to maintain compliance, we cannot assure you that we will be able to obtain waivers from the lenders or amend the covenants.
A downgrade in our credit ratings could increase our cost of funding and/or adversely affect our access to debt financing and working capital, as well as result in a loss of business and materially adversely affect our financial condition and results of operations.
Our credit ratings are important to our cost and availability of capital. The major rating agencies routinely evaluate our credit profile and assign credit ratings to us. This evaluation is based on a number of
factors, which include financial strength, business and financial risk, as well as transparency with rating agencies and timeliness of financial reporting. The addition of further leverage to our capital structure could result in a downgrade to our credit ratings in the future. As such, failure to maintain our current credit rating could adversely affect our cost of funding and our liquidity by limiting the access to capital markets or the availability of funding potential lenders. In addition, we purchase material and services from some suppliers on extended terms based on our overall credit rating. Negative changes in our credit rating may impact suppliers’ willingness to extend terms and increase the cash requirements of the business.
Risks Related to Our Financial Statements
We may be subject to additional tax liabilities, which could materially adversely affect our financial condition, results of operations or cash flows.
We are subject to income, sales, use, value added, tariffs and other taxes in the United States and other countries in which we conduct business, which laws and rates vary greatly by jurisdiction. Certain jurisdictions in which we do not collect sales, use, value added, tariffs or other taxes on our sales may assert that such taxes are applicable, which could result in tax assessments, penalties and interest, and we may be required to collect such taxes in the future. Significant judgment is required in determining our worldwide provision for income taxes and evaluating our uncertain tax positions. These determinations are highly complex and require detailed analysis of the available information and applicable statutes and regulatory materials. In the ordinary course of our business, there are many transactions and calculations where the ultimate tax determination is uncertain. Although we believe our tax estimates are reasonable, the final determination of tax audits and any related litigation could be different from our historical tax practices, provisions and accruals. If we receive an adverse ruling as a result of an audit, or we unilaterally determine that we have misinterpreted provisions of the tax regulations to which we are subject, our tax provision, results of operations or cash flows could be harmed. In addition, liabilities associated with taxes are often subject to an extended or indefinite statute of limitations period. Therefore, we may be subject to additional tax liability (including penalties and interest) for any particular year for extended periods of time depending on the specific statute of limitations in the relevant jurisdiction.
We have a recent history of losses and expect to incur increased operating costs in the future, and we may not achieve or sustain profitability or current revenue growth.
We have recorded net losses and negative cash flows from our operations in the past. We expect our operating expenses to increase in the future as we expand our operations and execute on our product roadmap and strategy. We also plan to make significant future expenditures related to the expansion of our business and our product offerings including investments in:
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research and development to continue to introduce innovative new products and enhance existing products;
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sales and marketing to expand our brand awareness, promote new products, increase our customer base and expand sales within our existing customer base; and
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legal, accounting, information technology and other administrative expenses to sustain our operations as a public company.
If our net sales do not continue to grow to offset any increased expenses, we may continue to record net losses. We may incur significant losses in the future for a number of reasons, including without limitation the other risks and uncertainties described herein. Additionally, we may encounter unforeseen operating or legal expenses, difficulties, complications, delays in manufacturing and selling our products and other unknown factors that may result in losses in future periods. If these losses exceed our expectations or our net sales growth expectations are not met in future periods, our operating results could be adversely affected and our stock price could be harmed and we may need to establish a valuation allowance for our U.S. federal and state deferred tax assets again in the future and our stock price may fall.
We may be required to recognize an impairment of our goodwill and other identifiable intangible assets, which represent a significant portion of our total assets.
As of March 26, 2021, we had $559.7 million of goodwill and $606.2 million of unamortized identifiable intangible assets recorded on our balance sheet. We test such assets for impairment at least annually on the
last day of the third quarter of each year or on an interim basis whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable. Impairment may result from, among other things, deterioration in performance, adverse market conditions, adverse changes in applicable laws or regulations, including changes that restrict the activities of or affect the solutions we offer, challenges to the validity of certain registered intellectual property, reduced sales of certain products or services incorporating registered intellectual property, increased attrition and a variety of other factors. The amount of any quantified impairment must be expensed immediately as a charge to results of operations. Depending on future circumstances, it is possible that we may never realize the full value of our intangible assets. An impairment of all or a part of our goodwill or other identifiable intangible assets may have a material adverse effect on our business, financial condition, and results of operations. Refer to “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” and Note 7 to our consolidated financial statements included elsewhere in this prospectus for further discussion of our goodwill and other intangible assets.
Changes in accounting standards issued by the Financial Accounting Standards Board (the “FASB”), or other standard-setting bodies may adversely affect trends and comparability of our financial results.
We are required to prepare our financial statements in accordance with GAAP, which is periodically revised and/or expanded. From time to time, we are required to adopt new or revised accounting standards issued by recognized authoritative bodies, including the FASB and the SEC. It is possible that future accounting standards we are required to adopt may require additional changes to the current accounting treatment that we apply to our financial statements and may result in significant changes to our results, disclosures and supporting reporting systems. Such changes could result in a material adverse impact on our results of operations and financial condition.
Trends in research and development spending could adversely affect our growth potential, business, results of operations, financial condition and/or cash flows.
Our business operates in competitive markets characterized by changing consumer preferences and rapid technological innovation. We have made and expect to continue to make significant investments in research and development and related product opportunities. For fiscal year 2020, we invested $52 million in research and development activities. High levels of investment for research and development could harm our results of operations, especially if not offset by corresponding future net sales increases. We believe that we must continue to dedicate a significant amount of resources to our research and development efforts to maintain our competitive position. However, it is difficult to estimate when, if ever, we will generate significant net sales as a result of these investments which could adversely impact our operating results as well as our reputation.
We may be required to make payments under our contingent value rights agreement with certain former holders.
Subject to the terms and conditions of the Agreement and Plan of Merger dated June 19, 2017 (the “Merger Agreement”) by and among us, former holders of the Company (the “Former Holders”) and the other parties thereto, the Former Holders received non-transferable contingent value rights (“CVRs”), which collectively entitle the Former Holders to receive from us, in certain circumstances, aggregate payments in an aggregate of up to $25 million. Each CVR gives a Former Holder the ability to earn cash payments based on the return of the Investor original investment hitting stated thresholds in relation to the proceeds received from disposition of the Investor’s initial ownership units. The CVRs were issued at two thresholds. The first CVR is payable to the Former Holders when the Investor’s return on investment grows to between 2.25 and 2.5 times the Investor’s original investment. The second CVR is payable to the Former Holders when the Investor’s return on investment grows to between 2.5 and 2.67 times the Investor’s original investment. To the extent we are required to make a payment to the Former Holders under the Merger Agreement, our liquidity may be adversely affected. For additional information on our obligations under the Merger Agreement, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Contingent Valuation Rights (“CVRs”).”
Risks Related to This Offering and Our Common Stock
We are controlled by Hellman & Friedman, whose interests may be different from the interests of other holders of our securities.
Upon the completion of this offering, certain investment funds advised by an affiliate of Hellman & Friedman will own approximately % of our outstanding common stock, or approximately % if the underwriters exercise in full their option to purchase additional shares, and will have the ability to nominate of the members of our board of directors. As a result, Hellman & Friedman is able to control actions to be taken by us, including future issuances of our common stock or other securities, the payment of dividends, if any, on our common stock, amendments to our organizational documents and the approval of significant corporate transactions, including mergers, sales of substantially all of our assets, distributions of our assets, the incurrence of indebtedness and any incurrence of liens on our assets.
The interests of Hellman & Friedman may be materially different than the interests of our other stakeholders. In addition, Hellman & Friedman may have an interest in pursuing acquisitions, divestitures and other transactions that, in their judgment, could enhance their investment, even though such transactions might involve risks to you. For example, Hellman & Friedman may cause us to take actions or pursue strategies that could impact our ability to make payments under our Credit Agreement or cause a change of control. In addition, to the extent permitted by our Credit Agreement, Hellman & Friedman may cause us to pay dividends rather than make capital expenditures or repay debt. Hellman & Friedman is in the business of making investments in companies and may from time to time acquire and hold interests in businesses that compete directly or indirectly with us. Our amended and restated certificate of incorporation will provide that Hellman & Friedman, its affiliates and any director who is not employed by us (including any non-employee director who serves as one of our officers in both his director and officer capacities) or his or her affiliates will not have any duty to refrain from engaging, directly or indirectly, in the same business activities or similar business activities or lines of business in which we operate. Hellman & Friedman also may pursue acquisition opportunities that may be complementary to our business, and, as a result, those acquisition opportunities may not be available to us.
So long as Hellman & Friedman continue to own a significant amount of our outstanding common stock, even if such amount is less than 50%, they will continue to be able to strongly influence or effectively control our decisions and, so long as Hellman & Friedman continues to own shares of our outstanding common stock, they will have the ability to nominate individuals to our board of directors pursuant to a stockholders agreement to be entered into in connection with this offering. See “Certain Relationships and Related Party Transactions — Stockholders Agreement.” In addition, Hellman & Friedman will be able to determine the outcome of all matters requiring stockholder approval and will be able to cause or prevent a change of control of our company or a change in the composition of our board of directors and could preclude any unsolicited acquisition of our company. The concentration of ownership could deprive you of an opportunity to receive a premium for your shares of common stock as part of a sale of our company and ultimately might affect the market price of our common stock.
We will be a “controlled company” within the meaning of the Nasdaq rules and the rules of the SEC. As a result, we will qualify for exemptions from certain corporate governance requirements that provide protection to stockholders of other companies.
After completion of this offering, Hellman & Friedman will continue to own a majority of our outstanding common stock. As a result, we will be a “controlled company” within the meaning of the corporate governance standards of Nasdaq. Under these rules, a company of which more than 50% of the voting power is held by an individual, group or another company is a “controlled company” and may elect not to comply with certain corporate governance requirements, including:
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the requirement that a majority of our board of directors consist of “independent directors” as defined under the rules of the Nasdaq;
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the requirement that we have a compensation committee that is composed entirely of directors who meet the independence standards for compensation committee members with a written charter addressing the committee’s purpose and responsibilities; and
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the requirement that our director nominations be made, or recommended to our full board of directors, by our independent directors or by a nominations committee that consists entirely of independent directors and that we adopt a written charter or board resolution addressing the nominations process.
Following this offering, we [do/do not] intend to utilize these exemptions. However, if we utilize any of these exemptions in the future, you will not have the same protections afforded to stockholders of companies that are subject to all of the corporate governance requirements of the Nasdaq.
No public market for our common stock currently exists, and an active public trading market may not develop or be sustained following this offering.
No public market for our common stock currently exists. An active public trading market may not develop following the completion of this offering or, if developed, may not be sustained. The lack of an active market may impair your ability to sell your shares at the time you wish to sell them or at a price that you consider reasonable. The lack of an active market may also reduce the fair value of your shares. An inactive market may also impair our ability to raise capital to continue to fund operations by selling shares and may impair our ability to acquire other companies or technologies by using our shares as consideration. We cannot predict the prices at which our common stock will trade. It is possible that in one or more future periods our results of operations may be below the expectations of public market analysts and investors and, as a result of these and other factors, the price of our common stock may fall.
You will incur immediate dilution in the net tangible book value of the shares you purchase in this offering.
The initial public offering price of our common stock is higher than the net tangible book value per share of outstanding common stock prior to completion of this offering. Based on our net tangible book value as of December 25, 2020, upon the issuance and sale of shares of common stock by us at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, if you purchase our common stock in this offering, you will suffer immediate dilution of approximately $ per share in net tangible book value. Dilution is the amount by which the offering price paid by purchasers of our common stock in this offering will exceed the pro forma net tangible book value per share of our common stock upon completion of this offering. A total of and shares of common stock have been reserved for future issuance under the 2017 Incentive Plan, 2021 Incentive Plan, and 2021 Employee Stock Purchase Plan, respectively. You may experience additional dilution upon future equity issuances or the exercise of stock options to purchase common stock granted to our directors, officers and employees under our current and future stock incentive plans, including the 2017 Incentive Plan and 2021 Incentive Plan, as well as the 2021 Employee Stock Purchase Plan. See “Dilution.”
Our stock price may change significantly following this offering, and you may not be able to resell shares of our common stock at or above the price you paid or at all, and you could lose all or part of your investment as a result.
The trading price of our common stock is likely to be volatile. The stock market has experienced extreme volatility. This volatility often has been unrelated or disproportionate to the operating performance of particular companies. We and the underwriters have negotiated to determine the initial public offering price. You may not be able to resell your shares at or above the initial public offering price due to a number of factors such as those listed in other portions of this “Risk Factors” section and the following:
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actual or anticipated fluctuations in our quarterly financial and operating results, including our Contribution Margin;
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introduction of new products, solutions or services by us or our competitors;
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our ability to integrate operations, technology, products and services;
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issuance of new or changed securities analysts’ reports or recommendations;
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sales, or anticipated sales, of large blocks of our stock;
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additions or departures of key personnel;
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changing economic conditions;
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industry developments; and
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any default on our indebtedness.
These broad market and industry fluctuations may materially adversely affect the market price of our common stock, regardless of our actual operating performance. In addition, price volatility may be greater if the public float and trading volume of our common stock are low.
In the past, following periods of market volatility, stockholders have instituted securities class action litigation. If we were involved in securities litigation, it could have a substantial cost and divert resources and the attention of executive management from our business regardless of the outcome of such litigation.
We will be required to pay the TRA Participants for net operating losses and certain other tax benefits that arose prior to or in connection with this offering and make a cash distribution to certain pre-IPO owners that are not TRA Participants, which amounts are expected to be material.
As described in “Certain Relationships and Related Party Transactions — Tax Receivable Agreement” in connection with this offering, we expect to be able to utilize certain net operating losses and certain other tax benefits that arose prior to or in connection with this offering and are therefore attributable to the TRA Participants. These tax benefits will reduce the amount of tax that we would otherwise be required to pay in the future.
We will enter into a tax receivable agreement with the TRA Participants that will provide for the payment by us to the TRA Participants of 85% of the amount of cash savings, if any, in U.S. federal, state and local income tax that we actually realize, or are deemed to realize (calculated using certain assumptions), as a result of the utilization of such tax benefits subject to the tax receivable agreement, including tax benefits attributable to payments under the tax receivable agreement. The actual amount and utilization of the tax benefits subject to the tax receivable agreement, as well as the amount and timing of any payments under the tax receivable agreement, will vary depending upon a number of factors, including the amount, character and timing of our taxable income in the future. In addition, actual tax benefits realized by us may differ from the tax benefits calculated under the tax receivable agreement as a result of the use of certain assumptions in the tax receivable agreement, including the use of an assumed state and local income tax rate to calculate tax benefits. We expect that the payments that we may make under the tax receivable agreement will be material. The payments under the tax receivable agreement are not conditioned upon the continued ownership of us by the TRA Participants. With respect to certain pre-IPO owners that are not TRA Participants, we intend to make a cash distribution of approximately $ million to the Investor, which will be used in part to pay such pre-IPO owners for their interests in the sum of (i) the current fair market value of the tax receivable and (ii) the total cash distribution that will be made to such pre-IPO owners in lieu of their participation in the tax receivable agreement. A portion of the cash distribution associated with units of the Investor that are subject to vesting requirements will be held in escrow by the Company subject to similar vesting requirements as the shares of restricted stock received in exchange for such units. The cash distribution will be in addition to any payments we make under the tax receivable agreement and will not reduce the amounts we will otherwise be required to pay under the tax receivable tax receivable agreement.
In certain cases, payments under the tax receivable agreement may be accelerated and/or significantly exceed the actual cash savings we realize in respect of the tax benefits subject to the tax receivable agreement.
The tax receivable agreement provides that if we breach any of our material obligations under the tax receivable agreement, whether as a result of a failure to make any payment when due, failure to honor any other material obligation required thereunder or by operation of law as a result of the rejection of the tax receivable agreement in a case commenced under the federal bankruptcy laws or otherwise, upon the occurrence of certain bankruptcy or insolvency proceedings involving us, upon certain changes of control, or if, at any time, we elect an early termination of the tax receivable agreement, our obligations under the tax receivable agreement would be automatically accelerated and would be immediately due and payable, and such obligations would be calculated by reference to the value of all future payments that the TRA Participants
would have been entitled to receive under the tax receivable agreement using certain assumptions, including that we will have sufficient taxable income to fully utilize the net operating losses, credits, and certain other tax benefits subject to the tax receivable agreement. Our ability to fully utilize the net operating losses, credits, and certain other tax benefits subject to the tax receivable agreement will depend upon a number of factors, including the amount, character and timing of our taxable income in the future. In periods prior to the occurrence of a change of control and absent circumstances requiring an early termination payment, we are only obligated to make payments under the tax receivable agreement as and when we realize cash tax savings from the tax benefits subject to the tax receivable agreement (calculated using certain assumptions contained therein). Accordingly, we will generally not be required (absent a change of control, material breach, or circumstances requiring an early termination payment) to make payments under the tax receivable agreement for a taxable year in which we do not have taxable income because no cash tax savings will have been realized. In addition, recipients of payments under the tax receivable agreement will not reimburse us for any payments previously made under the tax receivable agreement if the tax attributes or our utilization of tax attributes underlying the relevant tax receivable agreement payment are successfully challenged by the Internal Revenue Service (“IRS”) (although any such detriment would be taken into account as an offset against future payments due to the relevant recipient under the tax receivable agreement). However, unutilized deductions that do not result in realized benefits in a given tax year as a result of insufficient taxable income may be applied to taxable income in future years and accordingly would impact the amount of cash tax savings in such future years and the amount of corresponding payments under the tax receivable agreement in such future years.
Accordingly, it is possible that the actual cash tax savings we realize may be significantly less than the corresponding tax receivable agreement payments. There may be a material negative effect on our liquidity if the payments under the tax receivable agreement exceed the actual cash tax savings that we realize in respect of the tax benefits subject to the tax receivable agreement. Based upon certain assumptions described in greater detail below under “Certain Relationships and Related Party Transactions — Tax Receivable Agreement,” we estimate that if we were to exercise our termination right immediately following this offering, the aggregate amount of these termination payments would be approximately $ million. The foregoing number is merely an estimate and the actual payments could differ materially. We may need to incur additional indebtedness to finance payments under the tax receivable agreement to the extent our cash resources are insufficient to meet our obligations under the tax receivable agreement as a result of timing discrepancies or otherwise, and these obligations could have the effect of delaying, deferring or preventing certain mergers, asset sales, other form of business combinations or other changes of control.
We are a holding company with no operations and rely on our operating subsidiaries to provide us with funds necessary to meet our financial obligations.
We are a holding company with no material direct operations. Our principal assets are the equity interests of Wirepath Home Systems, LLC (“Wirepath”) that we hold indirectly through our subsidiaries. Wirepath, together with its subsidiaries, owns substantially all of our operating assets. As a result, we are dependent on loans, dividends and other payments from our subsidiaries to generate the funds necessary to meet our financial obligations. Our subsidiaries are legally distinct from us and may be prohibited or restricted from paying dividends or otherwise making funds available to us, including restrictions under the covenants of the agreements governing our Credit Agreement. If we are unable to obtain funds from our subsidiaries, we may be unable to meet our financial obligations.
We currently do not intend to declare dividends on our common stock in the foreseeable future and, as a result, your only opportunity to achieve a return on your investment is if the price of our common stock appreciates.
We currently do not expect to declare any dividends on our common stock in the foreseeable future. Instead, we anticipate that all of our earnings in the foreseeable future will be used to provide working capital, to support our operations and to finance the growth and development of our business. Any determination to declare or pay dividends in the future will be at the discretion of our board of directors, subject to applicable laws and dependent upon a number of factors, including our earnings, capital requirements and overall financial condition. In addition, our ability to pay dividends on our common stock is currently limited by the covenants of our Credit Facilities and may be further restricted by the terms of any future debt or preferred securities. Accordingly, your only opportunity to achieve a return on your
investment in our company may be if the market price of our common stock appreciates and you sell your shares at a profit. The market price for our common stock may never exceed, and may fall below, the price that you pay for such common stock.
Future sales, or the perception of future sales, by us or our existing stockholders in the public market following this offering could cause the market price for our common stock to decline.
After this offering, the sale of shares of our common stock in the public market, or the perception that such sales could occur, could harm the prevailing market price of shares of our common stock. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate.
Upon consummation of this offering, we will have a total of shares of common stock outstanding. All shares sold in this offering will be freely tradable without restriction or further registration under the Securities Act, except for any shares held by our affiliates, as that term is defined under Rule 144 of the Securities Act (“Rule 144”), including our directors, executive officers and other affiliates, which may be sold only in compliance with the limitations described in “Shares Eligible for Future Sale,” and any shares purchased in our directed share program which are subject to the lock-up agreements described in “Underwriting.”
The shares held by our directors, officers, employees and affiliates immediately following the consummation of this offering (or if the underwriters exercise in full their option to purchase additional shares) will represent approximately % of our total outstanding shares of common stock following this offering (or % if the underwriters exercise in full their option to purchase additional shares and in either case do not include any shares that may be purchased by these holders through our directed share program), based on the number of shares outstanding as of , 2021. Such shares will be “restricted securities” within the meaning of Rule 144 and subject to certain restrictions on resale following the consummation of this offering. Restricted securities may be sold in the public market only if they are registered under the Securities Act or are sold pursuant to an exemption from registration such as Rule 144, as described in “Shares Eligible for Future Sale.”
In connection with this offering, we, our directors, executive officers and significant equityholders, have each agreed with the underwriters, subject to certain exceptions, not to dispose of or hedge any of our or their common stock or securities convertible into or exchangeable for shares of common stock during the period from the date of this prospectus continuing through the date 180 days after the date of this prospectus, except with the prior written consent of certain representatives of the underwriters. All remaining holders of common stock or securities convertible into or exchangeable for shares of common stock outstanding immediately prior to the consummation of this offering are subject to a market standoff agreement with us that restricts certain transfers of such securities for at least 180 days after the date of this prospectus. See “Underwriting” for a description of these lock-up agreements and market standoff agreements.
Upon the expiration of the contractual lock-up and market standoff agreements pertaining to this offering, an additional shares will be eligible for sale in the public market (or shares if the underwriters exercise in full their option to purchase additional shares), of which are held by directors, executive officers and other affiliates and will be subject to volume, manner of sale and other limitations under Rule 144 (or if the underwriters exercise in full their option to purchase additional shares), excluding, in each case, shares of restricted stock that are unvested as of the date of this prospectus. Following completion of this offering, shares covered by registration rights would represent approximately % of our outstanding common stock (or %, if the underwriters exercise in full their option to purchase additional shares). Registration of any of these outstanding shares of common stock would result in such shares becoming freely tradable without compliance with Rule 144 upon effectiveness of the registration statement. See “Shares Eligible for Future Sale.”
As restrictions on resale end or if these stockholders exercise their registration rights, the market price of our shares of common stock could drop significantly if the holders of these shares sell them or are perceived by the market as intending to sell them. These factors could also make it more difficult for us to raise additional funds through future offerings of our shares of common stock or other securities.
In addition, the shares of our common stock reserved for future issuance under the 2017 Incentive Plan, the 2021 Incentive Plan and the 2021 Employee Stock Purchase Plan will become eligible for sale in the public market once those shares are issued, subject to provisions relating to various vesting agreements, lock-up agreements and Rule 144, as applicable. A total of and shares of common stock have been reserved for future issuance under the 2021 Incentive Plan and the 2021 Employee Stock Purchase Plan, respectively.
Provisions in our organizational documents and stockholders agreement could delay or prevent a change of control.
Certain provisions of our amended and restated certificate of incorporation, amended and restated bylaws and amended and restated stockholders agreement may have the effect of delaying or preventing a merger, acquisition, tender offer, takeover attempt or other change of control transaction that a stockholder might consider to be in its best interest, including attempts that might result in a premium over the market price of our common stock.
These provisions provide for, among other things:
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the division of our board of directors into three classes, as nearly equal in size as possible, with directors in each class serving three-year terms and with terms of the directors of only one class expiring in any given year;
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that at any time when Hellman & Friedman and certain of its affiliates beneficially own, in the aggregate, less than 40% in voting power of the stock of our company entitled to vote generally in the election of directors, directors may only be removed for cause, and only by the affirmative vote of the holders of at least two-thirds in voting power of all the then-outstanding shares of stock entitled to vote thereon, voting together as a single class;
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the ability of our board of directors to issue one or more series of preferred stock with voting or other rights or preferences that could have the effect of impeding the success of an attempt to acquire us or otherwise effect a change of control;
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advance notice for nominations of directors by stockholders and for stockholders to include matters to be considered at stockholder meetings;
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the right of Hellman & Friedman and certain of its affiliates to nominate the majority of the members of our board of directors and the obligation of certain of our other pre-IPO stockholders to support such nominees;
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certain limitations on convening special stockholder meetings; and
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that certain provisions of our amended and restated certificate of incorporation and amended and restated bylaws may be amended only by the affirmative vote of the holders of at least two-thirds in voting power of all the then-outstanding shares of our stock entitled to vote thereon, voting together as a single class, if Hellman & Friedman certain of its affiliates beneficially own, in the aggregate, less than 40% in voting power of our stock entitled to vote generally in the election of directors.
These provisions could make it more difficult for a third-party to acquire us, even if the third-party’s offer may be considered beneficial by many of our stockholders. As a result, our stockholders may be limited in their ability to obtain a premium for their shares. See “Description of Capital Stock.”
We are an “emerging growth company” and the reduced disclosure requirements applicable to emerging growth companies may make our common stock less attractive to investors.
We are an “emerging growth company,” as defined in the JOBS Act. We will remain an emerging growth company until the earliest to occur of: the last day of the fiscal year in which we have more than $1.07 billion in annual revenue; the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates; the issuance, in any three-year period, by us of more than $1.0 billion in non-convertible debt securities; or the last day of the fiscal year ending after the fifth anniversary of our initial public offering. For so long as we remain an emerging growth company, we are permitted by SEC
rules and plan to rely on exemptions from certain disclosure requirements that are applicable to other SEC-registered public companies that are not emerging growth companies. These exemptions include not being required to comply with the requirement for an auditor attestation of the effectiveness of our internal control over financial reporting under Section 404 of the Sarbanes-Oxley Act (“SOX”), not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements, reduced disclosure obligations regarding executive compensation and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. As a result, the information we provide stockholders will be different than the information that is available with respect to other public companies. In this prospectus, we have not included all of the executive compensation related information that would be required if we were not an emerging growth company. We cannot predict whether investors will find our common stock less attractive if we rely on these exemptions.
If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile.
In addition, an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. This allows an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to avail ourselves of this exemption from new or revised accounting standards and, therefore, we will not be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies. As a result, our financial statements may not be comparable to companies that comply with new or revised accounting pronouncements as of public company effective dates.
Our management team will be required to evaluate the effectiveness of our internal control over financial reporting. If we are unable to maintain effective internal control over financial reporting, investors may lose confidence in the accuracy of our financial reports.
As a privately-held company, we were not required to evaluate our internal control over financial reporting in a manner that meets the standards of publicly traded companies required by Section 404(a) of the Sarbanes-Oxley Act, or Section 404. As a public company, we will be required to maintain internal control over financial reporting and to report any material weaknesses in such internal control. Section 404 of the Sarbanes-Oxley Act requires that we evaluate and determine the effectiveness of our internal control over financial reporting.
When evaluating our internal control over financial reporting, we have in the past and may in the future identify material weaknesses that we may not be able to remediate in time to meet the applicable deadline imposed upon us for compliance with the requirements of Section 404. If we identify any material weaknesses in our internal control over financial reporting or are unable to comply with the requirements of Section 404 in a timely manner or assert that our internal control over financial reporting is ineffective, or if our independent registered public accounting firm is unable to express an opinion as to the effectiveness of our internal control over financial reporting, we could fail to meet our reporting obligations or be required to restate our financial statements for prior periods.
In addition, our internal control over financial reporting will not prevent or detect all errors and fraud. Because of the inherent limitations in all control systems, no evaluation can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud will be detected.
If there are material weaknesses or failures in our ability to meet any of the requirements related to the maintenance and reporting of our internal control, investors may lose confidence in the accuracy and completeness of our financial reports and that could cause the price of our common stock to decline. In addition, we could become subject to investigations by the applicable stock exchange, the SEC or other regulatory authorities, which could require additional management attention and which could adversely affect our reputation and business.
We have identified a material weakness in our internal controls over financial reporting and if our remediation of such material weakness is not effective, or if we fail to develop and maintain an effective system of disclosure controls and internal controls over financial reporting, our ability to produce timely and accurate financial statements or comply with applicable laws and regulations could be impaired.
Recently, in connection with the preparation of our consolidated financial statements as of December 25, 2020 and for the year then ended, we identified a material weakness in our internal controls over financial reporting. A material weakness is a deficiency, or combination of deficiencies, in internal controls over financial reporting, such that there is a reasonable possibility that a material misstatement of the annual or interim financial statements will not be prevented or detected on a timely basis. We did not design or maintain an effective control environment over certain information technology (“IT”) general controls or information systems and applications that are relevant to the preparation of our consolidated financial statements. Specifically, we did not design and maintain (i) program change management controls to ensure that IT program and data changes affecting financial IT applications and underlying accounting records that are relevant to the preparation of our financial statements are identified, tested, authorized and implemented appropriately, and (ii) access controls to ensure access to programs and data is authorized and entitlements and privileges are recertified on a periodic basis to validate that only authorized individuals have access to the company’s data.
These IT deficiencies, when aggregated, could impact effective segregation of duties as well as the effectiveness of IT-dependent controls. None of the control deficiencies described above resulted in the identification of a material misstatement to our annual or interim consolidated financial statements. However, the deficiencies described above could result in a misstatement of one or more account balances or disclosures potentially leading to a material misstatement to our annual or interim consolidated financial statements which may not be prevented or timely detected and, accordingly, management determined that these control deficiencies constitute a material weakness.
To address this material weakness, we have hired personnel with public company experience and engaged an external advisor to assist with evaluating and documenting the design and operating effectiveness of our internal controls over financial reporting and assisting with the remediation of deficiencies, including implementing new controls and processes. We intend to continue to take steps to remediate the material weakness described above through additional measures that include hiring additional personnel with public company experience, and further evolving our accounting and business processes related to internal controls over financial reporting, including a plan for future system enhancements. We will not be able to fully remediate this material weakness until these steps have been completed and have been operating effectively for a sufficient period of time.
Furthermore, we cannot assure you that the measures we have taken to date, and actions we may take in the future, will be sufficient to remediate the control deficiencies that led to this material weakness in our internal controls over financial reporting or that they will prevent or avoid potential future material weaknesses. Our current controls and any new controls that we develop may become inadequate because of changes in conditions in our business. Further, weaknesses in our disclosure controls and internal controls over financial reporting may be discovered in the future. Any failure to develop or maintain effective controls or any difficulties encountered in their implementation or improvement could harm our operating results or cause us to fail to meet our reporting obligations and may result in a restatement of our annual or interim financial statements.
Neither our management nor our independent registered public accounting firm has performed an evaluation of our internal controls over financial reporting in accordance with the SEC rules because no such evaluation has been required. Our independent registered public accounting firm is not expected to formally attest to the effectiveness of our internal controls over financial reporting until at least the filing of our second Annual Report on Form 10-K following this offering. At such time, our independent registered public accounting firm may issue a report that is adverse in the event it is not satisfied with the level at which our internal controls over financial reporting is documented, designed, or operating. Any failure to implement and maintain effective internal controls over financial reporting also could adversely affect the results of periodic management evaluations and annual independent registered public accounting firm attestation reports regarding the effectiveness of our internal controls over financial reporting that we will eventually be required to include in our periodic reports that are filed with the SEC. Ineffective disclosure
controls and procedures and internal controls over financial reporting could also cause investors to lose confidence in our reported financial and other information, which would likely have a negative effect on the trading price of our common stock. In addition, if we are unable to continue to meet these requirements, we may not be able to remain listed on the Nasdaq.
Our amended and restated certificate of incorporation will provide, subject to limited exceptions, that the Court of Chancery of the State of Delaware and, to the extent enforceable, the federal district courts of the United States of America will be the sole and exclusive forums for certain stockholder litigation matters, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.
Our amended and restated certificate of incorporation will provide, subject to limited exceptions, that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for any (i) derivative action or proceeding brought on behalf of our company, (ii) action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of our company to the Company or our stockholders, (iii) action asserting a claim against the Company or any director, officer or other employee of the Company arising pursuant to any provision of the Delaware General Corporation Law, (the “DGCL”), or our amended and restated certificate of incorporation or our amended and restated bylaws or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware or (iv) action asserting a claim against the Company or any director, officer or other employee of the Company governed by the internal affairs doctrine. These provisions shall not apply to suits brought to enforce a duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction and our stockholders cannot waive compliance with federal securities laws and the rules and regulations thereunder. Unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act, subject to and contingent upon a final adjudication in the State of Delaware of the enforceability of such exclusive forum provision. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock shall be deemed to have notice of and consented to the forum provisions in our amended and restated bylaws.
These choice of forum provisions may limit a stockholder’s ability to bring a claim in a different judicial forum, including one that it may find favorable or convenient for disputes with us or any of our directors, officers or other employees which may discourage lawsuits with respect to such claims. Alternatively, if a court were to find the choice of forum provisions that will be contained in our amended and restated certificate of incorporation to be inapplicable or unenforceable with respect to one or more of the specified types of actions or proceedings, we may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business, operating results and financial condition. For example, the Court of Chancery of the State of Delaware recently determined that a provision stating that U.S. federal district courts are the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act is not enforceable. However, this decision may be reviewed and ultimately overturned by the Supreme Court of the State of Delaware.
Our board of directors will be authorized to issue and designate shares of our preferred stock in additional series without stockholder approval.
Our certificate of incorporation will authorize our board of directors, without the approval of our stockholders, to issue shares of our preferred stock, subject to limitations prescribed by applicable law, rules and regulations and the provisions of our certificate of incorporation, as shares of preferred stock in series, to establish from time to time the number of shares to be included in each such series and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof. The powers, preferences and rights of these additional series of preferred stock may be senior to or on parity with our common stock, which may reduce its value.
We may invest or spend the proceeds of this offering in ways with which you may not agree or in ways which may not yield a return.
A portion of the net proceeds from this offering may be used for general corporate purposes, including working capital. We may also use a portion of the net proceeds to acquire complementary businesses,
products, services or technologies. Our management will have considerable discretion in the application of the net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. The net proceeds may be invested with a view towards long-term benefits for our stockholders and this may not increase our operating results or market value. The failure by our management to apply these funds effectively may adversely affect the return on your investment.
General Risks
Our business, results of operations and financial condition have been adversely affected and could in the future be adversely affected by the COVID-19 pandemic.
The COVID-19 pandemic has negatively impacted the global economy and global supply chains, and created significant disruption of global financial markets. Governments, public institutions and other organizations in many countries and localities where COVID-19 has been detected have taken certain emergency measures and may from time to time take additional emergency measures, to combat its spread, including imposing lockdowns, shelter-in-place orders, quarantines, restrictions on travel and gatherings and the extended shutdown of non-essential businesses that cannot be conducted remotely. These emergency measures remain in place to varying degrees. While the potential economic impact brought by, and the duration of, the COVID-19 pandemic is difficult to assess or predict, it has and may continue to:
•
disrupt our hardware supply chain;
•
disrupt our ability to conduct product development activities and other activities necessary to improve products and bring new products to market;
•
disrupt and restrict our integrators’ ability to travel and to meet with residential and commercial end consumers who use our solutions;
•
cause cancellations or postponement of certain events; and
•
cause temporary closures of our facilities, including manufacturing centers and critical product distribution locations, or the facilities of our service providers or suppliers.
The COVID-19 pandemic has also resulted in significant disruption of global financial markets, which may reduce our ability to access capital and which could negatively affect our liquidity in the future. This economic and financial uncertainty may also negatively impact pricing for our platform or cause end consumers to reduce or postpone purchasing our solutions, which may, in turn, negatively affect our net sales, cash flows, results of operations and financial condition. The increased uncertainty and disruption to global markets may also negatively impact our growth opportunities whether organically or through acquisitions.
The uncertainty caused by and the unprecedented nature of the current COVID-19 pandemic make the potential impact of the pandemic difficult to predict and the extent to which it may negatively affect our industry, our supply of hardware products, our business operations or our operating results is uncertain. Weak global economic conditions, additional business disruptions or closures and spikes or surges in COVID-19 infection, also may exacerbate the impact of the pandemic. Further, we do not yet know the full effects of the COVID-19 pandemic on our suppliers and service providers. However, if the economy fails to fully recover or there is another shutdown of non-essential businesses due to a resurgence of COVID-19, we anticipate that our net sales growth rate may be lower in future periods if some end consumers defer or cancel previously anticipated purchases, with a corresponding reduction in hardware net sales, or if demand for home-based solutions decreases as a result of the lifting of COVID-19 related restrictions.
The ultimate impact to our results will depend to a large extent on currently unknowable developments, including the length of time the disruption and uncertainty caused by COVID-19 will continue, which will, in turn, depend on, among other things, the actions taken by authorities and other entities to contain COVID-19 or treat its impact, including the impact of any re-opening plans, additional closures and spikes or surges in COVID-19 infection, and individuals’ and companies’ risk tolerance regarding health matters going forward, all of which are beyond our control. These potential impacts, while uncertain, could harm our business and adversely affect our operating results. In addition, to the extent the ongoing COVID-19 pandemic adversely affects our business and results of operations, it may also have the effect of heightening
many of the other risks and uncertainties described in this “Risk Factors” section which may have a material adverse effect on our business, results of operations and financial condition.
Risks associated with our labor force could have a significant adverse effect on our business.
We had approximately 1,302 employees as of March 26, 2021. Various national, federal and state labor laws govern our relationships with our employees and affect our operating costs. These laws include employee classifications as exempt or non-exempt, minimum wage requirements, unemployment tax rates, workers’ compensation rates, overtime, family leave, anti-discrimination laws, safety standards, payroll taxes, employment agreements, citizenship requirements and other wage and benefit requirements for employees classified as non-exempt. As our employees may be paid at rates that relate to the applicable minimum wage, further increases in the minimum wage could increase our labor costs. Employees may make claims against us under national, federal, or state laws, which could result in significant costs. Significant additional government regulations could materially affect our business, financial condition and results of operations.
None of our U.S. employees is currently covered by collective bargaining or other similar labor agreements. However, if a large number of our U.S. employees were to unionize, including in the wake of any future legislation that makes it easier for employees to unionize, our business could be negatively affected. Any inability by us to negotiate collective bargaining arrangements could cause strikes or other work stoppages, and new contracts could result in increased operating costs. If any such strikes or other work stoppages occur, or if other employees become represented by a union, we could experience a disruption of our operations and higher labor costs.
In addition, certain of our suppliers and logistics providers may have unionized work forces. Strikes, work stoppages or slowdowns could result in slowdowns or closures of facilities where the products that we sell are manufactured or could affect the ability of our suppliers to deliver such products to us. Any interruption in the production or delivery of these products could delay or reduce availability of these products and increase our costs.
Given the complex nature of the technology on which our business is based and the speed with which such technology advances, our future success is dependent, in large part, upon our ability to attract and retain highly qualified executive, managerial, engineering, operations, and sales and marketing personnel. Competition for talented personnel is intense, and we cannot be certain that we can retain our executive, managerial, engineering, operations, and sales and marketing personnel, or that we can attract, assimilate or retain such personnel in the future. Our inability to attract and retain such personnel may have a material adverse effect on our business, results of operations and financial condition.
Increases in operating costs could adversely impact our business, financial position, results of operations and cash flows.
Our financial performance is affected by the level of our operating expenses, such as wages and salaries, leases of distribution centers and sales and marketing offices, advertising and marketing, employee benefits, health care, insurance premiums, as well as various regulatory compliance costs, all of which may be subject to inflationary pressures. In particular, our financial performance is adversely affected by increases in these operating costs.
Our business is subject to the risks of earthquakes, hurricanes, fire, power outages, floods and other catastrophic events, and to interruption by man-made problems such as political unrest, information systems compromise, riots and terrorism.
A significant natural disaster, such as an earthquake, hurricane, fire or a flood, or a significant power outage could harm our business, results of operations and financial condition. Natural disasters could affect our manufacturing vendors’ or logistics providers’ ability to perform services such as manufacturing products or assisting with shipments on a timely basis. In the event our manufacturing vendors’ information technology systems or manufacturing or logistics abilities are hindered by any of the events discussed above, shipments could be delayed or cancelled, adversely affecting product deliveries, net sales and profitability, integrator and customer satisfaction, and our competitive standing. Further, if a natural disaster occurs in a region from which we derive a significant portion of our net sales, such as metropolitan areas
in North America, end consumers in those regions may delay or forego purchases of our solutions from integrators, which may harm our results of operations for a particular period. In addition, acts of terrorism, including cyber terrorism or crime, acts of war, financial crises, trade friction or geopolitical and social turmoil in those parts of the world that serve as markets for our solutions, could cause disruptions in our business or the business of our manufacturers, logistics providers, integrators or the economy as a whole. These uncertainties may cause our end consumers to reduce discretionary spending and make it difficult for us to accurately plan future business activities. Given our typical concentration of sales at the end of each month and quarter, any disruption in the business of our manufacturers, logistics providers, integrators, and end consumers that impacts sales at the end of our quarter could have a greater impact on our quarterly results. All of the aforementioned risks may be augmented if the disaster recovery plans for us and our suppliers and integrators prove to be inadequate. To the extent that any of the above results in delays or cancellations of orders, or delays in, or cancellations of the manufacture, deployment or shipment of our products, it may have a material adverse effect on our business, results of operations and financial condition.
We will incur increased costs as a result of operating as a publicly traded company, and our management will be required to devote substantial time to new compliance initiatives.
As a publicly traded company, and particularly after we are no longer an emerging growth company, we will incur additional legal, accounting and other expenses that we did not previously incur. Although we are currently unable to estimate these costs with any degree of certainty, they may be material in amount. In addition, SOX, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the rules of the SEC, and the stock exchange on which our common shares are listed, have imposed various requirements on public companies. Our management and other personnel will need to devote a substantial amount of time to these compliance initiatives as well as investor relations. Moreover, these rules and regulations will increase our legal and financial compliance costs and will make some activities more time-consuming and costly. For example, we expect these rules and regulations to make it more difficult and more expensive for us to obtain director and officer liability insurance, and we may be required to incur additional costs to maintain the same or similar coverage.
If securities or industry analysts do not publish research or reports about our business, or publish negative reports about our business, our share price and trading volume could decline.
The trading market for our common stock depends in part on the research and reports that securities or industry analysts publish about our business. We do not have any control over these analysts, activist investors, or those who short our stock. If one or more of the foregoing analysts who cover us, activist investors, or those who short our stock downgrade our shares, change their opinion of our shares, or publish negative or false reports for their own purposes, our share price will likely decline. If one or more of these analysts cease coverage of our company or fail to regularly publish research or reports on us, we could lose visibility in the financial markets, which could cause our stock price or trading volume to decline.
Future acquisitions of technologies, assets or businesses that are paid for partially or entirely through the issuance of stock or stock rights could dilute the ownership of our existing stockholders.
We expect that the consideration we might pay for any future acquisitions of technologies, assets or businesses could include stock, rights to purchase stock, cash or some combination of the foregoing. If we issue stock or rights to purchase stock in connection with such future acquisitions, net income (loss) per share and then-existing holders of our common stock may experience dilution.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statements made in this prospectus that are not statements of historical fact, including statements about our beliefs and expectations, are forward-looking statements, and should be evaluated as such. Forward-looking statements include information concerning possible or assumed future results of operations, including descriptions of our business plan and strategies. These statements often include words such as “anticipate,” “expect,” “suggest,” “plan,” “believe,” “intend,” “project,” “forecast,” “estimates,” “targets,” “projections,” “should,” “could,” “would,” “may,” “might,” “will,” and other similar expressions. These forward-looking statements are contained throughout this prospectus, including the “Prospectus Summary,” “Risk Factors,” “Capitalization,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business.”
We base these forward-looking statements on our current expectations, plans and assumptions, which we have made in light of our experience in the industry, as well as our perceptions of historical trends, current conditions, expected future developments and other factors we believe are appropriate under the circumstances and at this time. As you read and consider this prospectus, you should understand that these statements are not guarantees of performance or results. The forward-looking statements contained herein are subject to and involve risks, uncertainties and assumptions, and therefore you should not place undue reliance on these forward-looking statements or projections. Although we believe that these forward-looking statements and projections are based on reasonable assumptions at the time they are made, you should be aware that many factors could affect our actual financial results, and therefore actual results might differ materially from those expressed in the forward-looking statements and projections. Factors that might materially affect such forward-looking statements include:
•
Risks Related to Our Business and Industry;
•
Risks Related to Our Products;
•
Risks Related to Our Manufacturing and Supply Chain;
•
Risks Related to Our Distribution Channels;
•
Risks Related to Laws and Regulations;
•
Risks Related to Cybersecurity and Privacy;
•
Risks Related to Intellectual Property;
•
Risks Related to Our International Operations;
•
Risks Related to Our Indebtedness;
•
Risks Related to Our Financial Statements;
•
Risks Related to this Offering and Our Common Stock; and
•
the other factors discussed under “Risk Factors.”
The preceding list is not intended to be an exhaustive list of all of our forward-looking statements. The forward-looking statements are based on our beliefs, assumptions and expectations of future performance, taking into account the information currently available to us. These statements are only predictions based upon our current expectations about future events. There are important factors that could cause our actual results, level of activity, performance or achievements to differ materially from the results, level of activity, performance or achievements expressed or implied by the forward-looking statements. Other sections of this prospectus may include additional factors that could adversely impact our business and financial performance. Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time and it is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. Before investing in our common stock, investors should be aware that the occurrence of the events described under the caption “Risk Factors” and elsewhere in this prospectus could have a material adverse effect on our business, results of operations and future financial performance.
You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance and events and circumstances reflected in the forward-looking statements will be achieved or occur. Except as required by law, we undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus to conform these statements to actual results or to changes in our expectations.
USE OF PROCEEDS
We estimate that we will receive net proceeds of approximately $ million from the sale of shares of our common stock in this offering, based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us. If the underwriters exercise in full their option to purchase additional shares, the net proceeds to us will be approximately $ million.
We will not receive any proceeds from any exercise by the underwriters of their option to purchase additional shares from the selling stockholders. The selling stockholders will bear the underwriting commissions and discounts, if any, attributable to their sale of our common stock, and we will bear the remaining expenses. The selling stockholders will only sell shares in this offering if the underwriters exercise their option to purchase additional shares.
We intend to use the net proceeds from this offering to repay a portion of the term loan outstanding under our Credit Agreement totaling $ million, plus accrued interest thereon of approximately $ , and the remainder for general corporate purposes. To the extent we raise more proceeds in this offering than currently estimated, we will use such proceeds for general corporate purposes, which may include, among other things, further repayment of indebtedness. To the extent we raise less in this offering than currently estimated, we may, if necessary, reduce the amount of the indebtedness that will be repaid. For information about the applicable interest rates, maturity dates and use of proceeds of loans under our Credit Agreement, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity and Capital Resources — Credit Facilities.”
A $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, would increase (decrease) the net proceeds to us from this offering by $ million, assuming the number of shares offered by us, as set forth on the front cover of this prospectus, remains the same and after deducting the assumed underwriting discounts and commissions and estimated offering expenses payable by us. An increase (decrease) of 100,000 shares from the expected number of shares to be sold by us in this offering, assuming no change in the assumed initial public offering price per share, which is the midpoint of the price range set forth on the front cover of this prospectus, would increase (decrease) our net proceeds from this offering by $ million.
DIVIDEND POLICY
Except as provided below, currently we do not expect to declare any dividends on our common stock in the foreseeable future. Instead, we anticipate that all of our earnings in the foreseeable future will be used to provide working capital, to support our operations, to finance the growth and development of our business and to reduce our net debt. Any determination to declare dividends in the future will be at the discretion of our board of directors, subject to applicable laws, and will be dependent on a number of factors, including our earnings, capital requirements and overall financial condition. If we elect to pay dividends in the future, we may reduce or discontinue entirely the payment of such dividends at any time.
We expect to pay a cash dividend in the amount of approximately $ million to the Investor prior to the closing of this offering, the proceeds of which will be used to pay certain pre-IPO owners cash payments in lieu of their participation in the tax receivable agreement. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Contractual Obligations — Tax Receivable Agreement.”
Because we are a holding company, our ability to pay dividends depends on our receipt of cash dividends from our operating subsidiaries, which may further restrict our ability to pay dividends as a result of the laws of their jurisdiction of organization, agreements of our subsidiaries or covenants under any existing and future outstanding indebtedness we or our subsidiaries incur.
CAPITALIZATION
The following table sets forth our cash and cash equivalents and capitalization as of March 26, 2021:
•
on an actual basis; and
•
on an as adjusted basis, further giving effect to (i) the sale by us of shares of our common stock in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us and (ii) the application of the net proceeds received by us from this offering to repay a portion of the term loan outstanding under our Credit Agreement, plus accrued interest thereon, and the remainder for general corporate purposes, as described in “Use of Proceeds.”
You should read this table together with “Use of Proceeds,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and our consolidated financial statements and the related notes appearing elsewhere in this prospectus.
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As of March 26, 2021
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Actual
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|
|
As Adjusted
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|
|
|
|
|
(in thousands, except share and par value data)
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|
|
Cash and cash equivalents(1)
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|
|
|
$
|
48,943
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|
|
|
|
$
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|
|
|
|
Long-term debt, including current portion of long-term debt:
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|
|
|
|
|
|
|
|
|
|
|
|
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Revolving credit facility
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$
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—
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|
|
|
|
$
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|
|
|
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Term loans
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|
|
|
|
670,902
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|
|
|
|
|
|
|
|
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Unamortized debt issuance costs on term loans
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|
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(19,162)
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|
|
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|
|
|
|
|
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Unamortized debt issuance costs on revolver
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|
|
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(491)
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|
|
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Total debt
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|
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651,249
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|
|
|
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Stockholders’ Equity:
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Common stock, $0.001 par value, actual, $0.01 par value, as adjusted; 500,000 shares authorized, actual, 394,778 shares issued and outstanding, actual, shares authorized, as adjusted, shares issued and outstanding, as adjusted
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|
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|
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—
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Preferred stock, $0.01 par value; no shares authorized, actual, no shares issued and outstanding, actual, shares authorized, as adjusted, no shares issued and outstanding, as adjusted
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|
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—
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|
|
|
|
|
|
|
|
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Additional paid-in capital(2)
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|
|
|
|
660,745
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|
|
|
|
|
|
|
|
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Accumulated deficit(1)
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|
|
|
|
(49,032)
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|
|
|
|
|
|
|
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Accumulated other comprehensive income
|
|
|
|
|
704
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|
|
|
|
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|
|
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Company’s stockholders’ equity
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|
|
|
612,417
|
|
|
|
|
|
|
|
|
|
Noncontrolling interest
|
|
|
|
|
294
|
|
|
|
|
|
|
|
|
|
Total stockholders’ equity
|
|
|
|
|
612,711
|
|
|
|
|
|
|
|
|
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Total capitalization
|
|
|
|
$
|
1,263,960
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|
|
|
|
$
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|
|
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(1)
Cash and cash equivalents on an as adjusted basis is reduced as a result of the recognition of cash distributions made to pre-IPO owners in lieu of their participation in the tax receivable agreement (approximately $ million as of March 26, 2021). Distributions made to pre-IPO owners related to their vested Incentive Units as of the date of this offering will be recorded as an expense in the period the distributions are made and distributions related to their unvested Incentive Units as of the date of this offering will be recorded as an expense over the remaining estimated service period.
(2)
Additional paid-in capital on an as adjusted basis is reduced as a result of the recognition of the
liability equal to the total estimated payments (approximately $ million as of March 26, 2021) to be made under the tax receivable agreement.
A $1.00 increase or decrease in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, would increase or decrease, as applicable, on an as adjusted basis, additional paid-in capital, Company’s stockholders’ equity, total stockholders’ equity and total capitalization by $ million, assuming the number of shares offered by us, as set forth on the front cover of this prospectus, remains the same and after deducting assumed underwriting discounts and commissions and estimated offering expenses payable by us and the application of the net proceeds thereof as described in “Use of Proceeds.” An increase or decrease of 100,000 shares in the number of shares sold in this offering by us would increase or decrease, as applicable, on an as adjusted basis, additional paid-in capital, Company’s stockholders’ equity, total stockholders’ equity and total capitalization by $ million, assuming an initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us and the application of the net proceeds thereof as described in “Use of Proceeds.”
The number of shares of our common stock to be outstanding immediately after this offering is based on shares outstanding as of , 2021 (after giving effect to the for 1 forward stock split effected on , 2021) and:
•
assumes the issuance of shares of restricted common stock to be issued to holders of unvested Incentive Units in connection with the Equity Conversion (which amount of shares is based upon an assumed initial public offering price of $ per share which is the midpoint of the range set forth on the cover page of this prospectus); and
•
does not (i) reflect shares of common stock available for future issuance under our 2021 Incentive Plan, including (a) shares of common stock underlying the restricted stock units and (b) shares of common stock issuable upon the exercise of options with an exercise price equal to the initial offering price we expect to award to certain employees in connection with this offering, (ii) or shares of common stock available for future issuance under our 2021 Employee Stock Purchase Plan.
A $1.00 increase in the assumed initial public offering price referred to above shall (i) modify the number of shares of restricted common stock to be received by the holders of Incentive Units in connection with the Equity Conversion resulting in an increase to the number of shares of common stock to be outstanding immediately after this offering by shares, (ii) decrease the number of shares of common stock underlying the restricted stock units we expect to award in connection with this offering by shares and (iii) decrease the number of shares of common stock issuable upon exercise of the options we expect to award in connection with this offering by shares.
A $1.00 decrease in the assumed initial public offering price referred to above shall (i) modify the number of shares of restricted common stock to be received by the holders of Incentive Units in connection with the Equity Conversion resulting in a decrease to the number of shares of common stock to be outstanding immediately after this offering by shares, (ii) increase the number of shares of common stock underlying the restricted stock units we expect to award in connection with this offering by shares and (iii) increase the number of shares of common stock issuable upon exercise of the options we expect to award in connection with this offering by shares.
DILUTION
If you invest in our common stock in this offering, your ownership interest in us will be diluted to the extent of the difference between the initial public offering price per share of our common stock and the net tangible book value per share of our common stock as adjusted to give effect to this offering and the Equity Conversion. Dilution results from the fact that the per share offering price of the common stock is substantially in excess of the book value per share attributable to the shares of common stock held by existing stockholders.
Our net tangible book deficit as of March 26, 2021 was approximately $553.2 million or $ per share. We calculate net tangible book value per share by taking the amount of our total tangible assets, reduced by the amount of our total liabilities, and then dividing that amount by the total number of shares of common stock outstanding.
After giving effect to our sale of the shares in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us and after giving effect to the application of the net proceeds from this offering as described under “Use of Proceeds,” our net tangible book deficit as of March 26, 2021 as adjusted to give effect to this offering and the Equity Conversion would have been $ , or $ per share. This amount represents an immediate increase in net tangible book value of $ per share to existing stockholders and an immediate dilution in net tangible book value of $ per share to new investors purchasing shares in this offering at the initial public offering price.
The following table illustrates this dilution on a per share basis:
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Assumed initial public offering price per share
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$
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Net tangible book deficit per share as of March 26, 2021 before giving effect to this offering and the Equity Conversion
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$
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Increase in net tangible book value per share attributable to new investors purchasing shares in this offering
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Net tangible book deficit per share as adjusted to give effect to this offering
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Dilution per share to new investors in this offering
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$
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Dilution is determined by subtracting net tangible book value per share of common stock as adjusted to give effect to this offering and the Equity Conversion, from the initial public offering price per share of common stock.
Each $1.00 increase in the assumed initial public offering price of $ per share, the midpoint of the price range set forth on the cover page of this prospectus, would increase our as adjusted net tangible book value by approximately $ million, or approximately $ per share, and the dilution per share to investors in this offering by approximately $ per share, assuming that the number of shares offered by us, as set forth on the front cover of this prospectus, remains the same and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
Conversely, each $1.00 decrease in the assumed initial public offering price of $ per share, the midpoint of the price range set forth on the cover page of this prospectus, would decrease our as adjusted net tangible book value by approximately $ million, or approximately $ per share, and the dilution per share to investors in this offering by approximately $ per share, assuming that the number of shares offered by us, as set forth on the front cover of this prospectus, remains the same and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
We may also increase or decrease the number of shares we are offering. An increase of 100,000 shares in the number of shares offered by us would result in an as adjusted net tangible book value of approximately $ million, or approximately $ per share, and the dilution per share to investors in this offering would be approximately $ per share, assuming the assumed initial public offering price of $ per share remains the same and after deducting underwriting discounts and commissions and estimated offering expenses payable by us. Conversely, a decrease of 100,000 shares in the number of shares offered by us would result in an as adjusted net tangible book value of approximately $ million, or
approximately $ per share, and the dilution per share to investors in this offering would be approximately $ per share, assuming the assumed initial public offering price of $ per share, remains the same and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us. The as adjusted pro forma information discussed above is illustrative only and will adjust based on the actual initial public offering price and other terms of this offering.
If the underwriters exercise their option to purchase additional shares of our common stock in full in this offering, the as adjusted net tangible book value after the offering would be $ per share, the increase in net tangible book deficit per share to our existing investors would be $ and the dilution in net tangible book value per share to new investors would be $ per share, in each case assuming an initial public offering price of $ per share, which is the midpoint of the range listed on the cover page of this prospectus.
The following table summarizes, on an as adjusted basis as of March 26, 2021, as described above, the differences between the number of shares purchased from us, the total consideration paid to us, and the average price per share paid by existing stockholders and by new investors. As the table shows, new investors purchasing shares in this offering will pay an average price per share substantially higher than our existing stockholders paid. The table below is based on shares of common stock outstanding immediately after the Equity Conversion and the consummation of this offering and does not give effect to shares of common stock issuable upon exercise of outstanding options to purchase shares of our common stock outstanding as of , 2021 or the shares of common stock reserved for future issuance under the 2021 Incentive Plan. A total of shares of common stock have been reserved for future issuance under the 2021 Incentive Plan, and a total of shares of common stock have been reserved for future issuance under the 2021 Employee Stock Purchase Plan. The table below is based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, for shares purchased in this offering, assumes the issuance of shares of restricted common stock to be issued to the holders of unvested Incentive Units in connection with the Equity Conversion and excludes underwriting discounts and commissions and estimated offering expenses payable by us:
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Shares Purchased
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|
|
Total Consideration
|
|
|
Average
Price Per
Share
|
|
|
|
|
|
|
Number
(in thousands)
|
|
|
Percent
|
|
|
Amount
(in thousands)
|
|
|
Percent
|
|
|
|
Existing Stockholders
|
|
|
|
|
|
|
|
|
|
|
%
|
|
|
|
|
$
|
|
|
|
|
|
|
%
|
|
|
|
|
$
|
|
|
|
|
|
New Investors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
100.0%
|
|
|
|
|
$
|
|
|
|
|
|
|
100.0%
|
|
|
|
|
|
|
|
|
|
|
|
Sales of shares of our common stock by the selling stockholders in this offering will reduce the number of shares of common stock held by existing stockholders to , or approximately % of the total shares of common stock outstanding after the completion of this offering, and will increase the number of shares held by investors purchasing shares in this offering to , or approximately % of the total shares of common stock outstanding after the completion of this offering. The selling stockholders will only sell shares of common stock in this offering if the underwriters exercise their option to purchase additional shares.
If the underwriters were to fully exercise the underwriters’ option to purchase additional shares of our common stock from us and the selling stockholders, the percentage of shares of our common stock held by existing stockholders would be approximately % of the aggregate number of shares of common stock outstanding after this offering after giving effect to sales by the selling stockholders, and the percentage of shares of our common stock held by new investors would be % of the aggregate number of shares of common stock outstanding after this offering after giving effect to sales by the selling stockholders.
Assuming the number of shares offered by us, as set forth on the front cover of this prospectus, remains the same, excluding assumed underwriting discounts and commissions and estimated offering expenses payable by us, a $1.00 increase or decrease in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus, would increase or decrease total consideration paid by new investors and total consideration paid by all stockholders by approximately $ million.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and the related notes thereto included elsewhere in this prospectus. The statements in this discussion regarding industry outlook, our expectations regarding our future performance, liquidity and capital resources and all other non-historical statements in this discussion are forward-looking statements and are based on the beliefs of our management, as well as assumptions made by, and information currently available to, our management. Actual results could differ materially from those discussed in or implied by forward-looking statements as a result of various factors, including those discussed below and elsewhere in this prospectus, particularly in “Risk Factors” or in other sections of this prospectus.
We operate on a 52-week or 53-week fiscal year ending on the last Friday of December each year. Our fiscal year is divided into four quarters of 13 weeks, each beginning on a Saturday and containing one 5-week period followed by two 4-week periods. When a 53-week fiscal year occurs, we report the additional week in the fourth fiscal quarter. References to fiscal year 2020 are to our 52-week fiscal year ended December 25, 2020 and references to fiscal year 2019 are to our 52-week fiscal year ended December 27, 2019. The fiscal quarters ended March 26, 2021 and March 27, 2020 were both 13-week periods.
Overview
Snap One powers smart living by enabling professional integrators to deliver seamless experiences in the connected homes and small businesses where people live, work and play. The combination of our end-to-end product ecosystem and our technology-enabled workflow solutions, which we refer to as our “Only Here” strategy, delivers a compelling value proposition to our loyal and growing network of over 16,000 professional do-it-for-me (“DIFM”) integrators. We believe that Only Here can integrators access a leading, comprehensive suite of products and software solutions that enable a “one-stop shop” experience. Only Here can integrators support their customers via our industry-leading remote management software platform, which reaches approximately 345,000 active homes and businesses as of March 26, 2021. Only Here can integrators enjoy the convenience of an e-commerce centric, omni-channel offering to support their workflow. Only Here can our third-party product partners efficiently access our expansive integrator network and connect with the broader Snap One product and software ecosystem. By partnering with Snap One, integrators can focus on their trade and leverage the tools and infrastructure that we deliver to build thriving and profitable businesses. We believe our Only Here value proposition becomes embedded into integrators’ workflow throughout the project lifecycle, creating re-occurring spending patterns that strengthen our integrator relationships and enhance our revenue visibility from our integrator base. Snap One was founded by integrators for integrators and we believe our Only Here experience makes us integrators’ partner of choice.
We derive the majority of our net sales from the sale of both proprietary and third-party products to DIFM integrators in home technology, security and commercial end markets. Our comprehensive suite of solutions allows integrators to find everything they need in one place and to deliver high-quality, reliable and configurable systems to end consumers. We also have two subscription-based services that we monetize with end consumers. Parasol is enabled by our OvrC software and is a subscription-based service that gives homeowners and small businesses access to a continuous remote support service to troubleshoot devices on their network. 4Sight, our remote system management software for end consumers, is enabled by our Control4 software and is a subscription sold to homeowners and small businesses. While it accounts for a smaller share of our current net sales, we intend to continue to invest in the expansion of existing subscription-based services and the development of new ones.
We are vertically integrated with approximately 70% of net sales in fiscal year 2020 coming from our proprietary-branded, internally developed products that are only available to integrators directly from Snap One. These proprietary products are manufactured on an asset-light basis through our network of contract manufacturing and joint development suppliers located primarily in Asia and support our strong net sales of $814.1 million and Contribution Margin of 41.7%, in each case during fiscal year 2020. In addition, we are strategically expanding our third-party product offering to enhance the one-stop shop experience for integrators, driving customer stickiness and sales growth. Our third-party products have lower margins than our proprietary products and our future profitability may be affected by our sales mix over time.
Recent Developments
On May 28, 2021, we completed the acquisition of ANLA, Inc. (“Access Networks”), an enterprise-grade networking solutions provider offering network design, configuration, monitoring and support services and products. We expect that the acquisition will enhance our networking solutions for residential and commercial networks. Under the purchase agreement, we agreed to a purchase price of $38.1 million, consisting of both cash and equity, plus contingent consideration of up to $2.0 million based upon the achievement of specified financial targets.
Key Factors Affecting Our Performance
Our historical financial performance has been primarily driven by the following factors, which we also expect to be the primary drivers of our financial performance in the future.
Grow Wallet Share with Integrators. While our network of over 16,000 domestic DIFM integrators that we transact with is large, we believe we have a significant wallet share expansion opportunity with our existing integrator base. Across our entire base of domestic integrators, we capture on average approximately $40,000 of annual spend and those integrators purchase on average approximately eight different product categories from us. Over time, we typically grow integrators’ wallet share with us, as exemplified by the top ten percent of our domestic integrators spending on average approximately $240,000 annually across approximately 17 different product categories with us. This is compared with Frost & Sullivan’s estimate of over $600,000 in average annual product spend for all domestic integrators. This suggests we have significant room to grow sales by increasing wallet share with all of our existing integrators. Average wallet share with our integrators varies across DIFM markets, with particular strength in home technology and demonstrated success in commercial and security. In a survey conducted by Frost & Sullivan, integrators indicated that on average they purchase products from twelve sources, and approximately 20% of respondents indicated that Snap One was their most used source for installation equipment from March 2020 to March 2021 (more than twice the share of the next highest source). As we continue to expand our omni-channel coverage, extend our product suite, bolster our support services, and create deeper integration across our products, we believe we will be able to drive continued wallet share gains by making it compelling for integrators to use Snap One as their one-stop shop.
We believe our strong position with integrators is supported by our world class industry-leading NPS of 55 among domestic integrators who have purchased from Snap One between March 2020 and March 2021, as compared to competing brands’ average NPS of -2. In addition to a strong position with our integrators as evidenced by our NPS, approximately 75% of our fiscal year 2020 e-commerce portal net sales came from integrators who have been our customers for at least five years (as represented by integrators whose first purchase was made in fiscal year 2015 or prior).
Add New DIFM Integrators in Home Technology, Security, Commercial and Internationally. We are a market leader in our core domestic home technology market and our product portfolio and integrator support is designed to expand into attractive adjacent markets. We are utilizing our scale to make strategic investments focused on growing our network of integrators across home technology and the attractive security and commercial markets. We currently have an established presence in these markets with a track record of growth, and we believe we have a significant opportunity for future penetration. Today, we believe we transact with over 20% of addressable domestic integrators across the home technology, security, and commercial markets. We believe our differentiated value proposition will continue to attract new integrators to the Snap One integrated platform.
We also believe there is a meaningful opportunity to capture market share in non-U.S. markets. We expanded internationally with our acquisition of Control4 Corporation (“Control4”) in August 2019, and international net sales accounted for 11.6% and 12.0% of our net sales in fiscal year 2020 and the fiscal quarter ended March 26, 2021. Our international growth strategy is focused on expanding primarily in selected principally English-speaking markets, which could include Canada, the U.K., Australia and New Zealand. We plan to grow in these markets by investing in sales resources, broadening our available product portfolio, and strengthening our direct-to-integrator sales approach.
Continue to Invest in Our Integrated Platform. Our end-to-end product and software ecosystem and technology-enabled workflow solutions create an integrated platform of leading offerings, which we believe
drives significant value for our integrators and personalized, immersive experiences for end consumers. We have a proven track record of innovation through significant investments in research and development (“R&D”) to build and enhance our integrated platform over time. Our close relationship with our integrator base enables us to more effectively identify and enter attractive, high growth market segments and to continually enhance our products and software to deliver the best solutions for end consumers. We also leverage these relationships to introduce new and enhanced technology-enabled workflow solutions. These new and enhanced support services are designed to make it easier for our integrators to operate their businesses, creating a more efficient industry and stronger growth for Snap One.
Enhance Our Omni-Channel Strategy. Our business model is built around an e-commerce centric, omni-channel go-to-market strategy. We provide a comprehensive e-commerce portal, which allows integrators to easily research products, design projects, receive training and certifications, order products, and solicit ongoing support. Our e-commerce portal is complemented by an extensive network of 26 local branches and seven distribution centers, as of March 26, 2021. For the twelve-month period ending March 26, 2021, we opened or acquired five net new local branches, and we expect to continue to expand our local branch presence in the future. The local branch presence is an important part of our strategy as it allows us to better serve integrators locally by providing same day product availability when necessary, creating a site for relationship building with our support team and for training and product demonstration sessions. We believe integrators value the relationships and support we can deliver at the local level, and this further increases their loyalty with our business across channels.
Execute Strategic Acquisitions. In addition to our organic growth, we continue to grow our business through strategic acquisitions to better serve existing and new integrators, help broaden our product categories, and extend the geographic reach of our omni-channel capabilities. We have completed over ten acquisitions since 2015, representing an aggregate value of over $750.0 million, with the largest investment being the acquisition of Control4 in 2019.
On August 1, 2019, we completed our acquisition of Control4, a leading global provider of smart living solutions. This acquisition enabled Snap One to provide an end-to-end product offering and create a true one-stop shop for integrators. Additional benefits of the merger included increased innovation, simplified product integration, global distribution and leading customer service and support.
Our omni-channel strategy with a local branch presence enables us to capture additional spend with our existing integrators through new purchase occasions while also adding new integrators in local markets. In support of this strategy, we have completed four acquisitions of regional, value-added distribution businesses since 2018. These acquisitions have enabled us to complement our e-commerce portal with a geographically diversified footprint of local branches. We completed the acquisitions of Allnet, Inc. (“Allnet”) and Schireson Bros. Inc. dba Volutone Distributing Co. (“Volutone”) in 2018 to establish a presence in the Midwest and Southwest United States, respectively. In 2019, we completed the acquisitions of Marketing Representatives, Inc. (“MRI”) and Custom Plus Distributing, Inc. (“CPD”) to extend our coverage to the Northeastern and Pacific Northwest regions of the United States. We intend to continue to execute our local branch expansion strategy through a combination of organic openings and bolt-on acquisitions.
We will continue to pursue disciplined, accretive acquisitions that enhance our products, software and workflow solutions and expand into adjacent markets that allow us to serve our integrator base. Our network of third-party products as well as our close relationships with our integrators allow us to source a large pipeline of potential acquisition opportunities.
Impact of the COVID-19 Pandemic
The connected home market has fared well throughout the COVID-19 pandemic, as market data indicates that there has been an increase in the percentage of disposable income being spent on home-related goods and services as more of the working population has been staying at home. Furthermore, integration companies were deemed “essential workers” by the United States federal government, allowing a majority of integrators to remain open throughout the COVID-19 pandemic. Throughout the pandemic, we have supported professional integrators with their challenges, including staff considerations and the dynamic of practicing social distancing with their customers, to allow them to continue to provide their
customers the infrastructure and connectivity needed to create personalized experiences for individuals and families who are spending more time at home.
Following initial demand declines for our products and services in March and April 2020, sales recovered as professional integrators’ services became increasingly important for homeowners working and seeking entertainment from home. Our favorable liquidity position, disciplined supply chain execution and inventory availability drove strong performance during fiscal year 2020. This has resulted in accelerated growth in our business and reinforced our mission-criticality to our integrators. This macroeconomic trend is favorably impacting our business results to date, but the possible sustained spread or resurgence of the pandemic, and any government response thereto, increases the uncertainty regarding future economic conditions upon which our future business depends.
Key Metrics and Reconciliation of Non-GAAP Financial Data
In addition to the measures presented in our consolidated financial statements, we use the following additional key business metrics to help us monitor the performance of our business, measure our performance, identify trends affecting our business and assist us in making strategic decisions:
Adjusted EBITDA and Adjusted Net Income
We define Adjusted EBITDA as net loss, plus interest expense, net, income tax benefit, depreciation and amortization, further adjusted to exclude equity-based compensation, acquisition- and integration- related costs and certain other non-recurring, non-core, infrequent or unusual charges as described below.
We define Adjusted Net Income as net loss plus amortization further adjusted to exclude equity-based compensation, acquisition- and integration-related costs and certain non-recurring, non-core, infrequent or unusual charges, including the estimated tax impacts of these adjustments.
Adjusted EBITDA and Adjusted Net Income are key measures used by management to understand and evaluate our financial performance, trends and generate future operating plans, make strategic decisions regarding the allocation of capital and analyze investments in initiatives that are focused on cultivating new markets for our products and services. We believe Adjusted EBITDA and Adjusted Net Income are useful measurements for analysts, investors and other interested parties to evaluate companies in our markets as they help identify underlying trends that could otherwise be masked by certain expenses that we do not consider indicative of our ongoing performance.
Adjusted EBITDA and Adjusted Net Income have limitations as analytical tools. These measures are not calculated in accordance with GAAP and should not be considered in isolation from, or as a substitute for, financial information prepared in accordance with GAAP. In addition, Adjusted EBITDA and Adjusted Net Income may not be comparable to similarly titled metrics of other companies due to differences among the methods of calculation.
The following table presents a reconciliation of net loss to Adjusted EBITDA for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Calculation of Adjusted EBITDA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
$
|
(6,036)
|
|
|
|
|
$
|
(19,018)
|
|
|
|
|
$
|
(25,228)
|
|
|
|
|
$
|
(34,461)
|
|
|
|
Interest expense
|
|
|
|
|
9,535
|
|
|
|
|
|
12,803
|
|
|
|
|
|
45,529
|
|
|
|
|
|
35,244
|
|
|
|
Income tax benefit
|
|
|
|
|
(763)
|
|
|
|
|
|
(4,316)
|
|
|
|
|
|
(4,351)
|
|
|
|
|
|
(13,357)
|
|
|
|
Depreciation and amortization
|
|
|
|
|
13,712
|
|
|
|
|
|
14,483
|
|
|
|
|
|
57,972
|
|
|
|
|
|
39,657
|
|
|
|
Other (income) expense
|
|
|
|
|
(213)
|
|
|
|
|
|
883
|
|
|
|
|
|
(1,827)
|
|
|
|
|
|
(1,048)
|
|
|
|
Equity-based compensation
|
|
|
|
|
1,060
|
|
|
|
|
|
1,362
|
|
|
|
|
|
4,284
|
|
|
|
|
|
3,673
|
|
|
|
Fair value adjustment to contingent value rights(a)
|
|
|
|
|
1,310
|
|
|
|
|
|
(300)
|
|
|
|
|
|
800
|
|
|
|
|
|
314
|
|
|
|
Acquisition- and integration-related costs(b)
|
|
|
|
|
14
|
|
|
|
|
|
3,478
|
|
|
|
|
|
5,341
|
|
|
|
|
|
20,179
|
|
|
|
Initial public offering costs(c)
|
|
|
|
|
1,711
|
|
|
|
|
|
—
|
|
|
|
|
|
542
|
|
|
|
|
|
—
|
|
|
|
Deferred revenue purchase accounting adjustment(d)
|
|
|
|
|
148
|
|
|
|
|
|
370
|
|
|
|
|
|
1,012
|
|
|
|
|
|
831
|
|
|
|
Deferred acquisition payments(e)
|
|
|
|
|
2,152
|
|
|
|
|
|
3,302
|
|
|
|
|
|
9,649
|
|
|
|
|
|
13,615
|
|
|
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Other(f)
|
|
|
|
|
712
|
|
|
|
|
|
15
|
|
|
|
|
|
735
|
|
|
|
|
|
299
|
|
|
|
Adjusted EBITDA
|
|
|
|
$
|
23,342
|
|
|
|
|
$
|
13,062
|
|
|
|
|
$
|
94,458
|
|
|
|
|
$
|
64,946
|
|
|
|
|
The following table presents a reconciliation of net loss to Adjusted Net Income for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Net loss
|
|
|
|
$
|
(6,036)
|
|
|
|
|
$
|
(19,018)
|
|
|
|
|
$
|
(25,228)
|
|
|
|
|
$
|
(34,461)
|
|
|
|
Amortization
|
|
|
|
|
11,888
|
|
|
|
|
|
11,875
|
|
|
|
|
|
47,491
|
|
|
|
|
|
31,488
|
|
|
|
Foreign currency (gains) loss
|
|
|
|
|
(48)
|
|
|
|
|
|
1,142
|
|
|
|
|
|
(172)
|
|
|
|
|
|
(1,101)
|
|
|
|
(Gain) loss on sale of business
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(979)
|
|
|
|
|
|
561
|
|
|
|
Equity-based compensation
|
|
|
|
|
1,060
|
|
|
|
|
|
1,362
|
|
|
|
|
|
4,284
|
|
|
|
|
|
3,673
|
|
|
|
Fair value adjustment to contingent value rights(a)
|
|
|
|
|
1,310
|
|
|
|
|
|
(300)
|
|
|
|
|
|
800
|
|
|
|
|
|
314
|
|
|
|
Acquisition and integration related costs(b)
|
|
|
|
|
14
|
|
|
|
|
|
3,478
|
|
|
|
|
|
5,341
|
|
|
|
|
|
20,179
|
|
|
|
Initial public offering costs(c)
|
|
|
|
|
1,711
|
|
|
|
|
|
—
|
|
|
|
|
|
542
|
|
|
|
|
|
—
|
|
|
|
Deferred revenue purchase accounting adjustment(d)
|
|
|
|
|
148
|
|
|
|
|
|
370
|
|
|
|
|
|
1,012
|
|
|
|
|
|
831
|
|
|
|
Deferred acquisition payments(e)
|
|
|
|
|
2,152
|
|
|
|
|
|
3,302
|
|
|
|
|
|
9,649
|
|
|
|
|
|
13,615
|
|
|
|
Other(f)
|
|
|
|
|
690
|
|
|
|
|
|
(62)
|
|
|
|
|
|
760
|
|
|
|
|
|
225
|
|
|
|
Income tax effect of adjustments(g)
|
|
|
|
|
(3,855)
|
|
|
|
|
|
(4,856)
|
|
|
|
|
|
(15,189)
|
|
|
|
|
|
(15,630)
|
|
|
|
Adjusted Net Income
|
|
|
|
$
|
9,034
|
|
|
|
|
$
|
(2,707)
|
|
|
|
|
$
|
28,311
|
|
|
|
|
$
|
19,694
|
|
|
(a)
Represents noncash losses recorded from fair value adjustments related to contingent value right liabilities. Contingent value right liabilities represent potential obligations to the prior sellers in conjunction with the Investor’s acquisition of the Company in August 2017 and are based on estimates of expected cash payments to the prior sellers based on specified targets for the Investor’s return on its original capital investment.
(b)
Represents costs directly associated with acquisitions and acquisition-related integration activities. For fiscal year 2020 and the fiscal quarter ended March 27, 2020, the costs relate primarily to third-party consultant and information technology integration costs directly related to the Control4 acquisition. For fiscal year 2019, the costs primarily relate to third-party professional fees and integration costs related to the Control4 acquisition as well as similar costs incurred in connection with the MRI and CPD acquisitions. These costs also include certain restructuring costs (e.g., severance) and other third-party transaction advisory fees associated with the acquisitions.
(c)
Represents expenses related to professional fees in connection with preparation for our initial public offering.
(d)
Represents an adjustment related to the fair value of deferred revenue related to the Control4 acquisition.
(e)
Represents expenses incurred related to deferred payments to employees associated with our Control4 acquisition and other historical acquisitions. The deferred payments are cash retention awards for key personnel from the acquired companies and are expected to be paid to employees through 2022. Management does not believe such costs are indicative of our ongoing operations as they are one-time awards specific to acquisitions and are incremental to our typical compensation costs incurred and we do not expect such costs to be reflective of future increases in base compensation expense.
(f)
Represents non-recurring expenses primarily related to consulting and restructuring fees which management believes are not representative of our operating performance.
(g)
Represents the tax impacts with respect to each adjustment noted above after taking into account the impact of permanent differences using the statutory tax rate related to the applicable federal and foreign jurisdictions and the blended state tax rate.
Contribution Margin
We define Contribution Margin for a particular period as net sales less cost of sales, exclusive of depreciation and amortization, divided by net sales. Contribution Margin is a key measure used by management to understand and evaluate our financial performance, trends and generate future operating plans, make strategic decisions regarding the allocation of capital and analyze investments in initiatives that are focused on cultivating new markets for our products and services. We believe Contribution Margin is a useful measurement for analysts, investors and other interested parties to evaluate companies in our markets as they help identify underlying trends that could otherwise be masked by certain expenses that we do not consider indicative of our ongoing performance.
Contribution Margin has limitations as an analytical tool. This measure is not calculated in accordance with GAAP and should not be considered in isolation from, or as a substitute for, financial information prepared in accordance with GAAP. In addition, Contribution Margin may not be comparable to similarly titled metrics of other companies due to differences among the methods of calculation.
The following table presents the calculation of Contribution Margin:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
($ in thousands)
|
|
|
Net sales
|
|
|
|
$
|
220,468
|
|
|
|
|
$
|
172,611
|
|
|
|
|
$
|
814,113
|
|
|
|
|
$
|
590,842
|
|
|
|
Cost of sales, exclusive of depreciation and amortization(a)
|
|
|
|
|
128,876
|
|
|
|
|
|
100,390
|
|
|
|
|
|
474,778
|
|
|
|
|
|
354,821
|
|
|
|
Net sales less cost of sales, exclusive of depreciation and
amortization
|
|
|
|
$
|
91,592
|
|
|
|
|
$
|
72,221
|
|
|
|
|
$
|
339,335
|
|
|
|
|
$
|
236,021
|
|
|
|
Contribution Margin
|
|
|
|
|
41.5%
|
|
|
|
|
|
41.8%
|
|
|
|
|
|
41.7%
|
|
|
|
|
|
39.9%
|
|
|
(a)
Cost of sales, exclusive of depreciation and amortization for fiscal quarters ended March 26, 2021 and March 27, 2020 excludes depreciation and amortization of $13,712 and $14,483, respectively. Cost of sales, exclusive of depreciation and amortization for fiscal years 2020 and 2019 excludes depreciation and amortization of $57,972 and $39,657, respectively.
Free Cash Flow
We define Free Cash Flow as net cash provided by (used in) operating activities less capital expenditures (which consist of purchases of property and equipment as well as purchases of information technology, software development and leasehold improvements). We believe it is useful to exclude capital expenditures from our Free Cash Flow in order to measure the amount of cash we generate because the timing of such capital investments made may not directly correlate to the underlying financial performance of our business operations. Free Cash Flow is not a measure calculated in accordance with GAAP and should not be considered in isolation from, or as a substitute for financial information prepared in accordance with GAAP. In addition, Free Cash Flow may not be comparable to similarly titled metrics of other companies due to differences among methods of calculation. Free Cash Flow (as defined below) provides useful information to investors and others in understanding and evaluating our ability to generate additional cash from our business in the same manner as our management and board of directors. Free Cash Flow may be affected in the near to medium term by the timing of capital investments (such as purchases of information technology and other equipment and leasehold improvements), fluctuations in our growth and the effect of such fluctuations on working capital and changes in our cash conversion cycle due to increases or decreases of vendor payment terms as well as inventory turnover.
The following table presents a reconciliation of net cash provided by (used in) operating activities to Free Cash Flow for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Net cash provided by (used in) operating activities
|
|
|
|
$
|
(23,867)
|
|
|
|
|
$
|
(13,675)
|
|
|
|
|
$
|
64,227
|
|
|
|
|
$
|
(4,099)
|
|
|
|
Purchases of property and equipment
|
|
|
|
|
(2,050)
|
|
|
|
|
|
(2,405)
|
|
|
|
|
|
(10,245)
|
|
|
|
|
|
(4,496)
|
|
|
|
Free Cash Flow
|
|
|
|
$
|
(25,917)
|
|
|
|
|
$
|
(16,080)
|
|
|
|
|
$
|
53,982
|
|
|
|
|
$
|
(8,595)
|
|
|
Basis of Presentation and Key Components of Results of Operations
Net Sales
We generate net sales by selling to our integrators hardware products both with and without embedded software, which are then resold to end consumers, typically in the installation of an audio/video, IT, smart-home, or surveillance-related package. We act both as a principal in selling proprietary products, and as an agent in selling certain third-party products through strategic partnerships with outside suppliers. In addition, we generate a small percentage of our revenue through recurring revenue from subscription services associated with product sales including hosting services, technical support, and access to unspecified software updates and upgrades. Revenue is recognized when the integrator obtains control of the product, which occurs upon shipment, in an amount that reflects the consideration expected to be received in exchange for those products net of estimated discounts, rebates, returns, allowances and any taxes collected and remitted to government authorities. Revenue allocated to subscription services is recognized over time as services are provided. See “Critical Accounting Policies and Estimates — Revenue Recognition”.
Cost of sales, exclusive of depreciation and amortization
Cost of sales, exclusive of depreciation and amortization includes expenses related to production of proprietary goods including raw materials and inbound freight, purchase costs for third-party products produced by strategic partners and sold by Snap One, rebates, inventory reserve adjustments and employee costs related to assembly services. The components of our cost of sales, exclusive of depreciation and amortization may not be comparable to our peers. The changes in our cost of sales, exclusive of depreciation and amortization generally correspond with the changes in net sales and may be impacted by any significant fluctuations in the components of our cost of sales, exclusive of depreciation and amortization.
Selling, general and administrative expenses
Selling, general and administrative costs include payroll and related costs, occupancy costs, costs related to warehousing, distribution, outbound shipping to integrators, warranty, purchasing, advertising, research and development, non-income-based taxes, equity-based compensation, acquisition-related expenses and other corporate overhead costs. We expect that our selling, general and administrative expenses will increase in future periods as we continue to grow, and due to additional legal, accounting, insurance and other expenses that we expect to incur as a result of being a public company, including compliance with the Sarbanes-Oxley Act.
Depreciation and amortization
Depreciation expense is related to investments in property and equipment. Amortization expense consists of amortization of intangible assets originating from our acquisitions. Acquired intangible assets include developed technology, customer related intangibles, trademarks and trade names. We expect in the near term that depreciation and amortization may increase based on our acquisition activity, development of our platform and capitalized expenditures.
Interest expense
Interest expense includes interest expense on debt, including the Revolving Credit Facility, the Initial Term Loan, and the Incremental Term Loan (each of which is described in more detail below under “— Liquidity and Capital Resources — Debt Obligations”), as well as the non-cash amortization of deferred financing costs.
Other (income) expense
Other (income) expense includes interest income, foreign currency remeasurement and transaction gains and losses.
Income tax benefit
We are subject to U.S. federal, state and local income taxes as well as foreign income taxes based on enacted tax rates in each jurisdiction, as adjusted for allowable credits and deductions. During the ordinary course of business, there are many transactions and calculations for which the ultimate tax determination is uncertain. As a result, we recognize tax liabilities based on estimates of whether additional taxes will be due.
Results of Operations
The following table sets forth our results of operations and results of operations data expressed as a percentage of net sales for the periods presented. The period-to-period comparison of financial results is not necessarily indicative of future results.
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
% of
Net sales
|
|
|
March 27,
2020
|
|
|
% of
Net sales
|
|
|
December 25,
2020
|
|
|
% of
Net sales
|
|
|
December 27,
2019
|
|
|
% of
Net sales
|
|
|
|
|
|
($ in thousands)
|
|
|
Net Sales
|
|
|
|
$
|
220,468
|
|
|
|
|
|
100.0%
|
|
|
|
|
$
|
172,611
|
|
|
|
|
|
100.0%
|
|
|
|
|
$
|
814,113
|
|
|
|
|
|
100.0%
|
|
|
|
|
$
|
590,842
|
|
|
|
|
|
100.0%
|
|
|
|
Costs and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales, exclusive of depreciation and amortization
|
|
|
|
|
128,876
|
|
|
|
|
|
58.5%
|
|
|
|
|
|
100,390
|
|
|
|
|
|
58.2%
|
|
|
|
|
|
474,778
|
|
|
|
|
|
58.3%
|
|
|
|
|
|
354,821
|
|
|
|
|
|
60.1%
|
|
|
|
Selling, general and administrative
expenses
|
|
|
|
|
75,357
|
|
|
|
|
|
34.2%
|
|
|
|
|
|
67,386
|
|
|
|
|
|
39.0%
|
|
|
|
|
|
267,240
|
|
|
|
|
|
32.8%
|
|
|
|
|
|
209,986
|
|
|
|
|
|
35.5%
|
|
|
|
Depreciation and amortization
|
|
|
|
|
13,712
|
|
|
|
|
|
6.2%
|
|
|
|
|
|
14,483
|
|
|
|
|
|
8.4%
|
|
|
|
|
|
57,972
|
|
|
|
|
|
7.1%
|
|
|
|
|
|
39,657
|
|
|
|
|
|
6.7%
|
|
|
|
Total costs and expenses
|
|
|
|
|
217.945
|
|
|
|
|
|
98.9%
|
|
|
|
|
|
182,259
|
|
|
|
|
|
105.6%
|
|
|
|
|
|
799,990
|
|
|
|
|
|
98.3%
|
|
|
|
|
|
604,464
|
|
|
|
|
|
102.3%
|
|
|
|
Income (loss) from operations
|
|
|
|
|
2,523
|
|
|
|
|
|
1.1%
|
|
|
|
|
|
(9,648)
|
|
|
|
|
|
(5.6)%
|
|
|
|
|
|
14,123
|
|
|
|
|
|
1.7%
|
|
|
|
|
|
(13,622)
|
|
|
|
|
|
(2.3)%
|
|
|
|
Other expenses (income):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
|
|
9,535
|
|
|
|
|
|
4.3%
|
|
|
|
|
|
12,803
|
|
|
|
|
|
7.4%
|
|
|
|
|
|
45,529
|
|
|
|
|
|
5.6%
|
|
|
|
|
|
35,244
|
|
|
|
|
|
6.0%
|
|
|
|
Other (income) expense
|
|
|
|
|
(213)
|
|
|
|
|
|
(0.1)%
|
|
|
|
|
|
883
|
|
|
|
|
|
0.5%
|
|
|
|
|
|
(1,827)
|
|
|
|
|
|
(0.2)%
|
|
|
|
|
|
(1,048)
|
|
|
|
|
|
(0.2)%
|
|
|
|
Total other expenses
|
|
|
|
|
9,322
|
|
|
|
|
|
4.2%
|
|
|
|
|
|
13,686
|
|
|
|
|
|
7.9%
|
|
|
|
|
|
43,702
|
|
|
|
|
|
5.4%
|
|
|
|
|
|
34,196
|
|
|
|
|
|
5.8%
|
|
|
|
Loss before income tax benefit
|
|
|
|
|
(6,799)
|
|
|
|
|
|
(3.1)%
|
|
|
|
|
|
(23,334)
|
|
|
|
|
|
(13.5)%
|
|
|
|
|
|
(29,579)
|
|
|
|
|
|
(3.6)%
|
|
|
|
|
|
(47,818)
|
|
|
|
|
|
(8.1)%
|
|
|
|
Income tax benefit
|
|
|
|
|
(763)
|
|
|
|
|
|
-0.3%
|
|
|
|
|
|
(4,316)
|
|
|
|
|
|
(2.5)%
|
|
|
|
|
|
(4,351)
|
|
|
|
|
|
(0.5)%
|
|
|
|
|
|
(13,357)
|
|
|
|
|
|
(2.3)%
|
|
|
|
Net loss
|
|
|
|
|
(6,036)
|
|
|
|
|
|
(2.7)%
|
|
|
|
|
|
(19,018)
|
|
|
|
|
|
(11.0)%
|
|
|
|
|
|
(25,228)
|
|
|
|
|
|
(3.1)%
|
|
|
|
|
|
(34,461)
|
|
|
|
|
|
(5.8)%
|
|
|
|
Net loss attributable to noncontrolling interest
|
|
|
|
|
(22)
|
|
|
|
|
|
0.0%
|
|
|
|
|
|
(24)
|
|
|
|
|
|
0.0%
|
|
|
|
|
|
(344)
|
|
|
|
|
|
0.0%
|
|
|
|
|
|
(97)
|
|
|
|
|
|
0.0%
|
|
|
|
Net loss attributable to Company
|
|
|
|
$
|
(6,014)
|
|
|
|
|
|
(2.7)%
|
|
|
|
|
$
|
(18,994)
|
|
|
|
|
|
(11.0)%
|
|
|
|
|
$
|
(24,884)
|
|
|
|
|
|
(3.1)%
|
|
|
|
|
$
|
(34,364)
|
|
|
|
|
|
(5.8)%
|
|
|
Fiscal Quarter Ended March 26, 2021 Compared to the Fiscal Quarter Ended March 27, 2020
Net Sales
|
|
|
|
Fiscal Quarter Ended
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
|
|
|
($ in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Sales
|
|
|
|
$
|
220,468
|
|
|
|
|
$
|
172,611
|
|
|
|
|
$
|
47,857
|
|
|
|
|
|
27.7%
|
|
|
Net sales increased by $47.9 million, or 27.7%, for the fiscal quarter ended March 26, 2021 compared to the fiscal quarter ended March 27, 2020 primarily due to increased demand as well as lower sales in late March of the prior year which was negatively impacted by significant demand decline due to the initial work stoppages caused by the COVID-19 pandemic.
Net sales within the United States increased by $39.6 million, or 25.6%, from $154.5 million in the first fiscal quarter of 2020 to $194.1 million in the first fiscal quarter of 2021. International net sales increased by $8.3 million in the first fiscal quarter of 2021, or 45.5%, from $18.1 million to $26.4 million. We experienced widespread growth in the United States across the majority of product categories and geographic regions. Growth was strong across all of our home technology, security, and commercial markets, primarily due to the increase in number of integrators transacting with us, as well as growth in spend per integrator. We also benefitted from the continued ramp of local branches, and the opening of five additional branches between the first quarter of 2020 and end of the first fiscal quarter of 2021. We experienced faster year over year growth internationally as demand in the first fiscal quarter of 2020 was more negatively impacted due to COVID relative to demand in the United States.
Cost of Sales, exclusive of depreciation and amortization
|
|
|
|
Fiscal Quarter Ended
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
|
|
|
($ in thousands)
|
|
|
Cost of Sales, exclusive of depreciation and amortization
|
|
|
|
$
|
128,876
|
|
|
|
|
$
|
100,390
|
|
|
|
|
$
|
28,486
|
|
|
|
|
|
28.4%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
58.5%
|
|
|
|
|
|
58.2%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales, exclusive of depreciation and amortization increased $28.5 million, or 28.4%, for the first fiscal quarter of 2021 compared to the same fiscal quarter of 2020, driven by higher sales volumes. As a percentage of net sales, cost of sales, exclusive of depreciation and amortization increased to 58.5% in the first fiscal quarter of 2021 from 58.2% in the same fiscal quarter of 2020. The increase was primarily due to growth in our sales mix of third-party products in the first fiscal quarter of 2021 relative to the first fiscal quarter of 2020. Our third-party products typically have lower margins than our proprietary products. This resulted in Contribution Margin of 41.5% for the first fiscal quarter ended March 26, 2021, compared to 41.8% in the same fiscal quarter of 2020.
Selling, General and Administrative (“SG&A”) Expenses
|
|
|
|
Fiscal Quarter Ended
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
|
|
|
($ in thousands)
|
|
|
Selling, general and administrative expenses
|
|
|
|
$
|
75,357
|
|
|
|
|
$
|
67,386
|
|
|
|
|
$
|
7,971
|
|
|
|
|
|
11.8%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
34.2%
|
|
|
|
|
|
39.0%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses increased $8.0 million, or 11.8%, in the first fiscal quarter of 2021 compared to the same fiscal quarter of 2020. Approximately half of the increase in SG&A expenses
was due to increases in sales volume driving growth in variable expenses, such as outbound shipping, credit card processing fees, and warranty expense. The remaining increase in SG&A expenses is due to investments made in personnel, products and systems to support strategic growth initiatives, specifically the incremental local branches that have opened since the first fiscal quarter of 2020.
Depreciation and Amortization
|
|
|
|
Fiscal Quarter Ended
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
|
|
|
($ in thousands)
|
|
|
Depreciation and amortization
|
|
|
|
$
|
13,712
|
|
|
|
|
$
|
14,483
|
|
|
|
|
$
|
(771)
|
|
|
|
|
|
(5.3)%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
6.2%
|
|
|
|
|
|
8.4%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization expenses decreased by $0.8 million, or 5.3%, for the first fiscal quarter of 2021 as compared to the first fiscal quarter of 2020. Amortization expense associated with intangible assets acquired remained flat at $11.9 million in the first fiscal quarter of 2020 and 2021. Depreciation expense decreased approximately $0.8 million primarily due to certain software assets that became fully depreciated during fiscal year 2020.
Interest Expense
|
|
|
|
Fiscal Quarter Ended
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
|
|
|
($ in thousands)
|
|
|
Interest Expense
|
|
|
|
$
|
9,535
|
|
|
|
|
$
|
12,803
|
|
|
|
|
$
|
(3,268)
|
|
|
|
|
|
(25.5)%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
4.3%
|
|
|
|
|
|
7.4%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense decreased by $3.3 million, or 25.5%, for the first fiscal quarter of 2021 as compared to the first fiscal quarter of 2020. The decrease was primarily driven by lower average borrowing rates on our long-term debt and a lower average outstanding balance on our revolving credit facility in the first fiscal quarter of 2021 as compared to the first fiscal quarter of 2020. See Note 6 to our unaudited condensed consolidated financial statements included elsewhere in this prospectus for further information regarding interest expense.
Other (Income) Expense
|
|
|
|
Fiscal Quarter Ended
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
|
|
|
($ in thousands)
|
|
|
Other (income) expense
|
|
|
|
$
|
(213)
|
|
|
|
|
$
|
883
|
|
|
|
|
$
|
(1,096)
|
|
|
|
|
|
(124.1)%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
(0.1)%
|
|
|
|
|
|
0.5%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other (income) expense decreased by $1.1 million, or 124.1%, for the first fiscal quarter of 2021 as compared to first fiscal quarter of 2020, primarily due to foreign currency gains the prior year resulting from favorable foreign currency movements in the U.K. and Australia.
Income Tax Benefit
|
|
|
|
Fiscal Quarter Ended
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
|
|
|
($ in thousands)
|
|
|
Income tax benefit
|
|
|
|
$
|
(763)
|
|
|
|
|
$
|
(4,316)
|
|
|
|
|
$
|
3,553
|
|
|
|
|
|
(82.3)%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
(0.3)%
|
|
|
|
|
|
(2.5)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax benefit decreased by $3.6 million, or 82.3%, for the first fiscal quarter of 2021 as compared to the first fiscal quarter of 2020. The effective tax rate changed from 18.5% in the first fiscal quarter of 2020 to 11.3% in the first fiscal quarter of 2021. The decrease in the effective tax rate in the first fiscal quarter of 2021 and the difference from the statutory rate was primarily the result of discrete items recognized related to one-time transaction costs and the adjustment of deferred tax liabilities and the benefit of certain tax credits.
Fiscal Year 2020 Compared to Fiscal Year 2019
Net Sales
|
|
|
|
Fiscal Year Ended
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
|
|
|
(in thousands)
|
|
|
Net Sales
|
|
|
|
$
|
814,113
|
|
|
|
|
$
|
590,842
|
|
|
|
|
$
|
223,271
|
|
|
|
|
|
37.8%
|
|
|
Net sales increased by $223.3 million, or 37.8%, for fiscal year 2020 compared to fiscal year 2019. The primary driver of this growth in fiscal year 2020 was the full year benefit of acquisitions of MRI, CPD and Control4 which occurred in fiscal year 2019. In addition to the full year benefit of the fiscal year 2019 acquisitions, we increased net sales growth through the opening of four new local branches and the ramp up of existing local branches, the continued realization in fiscal year 2020 of revenue synergies from the Control4 acquisition in August 2019 and overall widespread growth across most product categories as a result of increased end consumer spending in residential upgrades and construction in the second half of 2020. Growth was particularly strong across our home technology and security markets. The increase in net sales was partially offset by significant demand declines in March and April of 2020 due to the initial work stoppages caused by COVID-19. On a pro forma basis to give effect to the acquisitions of MRI, CPD and Control4 as if they had occurred on the first day of fiscal year 2019 our combined net sales in fiscal year 2019 would have been $763.8 million, Our net sales for fiscal year 2020 represents growth of 6.6% compared to the pro forma net sales for fiscal year 2019.
Net sales within the United States increased by $190.8 million, in fiscal year 2020, or 36.1%, from $528.6 million in fiscal year 2019 to $719.4 million in fiscal year 2020, largely due to the full year benefit of the MRI, CPD and Control4 acquisitions. International net sales increased $32.5 million in fiscal year 2020, or 52.2%, from $62.2 million in fiscal year 2019 to $94.7 million in fiscal year 2020 driven by the full year benefit of owning Control4, which is the primary contributor to our international net sales. International net sales primarily consist of sales activity in the United Kingdom, Australia and Canada.
Cost of Sales, exclusive of depreciation and amortization
|
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
($ in thousands)
|
|
|
Cost of Sales, exclusive of depreciation and amortization
|
|
|
|
$
|
474,778
|
|
|
|
|
$
|
354,821
|
|
|
|
|
$
|
119,957
|
|
|
|
|
|
33.8%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
58.3%
|
|
|
|
|
|
60.1%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales, exclusive of depreciation and amortization increased $120.0 million, or 33.8%, for fiscal year 2020 compared to fiscal year 2019 primarily due to sales growth, which included the full year impact of acquisitions completed in fiscal year 2019 including MRI, CPD and Control4. As a percentage of sales, cost of sales, exclusive of depreciation and amortization declined to 58.3% in fiscal year 2020 from 60.1% in fiscal year 2019. The decline was primarily due to the realization of the full year benefit of sales of lower cost proprietary control and lighting products added through the Control4 acquisition, which generated higher profitability relative to third-party products. On a pro forma basis to give effect to the acquisitions of MRI, CPD and Control4 as if they had occurred on the first day of fiscal year 2019, our combined cost of sales, exclusive of depreciation and amortization in fiscal year 2019 would have been $436.5 million.
Selling, General and Administrative (“SG&A”) Expenses
|
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
($ in thousands)
|
|
|
Selling, general and administrative expenses
|
|
|
|
$
|
267,240
|
|
|
|
|
$
|
209,986
|
|
|
|
|
$
|
57,254
|
|
|
|
|
|
27.3%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
32.8%
|
|
|
|
|
|
35.5%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses increased $57.3 million, or 27.3%, in fiscal year 2020 compared to fiscal year 2019 primarily as a result of the full year impact of acquisitions, along with other investments made in personnel, products and systems to support strategic growth initiatives. These increases in SG&A expenses were partially offset savings from a decline in travel and entertainment expenses and limited event marketing spend after the first quarter of fiscal year 2020, due to COVID-19 impacts. We also incurred lower transaction costs associated with acquisitions in fiscal year 2020 as compared to the prior year. As a percentage of net sales, SG&A expenses fell to 32.8% in fiscal year 2020 compared to 35.5% in fiscal year 2019.
Depreciation and Amortization
|
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
($ in thousands)
|
|
|
Depreciation and amortization
|
|
|
|
$
|
57,972
|
|
|
|
|
$
|
39,657
|
|
|
|
|
$
|
18,315
|
|
|
|
|
|
46.2%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
7.1%
|
|
|
|
|
|
6.7%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization expenses increased by $18.3 million, or 46.2%, for fiscal year 2020 as compared to fiscal year 2019, primarily due to the customer relationships, trade name and technology intangible assets acquired as a result of the Control4 and other acquisitions in fiscal year 2019. Amortization expense associated with intangible assets acquired in fiscal year 2019 increased from $12.0 million in fiscal year 2019 to $28.2 million in fiscal year 2020. Depreciation expense increased approximately $2.3 million due to additional equipment, computers and leasehold improvements purchased in fiscal year 2020 associated with expansion of certain distribution and testing facilities, increased manufacturing and tooling equipment, and increased local branches driven by recent growth in our business. Additionally, depreciation expense in fiscal year 2020 includes the full-year impact of depreciation of property and equipment acquired in the Control4 and other acquisitions in fiscal year 2019.
Interest Expense
|
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
($ in thousands)
|
|
|
Interest Expense
|
|
|
|
$
|
45,529
|
|
|
|
|
$
|
35,244
|
|
|
|
|
$
|
10,285
|
|
|
|
|
|
29.2%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
5.6%
|
|
|
|
|
|
6.0%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense increased by $10.3 million, or 29.2%, for fiscal year 2020 as compared to fiscal year 2019. The increase was primarily driven by higher average borrowings in fiscal year 2020 as well as higher amortization of deferred financing costs resulting from the issuance of additional long-term debt of $390.0 million in August 2019 to fund the Control4 acquisition. The above factors were partially offset by lower average borrowing rates in fiscal year 2020 as compared to fiscal year 2019. See Note 8 to our consolidated financial statements included in this prospectus for further information regarding interest expense.
Other Income
|
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
($ in thousands)
|
|
|
Other income
|
|
|
|
$
|
(1,827)
|
|
|
|
|
$
|
(1,048)
|
|
|
|
|
$
|
(779)
|
|
|
|
|
|
74.3%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
(0.2)%
|
|
|
|
|
|
(0.2)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income increased by $0.8 million, or 74.3%, for fiscal year 2020 as compared to fiscal year 2019, primarily due to a $1.0 million gain on sale of a business in fiscal year 2020.
Income Tax Benefit
|
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
$ Change
|
|
|
% Change
|
|
|
|
|
|
($ in thousands)
|
|
|
Income tax benefit
|
|
|
|
$
|
(4,351)
|
|
|
|
|
$
|
(13,357)
|
|
|
|
|
$
|
9,006
|
|
|
|
|
|
(67.4)%
|
|
|
|
As a percentage of net sales
|
|
|
|
|
(0.5)%
|
|
|
|
|
|
(2.3)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax benefit decreased by $9.0 million, or 67.4%, for fiscal year 2020 as compared to fiscal year 2019. The effective tax rate changed from 28.4% in fiscal year 2019 to 14.9% in fiscal year 2020. The effective tax rate in fiscal year 2020 differs from the statutory rate primarily due to an increase in valuation allowances related to state and foreign net operating losses and certain state research and development credits that are not expected to be utilized in the future as well as a remeasurement adjustment of our net deferred tax liabilities. Research and development tax credits partially offset the decreases to the effective rate in fiscal year 2020. In fiscal year 2020, we generated a capital loss which is not expected to be utilized in the future and we have provided a full valuation allowance. In fiscal year 2019, the effective rate differs from the statutory rate primarily due to research and development tax credits, partially offset by changes in uncertain tax positions and valuation allowances. See Note 13 to our consolidated financial statements for a reconciliation of our effective income tax with the statutory rate for fiscal year 2020 and fiscal year 2019.
Immediately prior to the completion of this offering, we intend to enter into a tax receivable agreement that will provide for the payment by us to the TRA Participants of % of the amount of cash savings, if any, in U.S. federal, state and local income tax that we actually realize, or are deemed to realize (calculated using certain assumptions), as a result of the utilization of our net operating losses, credits and other tax benefits subject to the tax receivable agreement, including tax benefits attributable to payments under the tax receivable agreement. Please see “— Contractual Obligations — Tax Receivable Agreement” below.
Unaudited Quarterly Results of Operations Data and Other Data
The following tables show the unaudited quarterly consolidated statement of operations data and other data for each of the fiscal quarters in the year ended December 25, 2020 and the fiscal quarter ended March 26, 2021. The unaudited quarterly consolidated statements of operations data has been prepared on the same basis as our audited financial statements and include all adjustments, consisting of normal recurring adjustments, that are necessary for the fair presentation of financial information in accordance with U.S. GAAP. The sum of the quarterly periods may not equal full fiscal year or year-to-date amounts due to rounding. Our historical results are not necessarily indicative of the results that may be expected in the future, and results for the fiscal quarter ended March 26, 2021 are not necessarily indicative of results that may be expected for the full fiscal year or any other period. This data should be read together with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our audited and unaudited consolidated financial statements and related notes appearing elsewhere in this prospectus.
|
|
|
|
Fiscal Quarter Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
December 25,
2020
|
|
|
September 25,
2020
|
|
|
June 26,
2020
|
|
|
March 27,
2020
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands)
|
|
|
(in thousands)
|
|
|
|
|
Consolidated Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Sales
|
|
|
|
$
|
220,468
|
|
|
|
|
$
|
226,107
|
|
|
|
|
$
|
226,276
|
|
|
|
|
$
|
189,119
|
|
|
|
|
$
|
172,611
|
|
|
|
(Loss) income from operations
|
|
|
|
$
|
2,523
|
|
|
|
|
$
|
6,675
|
|
|
|
|
$
|
11,815
|
|
|
|
|
$
|
5,281
|
|
|
|
|
$
|
(9,648)
|
|
|
|
Net (loss) income attributable to Company
|
|
|
|
$
|
(6,014)
|
|
|
|
|
$
|
(4,094)
|
|
|
|
|
$
|
1,417
|
|
|
|
|
$
|
(3,213)
|
|
|
|
|
$
|
(18,994)
|
|
|
|
Per Share Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income per share, basic and diluted
|
|
|
|
$
|
(15.23)
|
|
|
|
|
$
|
(10.37)
|
|
|
|
|
$
|
3.59
|
|
|
|
|
$
|
(8.18)
|
|
|
|
|
$
|
(49.00)
|
|
|
|
Non-GAAP metrics:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA(1)
|
|
|
|
$
|
23,342
|
|
|
|
|
$
|
25,606
|
|
|
|
|
$
|
31.381
|
|
|
|
|
$
|
24,409
|
|
|
|
|
$
|
13,062
|
|
|
|
Adjusted Net Income(1)
|
|
|
|
$
|
9,034
|
|
|
|
|
$
|
8,543
|
|
|
|
|
$
|
14,815
|
|
|
|
|
$
|
7,660
|
|
|
|
|
$
|
(2,707)
|
|
|
|
Contribution Margin(1)
|
|
|
|
|
41.5%
|
|
|
|
|
|
41.6%
|
|
|
|
|
|
41.2%
|
|
|
|
|
|
42.2%
|
|
|
|
|
|
41.8%
|
|
|
(1)
Adjusted EBITDA, Adjusted Net Income and Contribution Margin are financial measures that are not calculated in accordance with U.S. GAAP. See “— Key Metrics and Reconciliation of Non-GAAP Financial Data” in this section above for information regarding our use of these non-GAAP financial measures and “— Non-GAAP Financial Measures” below for a reconciliation of net income (loss) to Adjusted EBITDA and Adjusted Net Income as well as the calculation of Contribution Margin for the periods presented.
Non-GAAP Financial Measures
The following table presents a reconciliation of net loss to Adjusted EBITDA for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
|
|
|
March 27,
2020
|
|
|
June 26,
2020
|
|
|
September 25,
2020
|
|
|
December 25,
2020
|
|
|
March 26,
2021
|
|
|
|
|
|
(in thousands)
|
|
|
Net loss
|
|
|
|
$
|
(19,018)
|
|
|
|
|
$
|
(3,229)
|
|
|
|
|
$
|
1,403
|
|
|
|
|
$
|
(4,384)
|
|
|
|
|
$
|
(6,036)
|
|
|
|
Interest expense
|
|
|
|
|
12,803
|
|
|
|
|
|
11,742
|
|
|
|
|
|
11,330
|
|
|
|
|
|
9,654
|
|
|
|
|
|
9,535
|
|
|
|
Income tax (benefit) expense
|
|
|
|
|
(4,316)
|
|
|
|
|
|
(1,015)
|
|
|
|
|
|
(694)
|
|
|
|
|
|
1,674
|
|
|
|
|
|
(763)
|
|
|
|
Depreciation and amortization
|
|
|
|
|
14,483
|
|
|
|
|
|
14,500
|
|
|
|
|
|
14,368
|
|
|
|
|
|
14,621
|
|
|
|
|
|
13,712
|
|
|
|
Other (income) expense
|
|
|
|
|
883
|
|
|
|
|
|
(2,217)
|
|
|
|
|
|
(224)
|
|
|
|
|
|
(269)
|
|
|
|
|
|
(213)
|
|
|
|
Equity-based compensation
|
|
|
|
|
1,362
|
|
|
|
|
|
1,185
|
|
|
|
|
|
1,025
|
|
|
|
|
|
712
|
|
|
|
|
|
1,060
|
|
|
|
Fair value adjustment to contingent value rights(a)
|
|
|
|
|
(300)
|
|
|
|
|
|
(700)
|
|
|
|
|
|
1,300
|
|
|
|
|
|
500
|
|
|
|
|
|
1,310
|
|
|
|
Acquisition- and integration-related costs(b)
|
|
|
|
|
3,478
|
|
|
|
|
|
899
|
|
|
|
|
|
640
|
|
|
|
|
|
324
|
|
|
|
|
|
14
|
|
|
|
Initial public offering costs(c)
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
542
|
|
|
|
|
|
1,711
|
|
|
|
Deferred revenue purchase accounting adjustment(d)
|
|
|
|
|
370
|
|
|
|
|
|
280
|
|
|
|
|
|
193
|
|
|
|
|
|
169
|
|
|
|
|
|
148
|
|
|
|
Deferred acquisition payments(e)
|
|
|
|
|
3,302
|
|
|
|
|
|
2,933
|
|
|
|
|
|
2,038
|
|
|
|
|
|
1,376
|
|
|
|
|
|
2,152
|
|
|
|
Other(f)
|
|
|
|
|
15
|
|
|
|
|
|
31
|
|
|
|
|
|
2
|
|
|
|
|
|
687
|
|
|
|
|
|
712
|
|
|
|
Adjusted EBITDA
|
|
|
|
$
|
13,062
|
|
|
|
|
$
|
24,409
|
|
|
|
|
$
|
31,381
|
|
|
|
|
$
|
25,606
|
|
|
|
|
$
|
23,342
|
|
|
The following table presents a reconciliation of net loss to Adjusted Net Income for the periods presented:
|
|
|
|
Fiscal Quarter Ended
|
|
|
|
|
|
March 27,
2020
|
|
|
June 26,
2020
|
|
|
September 25,
2020
|
|
|
December 25,
2020
|
|
|
March 26,
2021
|
|
|
|
|
|
(in thousands)
|
|
|
Net loss
|
|
|
|
$
|
(19,018)
|
|
|
|
|
$
|
(3,229)
|
|
|
|
|
$
|
1,403
|
|
|
|
|
$
|
(4,384)
|
|
|
|
|
$
|
(6,036)
|
|
|
|
|
|
|
Fiscal Quarter Ended
|
|
|
|
|
|
March 27,
2020
|
|
|
June 26,
2020
|
|
|
September 25,
2020
|
|
|
December 25,
2020
|
|
|
March 26,
2021
|
|
|
|
|
|
(in thousands)
|
|
|
Amortization
|
|
|
|
|
11,875
|
|
|
|
|
|
11,872
|
|
|
|
|
|
11,872
|
|
|
|
|
|
11,872
|
|
|
|
|
|
11,888
|
|
|
|
Foreign currency (gains) loss
|
|
|
|
|
1,142
|
|
|
|
|
|
(985)
|
|
|
|
|
|
(55)
|
|
|
|
|
|
(274)
|
|
|
|
|
|
(48)
|
|
|
|
Gain on sale of business
|
|
|
|
|
—
|
|
|
|
|
|
(979)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Equity-based compensation
|
|
|
|
|
1,362
|
|
|
|
|
|
1,185
|
|
|
|
|
|
1,025
|
|
|
|
|
|
712
|
|
|
|
|
|
1,060
|
|
|
|
Fair value adjustment to contingent value rights(a)
|
|
|
|
|
(300)
|
|
|
|
|
|
(700)
|
|
|
|
|
|
1,300
|
|
|
|
|
|
500
|
|
|
|
|
|
1,310
|
|
|
|
Acquisition- and integration-related costs(b)
|
|
|
|
|
3,478
|
|
|
|
|
|
899
|
|
|
|
|
|
640
|
|
|
|
|
|
324
|
|
|
|
|
|
14
|
|
|
|
Initial public offering costs(c)
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
542
|
|
|
|
|
|
1,711
|
|
|
|
Deferred revenue purchase accounting adjustment(d)
|
|
|
|
|
370
|
|
|
|
|
|
280
|
|
|
|
|
|
193
|
|
|
|
|
|
169
|
|
|
|
|
|
148
|
|
|
|
Deferred acquisition payments(e)
|
|
|
|
|
3,302
|
|
|
|
|
|
2,933
|
|
|
|
|
|
2,038
|
|
|
|
|
|
1,376
|
|
|
|
|
|
2,152
|
|
|
|
Other(f)
|
|
|
|
|
(62)
|
|
|
|
|
|
(46)
|
|
|
|
|
|
2
|
|
|
|
|
|
866
|
|
|
|
|
|
690
|
|
|
|
Income tax effect of adjustments(g)
|
|
|
|
|
(4,856)
|
|
|
|
|
|
(3,570)
|
|
|
|
|
|
(3,603)
|
|
|
|
|
|
(3,160)
|
|
|
|
|
|
(3,855)
|
|
|
|
Adjusted Net Income
|
|
|
|
$
|
(2,707)
|
|
|
|
|
$
|
7,660
|
|
|
|
|
$
|
14,815
|
|
|
|
|
$
|
8,543
|
|
|
|
|
$
|
9,034
|
|
|
|
|
(a)
Represents noncash losses recorded from fair value adjustments related to contingent value right liabilities. Contingent value right liabilities represent potential obligations to the prior sellers in conjunction with the Investor’s acquisition of the Company in August 2017 and are based on estimate of expected cash payments to the prior sellers based on specified targets for the Investor’s return on its original capital investment.
(b)
Represents costs directly associated with acquisitions and acquisition-related integration activities related primarily to third-party consultant and information technology integration costs directly related to the Control4 acquisition.
(c)
Represents expenses related to professional fees in connection with preparation for our initial public offering.
(d)
Represents an adjustment related to the fair value of deferred revenue related to the Control4 acquisition.
(e)
Represents expenses incurred related to deferred payments to employees associated with our Control4 acquisition and other historical acquisitions. The deferred payments are cash retention awards for key personnel from the acquired companies and are expected to be paid to employees through 2022. Management does not believe such costs are indicative of our ongoing operations as they are one-time awards specific to acquisitions and are incremental to our typical compensation costs incurred and we do not expect such costs to be reflective of future increases in base compensation expense.
(f)
Represents non-recurring expenses primarily related to consulting and restructuring fees which management believes are not representative of our operating performance.
(g)
Represents the tax impacts with respect to each adjustment noted above after taking into account the impact of permanent differences using the statutory tax rate related to the applicable federal and foreign jurisdictions and the blended state tax rate.
The following table presents the calculation of Contribution Margin:
|
|
|
|
Fiscal Quarter Ended
|
|
|
|
|
|
March 27,
2020
|
|
|
June 26,
2020
|
|
|
September 25,
2020
|
|
|
December 25,
2020
|
|
|
March 26,
2021
|
|
|
|
|
|
($ in thousands)
|
|
|
Net sales
|
|
|
|
$
|
172,611
|
|
|
|
|
$
|
189,119
|
|
|
|
|
$
|
226,276
|
|
|
|
|
$
|
226,107
|
|
|
|
|
$
|
220,468
|
|
|
|
Cost of sales, exclusive of depreciation and amortization(a)
|
|
|
|
|
100,390
|
|
|
|
|
|
109,243
|
|
|
|
|
|
133,131
|
|
|
|
|
|
132,014
|
|
|
|
|
|
128,876
|
|
|
|
|
|
|
Fiscal Quarter Ended
|
|
|
|
|
|
March 27,
2020
|
|
|
June 26,
2020
|
|
|
September 25,
2020
|
|
|
December 25,
2020
|
|
|
March 26,
2021
|
|
|
|
|
|
($ in thousands)
|
|
|
Net sales less cost of sales, exclusive of depreciation and amortization
|
|
|
|
$
|
72,221
|
|
|
|
|
$
|
79,876
|
|
|
|
|
$
|
93,145
|
|
|
|
|
$
|
94,093
|
|
|
|
|
$
|
91,592
|
|
|
|
Contribution Margin
|
|
|
|
|
41.8%
|
|
|
|
|
|
42.2%
|
|
|
|
|
|
41.2%
|
|
|
|
|
|
41.6%
|
|
|
|
|
|
41.5%
|
|
|
(a)
Cost of sales, exclusive of depreciation and amortization for fiscal quarters ended March 27, 2020, June 26, 2020, September 25, 2020, December 25, 2020 and March 26, 2021 excludes depreciation and amortization of $14,483, $14,500, $14,368, $14,621 and $13,712, respectively.
Liquidity and Capital Resources
Sources of Liquidity
Our primary sources of liquidity are net cash provided by operating activities and availability under our Credit Agreement. We assess our liquidity in terms of our ability to generate adequate amounts of cash to meet current and future needs. Our expected primary uses on a short-term and long-term basis are for working capital requirements, capital expenditures, geographic or service offering expansion, acquisitions, debt service requirements and other general corporate purposes. Our primary working capital requirements are for the purchase of inventory, payroll, rent, other facility costs, distribution costs and general and administrative costs. Our working capital requirements fluctuate during the year, driven primarily by seasonality and the timing of inventory purchases. Following this offering, our principal liquidity requirements will also include payments under our tax receivable agreement. Our capital expenditures are primarily related to infrastructure-related investments, including investments related to upgrading and maintaining our information technology systems, ongoing location improvements (joint design and manufacturing tooling), expenditures related to our distributions centers, and new location openings. We expect to fund capital expenditures from net cash provided by operating activities.
We have historically funded our operations and acquisitions primarily through internally generated cash on hand and our Credit Facilities, except for the acquisition of Control4 which was partially funded by a capital contribution from the Investor.
Working Capital, Excluding Deferred Revenue
The following table summarizes our cash, cash equivalents, accounts receivable and working capital, which we define as current assets minus current liabilities excluding deferred revenue, for the periods indicated:
|
|
|
|
As of
|
|
|
|
|
|
March 26,
2021
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
|
|
|
(in thousands)
|
|
|
Cash and cash equivalents
|
|
|
|
$
|
48,943
|
|
|
|
|
$
|
77,458
|
|
|
|
|
$
|
33,177
|
|
|
|
Accounts receivable, net
|
|
|
|
|
56,313
|
|
|
|
|
|
49,363
|
|
|
|
|
|
46,226
|
|
|
|
Working capital, excluding deferred revenue
|
|
|
|
|
162,456
|
|
|
|
|
|
141,476
|
|
|
|
|
|
134,319
|
|
|
Our cash and cash equivalents as of March 26, 2021 are available for working capital purposes. We do not enter into investments for trading purposes, and our investment policy is to invest any excess cash in short term, highly liquid investments that reduce the risk of principal loss; therefore, our cash and cash equivalents are held in demand deposit accounts that generate very low returns.
We believe that our existing cash and cash equivalents, together with expected cash flow from operating activities, will be sufficient to fund our operations and capital expenditure requirements for the next 12 months. Beyond the next 12 months, our primary capital requirements primarily consist of required principal and
interest payments on long-term debt and lease payments under non-cancelable lease commitments as further described in Notes 8 and 14 to our consolidated financial statements included elsewhere in this prospectus. If cash provided by operating activities and borrowings under our Credit Agreement are not sufficient or available to meet our short and long-term capital requirements, then we may consider additional equity or debt financing in the future. There can be no assurance debt or equity financing will be available to us if we need it or, if available, the terms will be satisfactory to us. Our sources of liquidity could be affected by factors described under “Risk Factors” elsewhere in this prospectus.
Debt Obligations
On August 4, 2017, our wholly-owned subsidiary, Wirepath LLC (the “Borrower”) entered into a Credit Agreement (the “Credit Agreement”) with various financial institutions consisting of a Revolving Credit Facility that provided for borrowings of up to $50.0 million, and an Initial Term Loan in the amount of $265.0 million. The Revolving Credit Facility matures on August 4, 2022, and the Initial Term Loan matures on August 4, 2024. We can elect that loans under the Revolving Credit Facility and Initial Term Loan be alternate base rate loans or LIBOR-based loans, each at the published interest rates, plus the applicable margin as further discussed below. We have elected LIBOR-based loans in each instance.
On February 5, 2018, the Credit Agreement was amended to reduce the applicable interest rate margin on the Revolving Credit Facility and Initial Term Loan by 0.75 percentage points each. On October 31, 2018, the Credit Agreement was amended for a second time to increase the Initial Term Loan principal to $292.4 million, with a reduction of 0.50 percentage points to the applicable interest rate margin on the Revolving Credit Facility and Initial Term Loan. On August 1, 2019, the Credit Agreement was amended for a third time to provide an Incremental Term Loan in the amount of $390.0 million and increase commitments under the Revolving Credit Facility to $60.0 million. Borrowings under the Revolving Credit Facility and term loans bear interest at a variable rate, at the Borrower’s option, of either (i) a eurodollar rate based on LIBOR for a specific interest period plus an applicable margin, subject to a eurodollar rate floor of 0.00%, or (ii) an alternate base rate plus an applicable margin, subject to a base rate floor of 0.00%. Interest on the Revolving Credit Facility and the term loans is payable quarterly in arrears with respect to alternate base rate loans and payable on the last day of each applicable interest period (or, in the case of an interest period in excess of three months, on three-month intervals of the first day of such interest period) with respect to eurodollar rate loans. The margins for the Revolving Credit Facility range from 3.50% to 4.00% per annum for eurodollar rate loans and 2.50% to 3.00% per annum for alternate base rate loans, depending on the applicable first lien secured leverage ratio. The margins for the Initial Term Loan are fixed at 4.00% per annum for eurodollar rate loans and 3.00% per annum for alternate base rate loans. The margins for the Incremental Term Loan are fixed at 4.75% per annum for eurodollar rate loans and 3.75% per annum for alternate base rate loans. Unused commitments under the Revolving Credit Facility are subject to a commitment fee ranging from 0.25% to 0.50% depending on the applicable first lien secured net leverage ratio.
The LIBOR-based rate for the Revolving Credit Facility and the Initial Term Loan is LIBOR (0.22% and 0.25% as of December 25, 2020 and March 26, 2021, respectively), plus the applicable margin (4.00% as of December 25, 2020 and March 26, 2021), amounting to an effective rate of 4.22% as of December 25, 2020 and 4.25% as of March 26, 2021, in each case. The LIBOR-based rate for the Incremental Term Loan is LIBOR (0.22% and 0.25% as of December 25, 2020 and March 26, 2021, respectively), plus the applicable margin (4.75% as of December 25, 2020 and March 26, 2021), amounting to an effective rate of 4.97% as of December 25, 2020 and 5.0% as of March 26, 2021.
On December 31, 2018, we purchased an interest rate cap to guard against unexpected increases in LIBOR to which our debt instruments are tied. Pursuant to the agreements, we have capped LIBOR at 3.55% with respect to the aggregate notional amount of $189.6 million, decreasing by scheduled principal payments on the Initial Term Loan through the expiration of the agreements in December 2021. In the event LIBOR exceeds 3.55%, we will pay interest at the capped rate plus the applicable margin. In the event LIBOR is less than 3.55%, we will pay interest at the prevailing LIBOR rate plus the applicable margin. The asset is recorded at fair value.
The term loans amortize in fixed equal quarterly installments in an amount equal to 1.0% per annum of the total aggregate principal amount thereof immediately after borrowing, with the balance due at
maturity. We may voluntarily prepay loans or reduce commitments under the Credit Agreement, in whole or in part, subject to minimum amounts, with prior notice but without premium or penalty (subject to customary exceptions). We may be required, with certain exceptions, to make mandatory payments under the Credit Agreement using a percentage of our annual excess cash flows or net proceeds from any non-ordinary course asset sales or certain debt issuances, if any.
The Borrower’s obligations under the Credit Agreement are guaranteed by its direct parent company, our wholly owned subsidiary Crackle Purchaser LLC (formerly known as Crackle Purchaser Corp.) and each of the Borrower’s current and future direct and indirect subsidiaries other than (i) foreign subsidiaries, (ii) unrestricted subsidiaries, (iii) non-wholly owned subsidiaries, (iv) immaterial subsidiaries and (v) certain holding companies of foreign subsidiaries, and are secured by a first lien on substantially all of their assets, including the capital stock of subsidiaries (subject to certain exceptions).
The Credit Agreement contains various customary affirmative and negative covenants. The financial covenants we are measured against are consolidated earnings before interest, taxes, depreciation and amortization, adjusted for allowable add-backs specified in the Credit Agreement (“consolidated EBITDA”), and associated ratios, as defined in the Credit Agreement. We were in compliance with such covenants as of December 25, 2020 and March 26, 2021.
In addition, the Revolving Credit Facility is subject to a first lien secured net leverage ratio of 8.15 to 1:00, tested quarterly if, and only if, the aggregate principal amount from the revolving facility loans, letters of credit (to the extent not cash collateralized or backstopped or, in the aggregate, not in excess of the greater of $5.0 million and the stated face amount of letters of credit outstanding on the initial closing date of the Credit Agreement) and swingline loans outstanding and/or issued, as applicable, exceeds 35.0% of the total amount of the Revolving Credit Facility commitments.
As of December 25, 2020, the Company had no borrowings under the Revolving Credit Facility, $286.5 million outstanding under the Initial Term Loan and $386.1 million outstanding under the Incremental Term Loan. As of March 26, 2021, we had no borrowings under the Revolving Credit Facility, $285.8 million outstanding under the Initial Term Loan and $385.1 million outstanding under the Incremental Term Loan.
Historical Cash Flows
The following table sets forth our cash flows for fiscal year 2019 and fiscal year 2020:
|
|
|
|
Fiscal Quarter Ended
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
March 26, 2021
|
|
|
March 27, 2020
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
|
|
|
(in thousands)
|
|
|
Net cash provided by (used in) operating
activities
|
|
|
|
$
|
(23,867)
|
|
|
|
|
$
|
(13,675)
|
|
|
|
|
$
|
64,227
|
|
|
|
|
$
|
(4,099)
|
|
|
|
Net cash used in investing activities
|
|
|
|
|
(2,479)
|
|
|
|
|
|
(2,383)
|
|
|
|
|
|
(9,566)
|
|
|
|
|
|
(588,602)
|
|
|
|
Net cash (used in) provided by financing
activities
|
|
|
|
|
(2,146)
|
|
|
|
|
|
45,087
|
|
|
|
|
|
(10,863)
|
|
|
|
|
|
617,904
|
|
|
Operating Activities
Net cash used in operating activities increased $10.2 million from $13.7 million in the first fiscal quarter of 2020 to $23.9 million in the first fiscal quarter of 2021. The increase in net cash used in operating activities was driven primarily by a net decrease in cash of $26.7 million related to changes in working capital. These decreases were partially offset by improvements in net loss as adjusted for non-cash activities in the first fiscal quarter of 2021 as compared to the same period of the prior year.
Net cash provided by operating activities increased by $68.3 million from net cash used of $4.1 million in fiscal year 2019 to net cash provided of $64.2 million in fiscal year 2020. The increase primarily resulted from a decrease in net loss as adjusted for non-cash items as well as actions taken to improve working capital in response to the COVID-19 pandemic. The increase in cash generated in fiscal year 2020 was attributable
to growth of our overall business, the full year benefit of operations from the acquisitions of MRI, CPD and Control4, including lowered transaction costs, as well as a decline in travel and entertainment and event marketing spend due to the COVID-19 impacts. Additionally, we significantly improved our working capital position in light of the COVID-19 pandemic by increasing focus on collections of accounts receivable, managing inventory levels, and negotiating extended payment terms with vendors, resulting in increased cash flow from operations in fiscal year 2020.
Investing Activities
Net cash used in investing activities increased from $2.4 million in the first fiscal quarter of 2020 to $2.5 million in the first fiscal quarter of 2021. Net cash used in investing activities for both periods was primarily driven by purchases of property and equipment.
Net cash used in investing activities decreased by $579.0 million from $588.6 million in fiscal year 2019 to $9.6 million in fiscal year 2020. Net cash used in investing activities in fiscal year 2020 primarily consisted of $10.2 million of capital expenditures for equipment, computers and leasehold improvements. Net cash used in investing activities in 2019 included $584.2 million associated with the acquisitions of MRI, CPD and Control4 as well as $4.5 million of capital expenditures. See Note 3 to our consolidated financial statements included elsewhere in this prospectus for further discussion of our acquisitions.
Financing Activities
Net cash used in financing activities was $2.1 million in the first fiscal quarter of 2021 as compared to net cash provided by financing activities of $45.1 million in the first fiscal quarter of 2020, a decrease of $47.2 million. The decrease was primarily due to proceeds from our revolving credit facility of $47.4 million in the prior year which included cash borrowings taken in order to enhance our liquidity during the COVID-19 outbreak. See Note 6 to our unaudited condensed consolidated financial statements included elsewhere in this prospectus.
Net cash used in financing activities decreased by $628.8 million from net cash provided of $617.9 million in fiscal year 2019 to net cash used of $10.9 million in fiscal year 2020. Net cash used in financing activities in fiscal year 2020 included $6.8 million of payments on long-term debt and net payments of $5.0 million on our Revolving Credit Facility. In fiscal year 2019, net cash provided by financing activities was driven by proceeds of $390.0 million from the issuance of the Incremental Term Loan and $255.0 million in capital contributions both of which were related to the acquisition of Control4. We also paid $20.2 million in debt issuance costs associated with the Incremental Term Loan and $4.0 million in net payments on our Revolving Credit Facility in fiscal year 2019. See Note 8 to our consolidated financial statements included elsewhere in this prospectus for further discussion of our debt obligations.
Off-Balance Sheet Arrangements
As of December 25, 2020 and March 26, 2021, we had off-balance sheet arrangements totaling $4.9 million related to our outstanding letters of credit as further described in Note 8 to our consolidated financial statements and Note 6 to our unaudited condensed consolidated financial statements included elsewhere in this prospectus.
Contractual Obligations
Contractual Obligations and Commitments Table
Significant contractual obligations and commercial commitments as of December 25, 2020 are as follows:
|
|
|
|
Payments due by period
|
|
|
|
|
|
Total
|
|
|
<1 years
|
|
|
1 – 3 years
|
|
|
3 – 5 years
|
|
|
More than
5 years
|
|
|
|
|
|
(in thousands)
|
|
|
Long-term debt obligations(1)
|
|
|
|
$
|
672,608
|
|
|
|
|
$
|
21,149
|
|
|
|
|
$
|
13,648
|
|
|
|
|
$
|
637,811
|
|
|
|
|
$
|
—
|
|
|
|
|
|
|
Payments due by period
|
|
|
|
|
|
Total
|
|
|
<1 years
|
|
|
1 – 3 years
|
|
|
3 – 5 years
|
|
|
More than
5 years
|
|
|
|
|
|
(in thousands)
|
|
|
Interest payments(2)
|
|
|
|
|
111,685
|
|
|
|
|
|
31,555
|
|
|
|
|
|
61,547
|
|
|
|
|
|
18,583
|
|
|
|
|
|
—
|
|
|
|
Operating leases(3)
|
|
|
|
|
41,998
|
|
|
|
|
|
11,400
|
|
|
|
|
|
15,042
|
|
|
|
|
|
10,936
|
|
|
|
|
|
4,620
|
|
|
|
Total
|
|
|
|
$
|
826,291
|
|
|
|
|
$
|
64,104
|
|
|
|
|
$
|
90,237
|
|
|
|
|
$
|
667,330
|
|
|
|
|
$
|
4,620
|
|
|
|
|
(1)
Represents contractual principal payments on our term loan debt obligations as of December 25, 2020.
(2)
Represents estimated interest payments on our term loan debt obligations calculated using the applicable interest rate as of December 25, 2020 as well as the letter of credit and commitment fees for the unused portion of our revolving credit facility. The payments due by period do not consider amounts which may be payable under the excess cash flow provisions under the term loans. The estimate does not reflect future borrowings on our revolving credit facility.
(3)
Represents non-cancellable lease payments on our operating lease obligations as of December 25, 2020.
Tax Receivable Agreement
In connection with this offering, we expect to be able to utilize net operating losses and certain other tax benefits that arose prior to or in connection with this offering and are therefore attributable to our TRA Participants. These tax benefits will reduce the amount of tax that we would otherwise be required to pay in the future. Therefore, we will enter into a tax receivable agreement that will provide for the payment by us to the TRA Participants of 85% of the amount of cash savings, if any, in U.S. federal, state and local income tax that we actually realize, or are deemed to realize (calculated using certain assumptions), as a result of the utilization of our net operating losses and other tax benefits subject to the tax receivable agreement, including tax benefits attributable to payments under the tax receivable agreement. We expect to benefit from the remaining 15% of cash tax savings, if any, in income tax we realize. With respect to certain pre-IPO owners that are not TRA Participants, we intend to pay a cash dividend of approximately $ million to the Investor, which will be used in part to pay such pre-IPO owners for their interests in the sum of (i) the current fair market value of the tax receivable and (ii) the total cash distribution that will be made to such pre-IPO owners in lieu of their participation in the tax receivable agreement. A portion of the cash distribution associated with units of the Investor that are subject to vesting requirements will be held in escrow by the Company subject to similar vesting requirements as the shares of restricted stock received in exchange for such units. Distributions made to pre-IPO owners related to their vested Incentive Units as of the IPO date will be recorded as an expense in the period the distributions are made and distributions related to their unvested Incentive Units as of the date of this offering will be recorded as an expense over the remaining estimated service period. The cash distribution will be in addition to any payments we make under the tax receivable agreement and will not reduce the amounts we will otherwise be required to pay under the tax receivable agreement.
For purposes of the tax receivable agreement, the cash tax savings in income tax will be computed by comparing the actual income tax liability of the Company (calculated with certain assumptions, including the use of an assumed state and local income tax rate to calculate tax benefits) to the amount of such taxes that the Company would have been required to pay without giving effect to the tax benefits subject to the tax receivable agreement. The term of the tax receivable agreement will continue until all such tax benefits have been utilized or expired, or we exercise our right to terminate the tax receivable agreement for an amount based upon certain assumptions, we breach any of our material obligations under the tax receivable agreement, whether as a result of a failure to make any payment when due, failure to honor any other material obligation required thereunder or by operation of law as a result of the rejection of the tax receivable agreement in a case commenced under the federal bankruptcy laws or otherwise, upon the occurrence of certain bankruptcy or insolvency proceedings involving us, or upon certain changes of control. In the case of an acceleration event or change of control, all obligations generally will be accelerated and due as if we had exercised our right to terminate the tax receivable agreement. Estimating the amount of payments that
may be made under the tax receivable agreement is by its nature imprecise, insofar as the calculation of amounts payable depends on a variety of factors. The amount and timing of any payments under the tax receivable agreement will vary depending upon a number of factors, including the amount, character and timing of our income. We will be required to pay % of the cash tax savings, if any, as and when realized. If we do not have taxable income, we are not required (absent circumstances requiring an early termination payment, other acceleration of our obligations under the tax receivable agreement or a change of control) to make payments under the tax receivable agreement for that taxable year because no cash tax savings will have been realized. However, unutilized deductions that do not result in realized benefits in a given tax year as a result of insufficient taxable income may be applied to taxable income in future years and accordingly would impact the amount of cash tax savings in such future years and the amount of corresponding payments under the tax receivable agreement in such future years.
We anticipate that we will account for the effects of these tax benefits and associated payments under the tax receivable agreement arising from future realized tax savings as follows:
•
as of the date the agreement is entered into, we expect to have deferred tax assets recorded for certain of the tax benefits subject to the agreement based on enacted federal tax rates and an assumed state and local tax rate;
•
we will record a liability for the estimated payments expected to be made pursuant to the agreement based on enacted federal tax rates and an assumed state and local tax rate at the date the agreement is entered into and any liability recognized will be accounted for as a reduction of additional paid-in capital;
•
to the extent we estimate that we will not realize the full benefit represented by the deferred tax asset, based on an analysis that will consider, among other things, our expectation of future earnings, we will reduce the deferred tax asset with a valuation allowance; and
•
the effects of changes to our estimate of payments to be made under the tax receivable agreement including changes due to subsequent changes in enacted tax rates, will be included in net income.
We expect that the payments that we may make under the tax receivable agreement will be material. See “Certain Relationships and Related Party Transactions — Tax Receivable Agreement.”
Contingent Valuation Rights (“CVRs”)
In connection with the acquisition of Snap One by the Investor, we issued CVRs to the sellers. Each CVR gives the holder the ability to earn cash payments based on the return of the Investor’s original investment hitting stated thresholds in relation to the proceeds received from disposition of the Investor’s initial ownership units, which collectively entitle the sellers to receive from us, in certain circumstances, payments in an aggregate of up to $25 million. The CVRs were issued at two thresholds. The first CVR is payable to the holders when the Investor’s return on investment grows to between 2.25 and 2.5 times the Investor’s original investment. The second CVR is payable to the holders when the Investor’s return on investment grows to between 2.5 and 2.67 times the Investor’s original investment. The Company records CVR obligations at fair value utilizing the Black-Scholes option-pricing model. Adjustments to the fair value of CVR liabilities are included in selling, general and administrative expenses in our consolidated statement of operations.
Seasonality
Our business experiences a moderate amount of seasonality. Sales activity is generally highest in the second quarter when our outdoor solutions, which include outdoor audio, video, surveillance and access points, come into season. Sales continue to be strong in the third and fourth quarters due to end consumers’ desire to complete home projects prior to the Thanksgiving and Christmas holidays, followed by a modest slowdown in sales activity in the first quarter due to reduced integrator activity following the holiday season. Additionally, we generally experience a modest sales lift at the end of each calendar quarter as integrators seek to meet loyalty program spend thresholds.
Critical Accounting Estimates and Policies
Our accounting policies are more fully described in Note 2 to our consolidated financial statements included elsewhere in this prospectus. Our consolidated financial statements are prepared in accordance with GAAP. The preparation of these consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, net sales, expenses and related disclosures during the reported period. In accordance with GAAP, we base our estimates on historical experience and on various other assumptions that we believe are reasonable under the circumstances. Actual results may differ from these estimates under different assumptions or conditions, and to the extent that there are differences between our estimates and actual results, our future financial statement presentation, financial condition, results of operations and cash flows will be affected. Our most critical accounting policies are summarized below. There were no significant changes to our critical accounting policies and estimates for fiscal year 2020 or fiscal year 2019.
Revenue Recognition
We sell hardware products to professional integrators, who then resell the products to end consumers, typically in the installation of an audio/video, information technology, smart-home or surveillance-related package. In certain instances, we sell specific products directly to end consumers. Our products consist of hardware products with and without embedded software, as well as third-party products. We provide services associated with product sales including the ability to access our hosted OvrC application (“hosting”), technical support, subscription services and access to unspecified software updates and upgrades. The OvrC application provides customers and integrators with a cloud-based remote management and monitoring platform to assist end consumers. These services are typically provided at no additional charge to the customer.
For product sales, revenue is recognized when the integrator or, in the case of direct sales, customer obtains control of the product, which occurs upon shipment, in an amount that reflects the consideration expected to be received in exchange for those products. For services, revenue is recognized ratably over the contract period in an amount that reflects the consideration expected to be received in exchange for those services as the integrator or customer receives such services on a consistent basis throughout the contract period. The technical support represents a series of distinct performance obligations that have the same pattern of transfer to the integrator or customer, and thus are recognized as a single performance obligation ratably over the estimated life of the related product.
Our contracts with integrators, distributors and retailers can include promises to transfer multiple products and services. Determining whether multiple products and services are considered distinct performance obligations that should be accounted for separately rather than as a combined performance obligation can require significant judgment.
For contracts with multiple performance obligations, we allocate the contract’s transaction price to each performance obligation based on the relative standalone selling price (“SSP”). Judgment is required to determine the SSP for each distinct performance obligation that is not sold separately, including technical support, customer reward programs, unspecified software updates and upgrades and hosting. In instances where SSP is not directly observable, the primary method used to estimate the SSP is the expected cost plus an estimated margin approach, under which we forecast the expected costs of satisfying a performance obligation and then add an appropriate margin for that distinct service based on margins for similar services sold on a standalone basis.
For hardware products sold with embedded software, the products are dependent on, and highly interrelated with, the underlying software, and accounted for as a single performance obligation with revenue recognized at the point in time when control is transferred to the integrator or customer, which is at the time the product is shipped. In cases where there is more than one performance obligation, a portion of the transaction price is allocated to hosting, unspecified software updates and upgrades and technical support based on a relative stand-alone selling price method, as these services are provided at no additional charge. The allocated transaction price and corresponding revenue is deferred at the time of sale and recognized ratably over the estimated life of the related devices as this method best depicts the progress towards the completion of the related performance obligation.
We offer a subscription service that allows end consumers to control and monitor their homes remotely and allows the end consumer’s respective integrator to perform remote diagnostic services. With a subscription, the integrator simultaneously receives and consumes the benefits provided by us throughout the subscription period as we make the service available for use. There is a single performance obligation associated with the subscription services and the related revenue is deferred and recognized ratably over the contract period, which is typically one year, as this method best depicts the progress towards the completion of the related performance obligation.
We generate our revenue from the sale of products and services primarily as a principal, and for certain third-party product sales, as an agent. We have determined that it is the agent for such third-party product sales where the supplier is the party responsible for ensuring fulfillment of the orders, has the obligation to mitigate any issues the customers may have with the products and has the discretion in establishing the price for the products. In such cases, we do not control the promised good before it is transferred. We record sales for which we act as an agent on a net basis.
We have various customer rewards programs (“marketing incentive programs”), which enable participants to earn points for qualifying rewards. The points are redeemed for rewards, including various prizes or product credits for future purchases. The marketing incentive programs provide the integrator or customer a material right and gives rise to a separate performance obligation. The related revenue and expense incurred are recognized at the time of redemption, expiration or forfeiture, as that is the point at which the performance obligation related to this incentive program is satisfied.
Certain integrators or customers may receive cash-based incentives or credits (“volume rebates”) which are accounted for as variable consideration. We record reductions to revenue for integrator incentives at the time of the initial sale, which is based on estimates of the sales volume customers will reach during the measured period. Revenue is recognized net of estimated discounts, rebates, returns, allowances and any taxes collected from integrators or customers, which are subsequently remitted to governmental authorities. We estimate the reduction to sales and cost of sales for returns based on current sales levels and historical return trends.
Share-Based Compensation
In August 2017, the Investor entered into an amended and restated limited partnership agreement and unitholders’ agreement. These agreements, among other things, established the distribution rights and allocation of profits and losses associated with membership units of the Investor.
In October 2017, the Investor approved the 2017 Incentive Plan. The 2017 Incentive Plan established the terms and provisions for grants of certain incentive units to employees, officers, directors, consultants and advisors of Snap One containing service-based and/or market-based vesting criteria. We recognize equity-based compensation expense on a straight-line basis over a five-year period (generally the requisite service-based vesting period subject to the grantee’s continued employment or service) in the consolidated financial statements based on the estimated fair value of the award on the grant date. For incentive units with service-based and market-based vesting criteria, compensation expense is recognized if the requisite service is rendered, regardless of whether the market condition is satisfied.
The grant date fair value of all incentive units is estimated using the Black-Scholes option pricing model and is not remeasured. The pricing model requires assumptions, which include the expected holding period, the risk-free rate of return, the expected dividend yield, discount for lack of marketability and expected volatility of the units over the expected life, which significantly impacts the fair value. We account for forfeitures as they occur.
The expected term of the incentive units is based on evaluations of historical and expected future employee behavior. The risk-free interest rate is based on the U.S. Treasury rates at the date of grant with maturity dates approximately equal to the expected life at the grant date. The discount for lack of marketability is estimated using a put option model to reflect the lower value placed on securities that are not freely transferrable. Volatility is based on the historical volatility of several public entities that are similar to the Company, as our stock is privately held and not traded on an exchange or over-the-counter market.
Income Taxes
We file a consolidated federal income tax return as well as state, local and foreign tax jurisdiction filings where we are required to file income tax returns. We account for income taxes and recognize deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the consolidated financial statements or the income tax returns. Under this method, deferred income tax assets and liabilities are recognized based on the differences between the consolidated financial statement amounts and income tax basis of assets and liabilities using enacted tax rates in effect for the period in which the differences are expected to be recovered or settled. Valuation allowances are established, when necessary, to reduce deferred income tax assets to the amount expected to be realized. See Note 13 to our consolidated financial statements included elsewhere in this prospectus.
We record liabilities for income tax positions taken, or expected to be taken, when those positions are deemed uncertain to be upheld upon examination by taxing authorities. Interest and penalties, if incurred, would be recorded within the income tax provision in the accompanying consolidated statements of operations.
Business Combinations
All of our acquisitions have been accounted for under ASC 805, Business Combinations. Accordingly, the accounts of the acquired companies, after adjustments to reflect fair values assigned to assets and liabilities, have been included in the consolidated financial statements from their respective dates of acquisition. We record purchase price in excess of amounts allocated to identifiable assets and liabilities as goodwill. Goodwill includes, but is not limited to, the value of the workforce in place, ability to generate profits and cash flows, and an established going concern.
Customer relationships have been valued using the multi-period excess earnings method, a derivative of the income approach. The multi-period excess earnings method estimates the discounted net earnings attributable to the customer relationships that were acquired after considering items, such as possible customer attrition. Estimated useful lives were determined based on the length and trend of projected cash flows. The length of the projected cash flow period was determined based on how quickly the customer relationships are expected to amortize, which is based on our historical experience in renewing and extending similar customer relationships and future expectations for renewing and extending similar existing customer relationships. The useful life of the customer relationships intangible assets represents the number of years over which we expect the customer relationships to economically contribute to the business.
The trade names have been valued using the relief from royalty method under the income approach to estimate the cost savings that will accrue to us, which we would otherwise have to pay royalties or license fees on revenue earned through the use of the assets. Estimated useful lives were determined based on management’s estimate of the period the name will be in use.
Technology has been valued using the relief from royalty method to value technology related to three major categories: Other Home Automation, Lighting, and Speakers. The relief from royalty method, a derivative of the income approach, was used to estimate the cost savings that will accrue to us, which we would otherwise have to pay royalties or license fees on revenue earned through the use of the asset. Estimated useful lives were determined based on management’s estimate of the period the technology will be in use.
Inventories, Net
Inventory is stated at the lower of cost or net realizable value, cost being determined under the moving-average method of inventory, first-in, first-out (FIFO) basis of inventory and specific identification basis of inventory. Inventory costs include the net acquisition cost from the factory, the cost of transporting the product to our warehouses and product assembly costs. Reserves for slow-moving and obsolete inventories are provided on historical experience, inventory aging and product demand. Our reserve estimates require us to make assumptions based on the current rate of sales, age, salability of inventory and profitability of inventory, all of which may be affected by changes in our product mix and consumer preferences. We do not believe there is a reasonable likelihood that there will be a material change in the assumptions we use to calculate our inventory reserves. However, if actual results are not consistent with our estimates and
assumptions, we may be exposed to losses or gains that could be material. We evaluate the adequacy of these reserves and make adjustments to reserves, as required.
Goodwill and Intangible Assets
Goodwill and identifiable indefinite-lived intangible assets are tested for impairment annually as of the end of the third quarter of each fiscal year, or more frequently upon the occurrence of certain events or substantive changes in circumstances that indicate impairment is more likely than not.
In assessing potential goodwill impairment, we may first assess qualitative factors to determine whether events or circumstances indicate it is more likely than not that the fair value of our net assets is less than the carrying amount of our single reporting unit. If the qualitative factors indicate it is more likely than not that the fair value of net assets is less than its carrying amount, we perform a quantitative impairment test. In the quantitative assessment, we compare the fair value of the reporting unit to its carrying value. We estimate the fair value of the reporting unit using generally accepted valuation techniques which include a weighted combination of income and market approaches. The income approach incorporates a discounted future cash flows analysis with key assumptions in the cash flow model for future net sales, operating costs, working capital changes, capital expenditures and a discount rate that approximates our weighted-average cost of capital. The market approach considers our results of operations and information about our publicly traded competitors, such as earnings multiples, making adjustments to the selected competitors based on size, strengths and weaknesses, as well as publicly announced acquisition transactions.
Our valuation methodology for assessing impairment requires management to make judgments and assumptions based on historical experience and projections of future operating performance. If these assumptions differ materially from future results, we may record impairment charges in the future.
We performed annual impairment tests for goodwill and indefinite lived intangible assets on September 25, 2020 and September 27, 2019, and concluded that there was no impairment.
We review identifiable definite-lived intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. For fiscal years 2020 and 2019, we determined that there were no indicators of impairment relating to identifiable definite lived intangible assets.
Warranties
We provide assurance-type warranties on most of our proprietary products covering periods that vary between one year and the lifetime of the product. The warranties cover products that are defective under normal conditions of use and are in-line with industry standards. We estimate the costs that may be incurred under these warranties and record the liability at the time product sales are recorded. The warranty liability is primarily based on historical failure rates and costs to repair or replace the product, including any necessary shipping costs.
Contingent Valuation Rights (“CVRs”)
In connection with the acquisition of Snap One by the Investor, we issued CVRs to the sellers. Each CVR gives the holder the ability to earn cash payments based on the return of the Investor’s original investment hitting stated thresholds in relation to the proceeds received from disposition of the Investor’s initial ownership units. The CVRs were issued at two thresholds. The first CVR is payable to the holders when the Investor’s return on investment grows to between 2.25 and 2.5 times the Investor’s original investment. The second CVR is payable to the holders when the Investor’s return on investment grows to between 2.5 and 2.67 times the Investor’s original investment. The Company records CVR obligations at fair value utilizing the Black-Scholes option-pricing model. Adjustments to the fair value of CVR liabilities are included in selling, general and administrative expenses in our consolidated statement of operations.
Quantitative and Qualitative Disclosures about Market Risk
Our earnings and financial position are exposed to financial market risk, including those resulting from changes in interest rates and market concentration risk.
Interest Rate Risk
We are subject to interest rate risk in connection with our Credit Agreement. As of December 25, 2020, we had $672.6 million outstanding under the term loan portion of the Credit Agreement. The term loans bear interest at variable rates. After taking into account our interest rate caps: (i) an increase of 100 basis points in the variable rates on the amounts outstanding under the Credit Agreement as of December 25, 2020 would have increased annual cash interest in the aggregate by approximately $7.1 million; and (ii) a decrease of 100 basis points in the variable rates would have decreased annual cash interest in the aggregate by approximately $5.8 million. Please refer to “— Liquidity and Capital Resources — Debt Obligations” for information regarding the interest rate cap agreement that we entered into to guard against unexpected increases in LIBOR on a portion of our variable-rate term loans and limit our exposure to interest rate variability.
Foreign Currency Exchange Risk
Substantially all of our net sales and operating expenses are currently denominated in U.S. dollars. An immediate 10% increase or decrease in the relative value of the U.S. dollar as compared to other currencies in the foreign jurisdictions in which we operate would not have a material effect on our operating results.
Recent Accounting Pronouncements
Refer to Note 2 to our consolidated financial statements included elsewhere in this prospectus for information regarding recently issued accounting pronouncements.
Emerging Growth Company Status
We qualify as an “emerging growth company” as defined in the JOBS Act. An emerging growth company may take advantage of reduced reporting requirements that are not otherwise applicable to public companies. These provisions include, but are not limited to:
•
being permitted to present only two years of audited financial statements and only two years of related “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this prospectus;
•
not being required to comply with the auditor attestation requirements on the effectiveness of our internal controls over financial reporting;
•
not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (auditor discussion of critical audit matters);
•
reduced disclosure obligations regarding executive compensation arrangements in our periodic reports, proxy statements and registration statements, including in this prospectus; and
•
exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
We may use these provisions until the last day of our fiscal year in which the fifth anniversary of the completion of this offering occurs. However, if certain events occur prior to the end of such five-year period, including if we become a “large accelerated filer,” our annual gross revenues exceed $1.07 billion, or we issue more than $1.0 billion of nonconvertible debt in any three-year period, we will cease to be an emerging growth company prior to the end of such five-year period.
We have elected to take advantage of certain of the reduced disclosure obligations in the registration statement of which this prospectus is a part and may elect to take advantage of other reduced reporting requirements in future filings. As a result, the information that we provide to our stockholders may be different than the information you receive from other public companies in which you hold stock.
The JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards until those standards apply to private
companies pursuant to 17 C.F.R. Section 200.83. We have elected to take advantage of the benefits of this extended transition period and, therefore, we will not be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies. Our financial statements may therefore not be comparable to those of companies that comply with such new or revised accounting standards. Until the date that we are no longer an emerging growth company or affirmatively and irrevocably opt out of the exemption provided by Section 7(a)(2)(B) of the Securities Act of 1933, as amended, upon issuance of a new or revised accounting standard that applies to our financial statements and that has a different effective date for public and private companies, we will disclose the date on which we will adopt the recently issued accounting standard.
Internal Controls Over Financial Reporting
As an emerging growth company, we are still in the process of developing our internal processes and procedures to accommodate our rapid growth in recent years. In the course of preparing the consolidated financial statements that are included elsewhere in this prospectus, our management determined that we have a material weakness in our internal controls over financial reporting. This material weakness primarily relates to our failure to design and maintain effective controls over certain information technology (“IT”) general controls for information systems and applications that are relevant to the preparation of our consolidated financial statements. The IT deficiencies that management is aware of relate to change management and access controls and, when aggregated, could impact effective segregation of duties as well as the effectiveness of IT-dependent controls. The deficiencies could result in a misstatement of one or more account balances or disclosure potentially leading to a material misstatement to the annual or interim consolidated financial statements which may not be prevented or timely detected and, accordingly, management determined that these control deficiencies constitute a material weakness.
We have concluded that this material weakness in our internal controls over financial reporting occurred because, prior to this offering, we were a private company and did not have the internal controls necessary to satisfy the accounting and financial reporting requirements of a public company.
In order to remediate this material weakness, we have taken and plan to take the following actions:
•
continuing to hire personnel with public company experience and providing additional training for our personnel on internal controls as our company continues to grow;
•
implementing additional controls and processes, including those that operate at a sufficient level of precision and frequency or that evidence the performance of the control;
•
implementing processes and controls to better identify and manage segregation of duties;
•
considering system enhancements to reduce reliance on manual processes; and
•
engaging an external advisor to assist with evaluating and documenting the design and operating effectiveness of internal controls and assisting with the remediation of deficiencies, as necessary.
We and our independent registered public accounting firm were not required to, and did not, perform an evaluation of our internal controls over financial reporting as of December 25, 2020 or any prior period in accordance with the provisions of the Sarbanes-Oxley Act. Accordingly, we cannot assure you that we have identified all, or that we will not in the future have additional, material weaknesses. Material weaknesses may still exist when we report on the effectiveness of our internal controls over financial reporting as required under Section 404 of the Sarbanes-Oxley Act after the completion of this offering.
BUSINESS
Our Vision
Bringing together people, integrators and products to deliver joy, connectivity and security in our everyday lives.
Company Overview
Snap One powers smart living by enabling professional integrators to deliver seamless experiences in the connected homes and small businesses where people live, work and play. The combination of our end-to-end product ecosystem and our technology-enabled workflow solutions, which we refer to as our “Only Here” strategy, delivers a compelling value proposition to our loyal and growing network of over 16,000 professional do-it-for-me (“DIFM”) integrators. We believe that Only Here can integrators access a leading, comprehensive suite of products and software solutions that enable a “one-stop shop” experience. Only Here can integrators support their customers via our industry-leading remote management software platform, which reaches approximately 345,000 active homes and businesses as of March 26, 2021. Only Here can integrators enjoy the convenience of an e-commerce centric, omni-channel offering to support their workflow. Only Here can our third-party product partners efficiently access our expansive integrator network and integrate into the broader Snap One product and software ecosystem. By partnering with Snap One, integrators can focus on their trade and leverage the tools and infrastructure that we deliver to build thriving and profitable businesses. We believe our Only Here value proposition becomes embedded into integrators’ workflow throughout the project lifecycle, creating re-occurring spending patterns that strengthen our integrator relationships and enhance our revenue visibility across our integrator base. Snap One was founded by integrators for integrators and we believe our Only Here experience makes us integrators’ partner of choice.
Our world has become technology-centric. The home’s evolving importance as a place to live, work and play, is fueling accelerated investment in smart living solutions. The smart living market continues to develop and currently reflects a highly fragmented set of point products and services from a broad universe of industry participants. While continued innovation drives consumer awareness of smart living experiences, it also creates significant complexity and challenges for end consumers and professionals seeking immersive, integrated and supported systems. As a result, end consumers are increasingly turning to professionals to design, install, configure and enable personalized, user-friendly smart living experiences. Similarly, we believe professional integrators are seeking to standardize on technology-enabled platforms that enable them to operate successful businesses and to deliver high-quality smart living solutions for their customers.
Snap One is the partner of choice for professional integrators. Our leading end-to-end ecosystem of over 2,800 proprietary SKUs, alongside a curated set of third-party products, provides differentiated portfolio depth and the convenience of a “one-stop shop” experience for our integrators. Our industry-leading software solutions enhance the interoperability of our products and enable our emerging portfolio of value-added, subscription-based services sold to end consumers. We are vertically integrated, with approximately 70% of fiscal year 2020 net sales coming from our proprietary-branded, internally developed products that are only available to integrators directly from Snap One. These proprietary products are manufactured on an asset-light basis through our network of contract manufacturing and joint development suppliers located primarily in Asia and support our strong net sales of $814.1 million and Contribution Margin of 41.7%, in each case during fiscal year 2020. In addition, we support our integrators with a comprehensive suite of technology-enabled workflow solutions. We engage with our integrators on an omni-channel basis, blending the benefits of our comprehensive e-commerce portal with the convenience of our local branch network for same-day product availability. We support our integrators throughout the entire lifecycle of their projects from pre-sale product research and system design to post-installation end consumer support via our proprietary OvrC software, which enables integrators to remotely manage, configure and troubleshoot devices in the field. We believe our solutions make it easier for professional integrators to operate and profitably grow their businesses, contributing to increased retention and wallet share growth with us over time. We believe our Only Here value proposition creates entrenched relationships and re-occurring spending patterns with our integrators. We believe these favorable integrator dynamics yield an attractive financial profile with a high degree of visibility into integrators’ spending patterns.
Our Market Opportunity
The world has become more connected, with technology touching everything we do. The continued evolution, enhancement, and ease of use of connected technology is providing homeowners and businesses access to previously unimagined experiences. With this unprecedented access and growing demand, end consumers are now faced with overwhelming complexity as they try to select dozens of devices out of the thousands of available point products to create the experiences they desire.
The growing global residential and commercial technology market is comprised of Do-it-Yourself (“DIY”) and Do-It-For-Me (“DIFM”) end consumer spend, which Frost & Sullivan estimates is expected to grow at a 9.3% compound annual growth rate from $329.2 billion in 2020 to $513.1 billion in 2025.
The DIFM sub-market that we serve is distinct from the DIY sub-market, and is characterized by consumers with higher expectations, more complicated projects, higher disposable income, and use of professionals in other parts of their lives. DIFM consumers typically spend $10,000 to $20,000 for professional integrators to design, select the best products, and install and configure these systems. Each of these projects represents an opportunity for Snap One to provide the products the integrator needs to serve their customers.
Consumers’ increasing desire to have an integrated, turnkey, easy-to-use system is expected to drive growth in the DIFM sub-market of the market across home technology, security, and commercial; Frost & Sullivan estimates that integrator spend in the domestic DIFM sub-market (consisting of home technology, security, and commercial) will grow at an 8.7% compound annual growth rate from $43.0 billion in 2020 to $65.2 billion in 2025.
We believe the following trends will continue to accelerate the global home technology market and to support the increasing importance of the DIFM integrator to deliver the experiences that end consumers seek.
Increasing Awareness and Adoption of Smart Living Solutions
Consumer adoption of smart living solutions continues to rise, driven by increasing access to high-speed internet service and growth in smart connected devices, streaming services, voice assistants and simple and unified control experience. Well-known technology leaders such as Alphabet, Amazon and Apple have created innovative and affordable point products that have broadened access to entry level smart living experiences and increased interest in the full potential of the home. The desire to be able to control your sound volume through a traditional remote control has evolved into an expectation that lighting, temperature, music, entertainment, security, consumer appliances and more respond to a user’s needs proactively or create a bespoke experience with the single push of an icon on an app or a voice command. According to Statista, smart home penetration in the United States is expected to increase to 57% in 2025 from 37% in 2020, and we believe consumers will increasingly demand more complete and complex systems.
Growing Desire for Entertainment, Security, Comfort and Energy Efficiency in the Home
Now more than ever before, people live, work and play at home. As a result, there is a growing demand to enhance the at-home experience with immersive, simple, integrated and supported products and systems. For example, end consumers want:
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High-end home entertainment systems to support direct-to-streaming movie releases;
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Multi-room audio systems to stream and listen to their favorite music from any place with the click of a button on their phone;
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Home security and video surveillance with smart phone and tablet accessibility to help ensure their family stays safe;
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Smart lighting, shades, heating and cooling systems to manage their environment and make their home more energy efficient;
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Reliable whole-home networks that ensure connectivity for multiple simultaneous uses by the entire family such as video conferencing indoors while streaming a movie in the backyard; and
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Intuitive and flexible control solutions unify the interactive experience in the home.
Consumer Pain Points Driving Increasing Need for Professional Integrators
The direct-to-consumer smart living product category is highly fragmented, with thousands of disparate, unintegrated point products across multiple categories resulting in an experience that is often frustrating, complicated and time-intensive for the end consumer. Mass market DIY products are intended to meet single-point tasks, and are not generally designed to seamlessly integrate across multiple manufacturers into a fully personalized smart living solution, nor to meet the exacting needs of high-end purchasers. In addition, end consumers lack awareness of all the mission critical infrastructure, networking and control products, and the software required to create an integrated system, and also lack the time and expertise to install and troubleshoot these products. We believe a large and growing segment of end consumers want the best available smart living experience and they are willing to pay for professional assistance to create a fully integrated, comprehensive system and to maintain, service, and upgrade their systems over time. We believe the importance of integrators will continue to grow as they become an increasingly critical specialist to end consumers.
Challenges for Integrators Driving Need for a Partner that is a One-Stop Shop for All Their Needs
The typical integrators we serve are small- to medium-sized businesses that enable smart living. They are experts at designing, installing, and servicing complex, fully-integrated connected home and business systems, which include products such as audio, video, surveillance, lighting, home automation, and more for both homeowners and commercial customers. These integrators serve DIFM consumers who typically spend $10,000 to $20,000 per job. In addition, integrators do not typically hold inventory, requiring them to place multiple orders to procure the products and software needed for each job.
Due to their small size, integrators often face significant challenges to meet the needs of their end customers and run their businesses efficiently. These challenges include tracking thousands of products across multiple suppliers needed for each job, keeping up with the latest product trends, and understanding how to install, integrate, and support these highly complex and evolving technologies. As a result, integrators need a partner that can serve as a one-stop shop for the products, software, tools, and training that they need day in and day out to efficiently operate their businesses and deliver great experiences for end consumers.
Our Differentiated Solution
We believe our integrated platform of products, software, and technology-enabled solutions that are embedded into the integrator’s workflow is unmatched in the industry. We simplify the challenges associated with designing a smart living system and enable our integrators to create optimal solutions that are cohesive, functional, and efficient. Every decision we make is through the lens of helping integrators run their business more efficiently while delivering immersive smart living experiences. This results in a long-term partnership in our shared mission to bring joy, connectivity and security into end consumers’ everyday lives.
Our End-to-End Product Ecosystem
We provide integrators with a leading, comprehensive suite of connected, infrastructure, entertainment, and software solutions so the entire smart living experience is exceptional for the end consumer. Our product and service offerings encompass all of the design elements required by integrators to build integrated smart living systems that are easy to install and simple to manage, serving the needs of both integrators and end consumers. Our deep relationships with our integrators provides us the real-time feedback that allows us to continuously improve our offerings.
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Proprietary Products and Software. We have developed a broad range of over 2,800 proprietary SKUs that encompass the spectrum of solutions needed to deliver integrated smart living systems. These products and software are sold under our proprietary brands such as Araknis, Control4, and Wattbox and are only sold through Snap One with confidential wholesale prices that allow integrators to maximize their profitability. Our products and software are designed to meet the unique needs of both the integrator and the DIFM end consumer. We do this by delivering a high quality and reliable
cross-category integrated solution that connects easily to our proprietary solutions and third-party products. In addition, our solutions have built-in firmware to allow for a high degree of configurability with useful management tools, which make it easy for integrators to provide mission critical post-installation support. Through our proprietary software, Control4 OS3 and OvrC, we allow integration with thousands of products manufactured by hundreds of third-party manufacturers and our products are compatible with connected devices from leading brands such as Alphabet, Amazon and Apple, allowing end consumers to enjoy and control their integrated Snap One system with the products and devices they know and love.
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Third-Party Products. In addition to our proprietary solutions, we have partnered with and sell a curated set of leading third-party products from brands such as Alphabet, Amazon, KEF, Klipsch, Lutron, Samsung, Sony, Sonos, Ubiquiti and Yamaha, which provide our integrators a one-stop shop for their product needs. We believe this increases the value we deliver to our integrators, grows the usage of our technology-enabled workflow solutions, and drives integrator retention and growth. Our third-party product offerings also deliver significant value to our third-party partners. We provide these third-party partners with differentiated access to our expansive network of integrators through our omni-channel model and compatibility with our leading software solutions, which ensures those products can be seamlessly integrated into a system and easily supported after installation.
Our Technology-Enabled Workflow Solutions
Our differentiated technology and software-enabled workflow tools have been designed to support the integrator throughout the project lifecycle, enhancing their operations and helping them to profitably grow their businesses. We believe our suite of embedded solutions is truly unique, further differentiating Snap One from the rest of the smart living market, and driving stickiness and wallet share growth with integrators.
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Integrator Job Lifecycle Service and Support. We provide comprehensive certification and award-winning training and support services, enabling integrators’ ongoing success and business efficiency. Our comprehensive services are delivered through multiple channels, including through our cloud software, on our e-commerce portal and at our local branches, and encompass every step of the integrator job lifecycle from research and training through post-installation support. For example, we have remote management solutions that enable continuous end consumer system monitoring and management and significantly reduce or eliminate time-consuming and costly post-installation troubleshooting for the integrator. Additionally, we have a dedicated team of technical experts who help integrators with product awareness, product training and on-the-job troubleshooting support to ensure the best solutions are delivered in the right way to end consumers. We believe the 16 CE Pro Quest for Quality Awards we won in 2021 are a testament to the value of our service and support programs for integrators.
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Cloud-Based Software. We have developed a suite of proprietary cloud-based software solutions that are embedded in the integrator’s workflow through the lifecycle of a project and enable remote management and monitoring of connected devices after installation. Our Control4 Composer tool provides an easy-to-use interface that helps integrators configure highly customized control systems for end consumers. OvrC is a free, cloud-based software, which enables integrators to remotely monitor, troubleshoot and manage connected devices on a system. While OvrC is free to integrators, we utilize its strong functionality and presence with end consumers to enable Parasol, which is our subscription-based remote monitoring service for end consumers. By utilizing these software tools, integrators can significantly increase efficiency by reducing the need for service calls and ensuring that their customers’ mission-critical systems are installed properly and supported thereafter, resulting in continuous highly personalized, immersive experiences.
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Omni-Channel Model. We provide a comprehensive e-commerce portal for smart living, which is tailored to allow integrators to research products, design projects, receive training and certifications, order products, and solicit ongoing support. It provides targeted content and compelling stories to drive meaningful interactions with integrators who typically visit the portal ten times to research, train, design, and build an estimate for each purchase they ultimately make. We supplement our e-commerce portal with a growing footprint of 26 local branches as of March 26, 2021. These local branches are key to supporting our growth strategy and delivering additional value to integrators by
ensuring they can receive critical products on a same-day basis to support project requirements, while attending in-person trainings and using local demonstration rooms to test new products.
The integration of our end-to-end product and software ecosystem and technology-enabled workflow solutions drives industry-leading efficiency for our integrators. Our tools support efficient integration, empowering our integrators to focus on the next install, rather than on maintaining the last install. We believe we set the industry standard for ease of use for integrators, which we believe drives loyalty and increased use of our platform over time. During fiscal year 2020, our net dollar retention rate was over 100% for domestic integrators, highlighting the re-occurring nature of our business model as integrators continue to do business with Snap One. For domestic integrators who purchased from us in fiscal year 2019, “net dollar retention” is the fiscal year 2020 spend of those integrators divided by their fiscal year 2019 spend.
Our Competitive Strengths
We believe the following competitive strengths distinguish us from our competitors and position us for continued leadership in enabling connectivity in the home:
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Partner of Choice for Smart Living Integrators. Snap One was founded by integrators for integrators. We designed our integrated platform through the lens of the integrator to enhance their operations by simplifying the product purchasing experience and delivering high-quality products at a good value, while at the same time providing technology-enabled tools and support services to help them run their businesses more efficiently. We believe our ability to deliver both the product breadth and technology solutions that support the integrator’s workflow is unique in our category. Snap One is a leading partner for professional integrators, transacting with over 20% of the domestic DIFM market. We believe our strong position with integrators is supported by our industry-leading NPS of 55 among domestic integrators who have purchased from Snap One between March 2020 and March 2021, compared to competing brands’ average NPS of -2. In addition to a strong position with our integrators as evidenced by our NPS, approximately 75% of our fiscal year 2020 e-commerce portal net sales came from integrators who have been our customers for at least five years (as represented by integrators whose first purchase was made in fiscal year 2015 or prior). We are passionate about providing integrators the best products, software, and technology-enabled workflow solutions to allow them to deliver entertainment security, comfort, and energy efficiency experiences to their customers.
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Self-Reinforcing Flywheel Drives Re-Occurring Growth. We believe our significant scale combined with our high frequency, re-occurring and multi-layered relationship with our integrators drives profitable growth and a deep, up to the minute understanding of the evolving needs of integrators and end consumers. This scale and insight fuels our investment in the sales experience and innovation across our end-to-end product and software ecosystem and our differentiated technology-enabled workflow solutions, which further reinforces our strong integrator relationships. This creates a self-reinforcing flywheel and is the key engine of our re-occurring revenue and growth. As we innovate, we make the integrator more efficient and provide end consumers with solutions and experiences that enhance the places they live, play, and work. This in turn helps accelerate industry adoption, which drives strong growth for Snap One as integrators continue to return to us for all smart living needs project after project.
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End-to-End Ecosystem of Products and Software. We have built an end-to-end ecosystem across a broad portfolio of proprietary products and software that integrate with leading third-party products. Our over 2,800 proprietary SKUs, which represented over 70% of our fiscal year 2020 net sales, are sold under exclusive brands and in many cases are acknowledged as best in their category by industry groups. In addition to our proprietary products, we sell and integrate with a curated set of leading third-party products from brands such as Alphabet, Amazon, KEF, Klipsch, Samsung, Sony, Sonos, Ubiquiti and Yamaha, which have the capability to integrate into the broader Snap One product and software ecosystem. With our full suite of infrastructure, connected, entertainment, and software solutions that deliver great experiences to end consumers, integrators can find everything they need in one place and deliver high-quality, reliable, and configurable smart living systems to end consumers.
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Innovation to Drive Continuous Improvement. We have a proven track record of innovation through significant investments in research and development (“R&D”) to build a robust, integrated platform
of proprietary products, software, and technology-enabled workflow solutions that power the smart living experience. Our product and software development process fosters an innovation feedback loop whereby we utilize the user and integrator feedback and learnings from our cloud software to continually enhance existing solutions to meet the demands of the connected homes and businesses of tomorrow. We believe this feedback loop combined with our joint-development model of partnering with manufacturers around the latest technologies, allow us to rapidly and efficiently bring new technology to market with lower R&D risk to Snap One. As of March 26, 2021, we had over 100 active issued patents and over 100 trademarks protecting our proprietary brands. Our strong product and software development engine is supported by a team of over 275 product development employees and 135 software engineers who have helped us introduce 450 new hardware and software releases on average per year during fiscal years 2020 and 2019.
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Technology-Enabled Solutions Embedded in the Integrator Workflow Make it Easier to Do Business. Our mission is to empower integrators to make it easier for them to profitably grow their businesses and deliver best-in-class immersive experiences to end consumers. Our scale allows us to continue to invest in and develop differentiated technology tools that are embedded into the integrator’s workflow to support their needs throughout the project lifecycle. Our e-commerce platform has rich content to inform product research, design tools to enhance project planning, training materials and installation guides, and a robust forum where integrators can learn about and discuss solutions and technical issues before and during installation. We supplement this content with an experienced team of customer and technical support employees, receiving the Quest for Quality Awards of Best Customer Service (#1 Platinum) and Best Technical Support (#2 Gold) in 2021. We also offer a suite of proprietary cloud-based software solutions. These solutions include Composer, which allows integrators to configure the logic rules of a connected home or business and OvrC, which gives integrators the ability to manage all connected devices remotely post install without a service call; and OvrC Home, which allows integrators to use software to give the power of the typical support functions directly to end consumers. We believe these technology tools and services drive robust stickiness as integrators build their businesses around these capabilities and train their employees to use our software and products.
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E-Commerce Driven, Omni-Channel Strategy. Our business model is built around an e-commerce centric, omni-channel go-to-market strategy. We provide a comprehensive e-commerce portal, which allows integrators to easily research products, design projects, receive training and certifications, order products, and solicit ongoing support. Our e-commerce portal is complemented by an extensive network of 26 local branches and seven distribution centers, as of March 26, 2021. For the twelve months ended March 26, 2021, we opened or acquired five net new local branches, and we expect to continue to expand in the future. The local branch presence is an important part of our strategy as it allows us to better serve integrators locally by providing same day product availability when necessary, while creating a site for relationship building, training and product demonstration sessions. We believe integrators value the relationships and support we deliver at the local level, and this further increases their loyalty with our business across channels.
Our Growth Strategy
We believe that end consumers need a professionally integrated platform for the next generation of smart living spaces that consists of the best products, services and software to deliver personalized, immersive experiences. The following are the central pillars to our growth strategy that we believe will enable us to provide integrators and end consumers with the solutions and workflow tools that will power the smart living spaces of tomorrow:
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Consistent Innovation with New Products and Software Solutions. Our award-winning products and software and shared product development model are key drivers of our success to date. Our close relationship with our integrator base and learnings from our cloud-based software provide a continuous feedback loop to drive ongoing product and software enhancements. As integrators acquire and install our products and software solutions, they are consistently providing us with feedback on their experience and the experience of the end consumer. This feedback has enabled us to identify and enter attractive market segments such as speakers and networking, develop new products, and improve existing products. We will continue to invest in enhancing our product suite and bolstering our
underlying software, and developing technologies to make integrators more efficient, which is critical to delivering the best solutions for our integrators and end consumers.
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Drive Wallet Share Gains with Existing Integrators. While our network of over 16,000 domestic DIFM integrators that we transact with is large, we believe we have a significant wallet share expansion opportunity with our existing integrator base. Across our entire base of domestic integrators, we capture on average approximately $40,000 of annual spending and those integrators purchase on average approximately eight different product categories from us. Over time, we typically grow integrators’ wallet share with us, as exemplified by the top ten percent of our domestic integrators spending on average approximately $240,000 annually across approximately 17 different product categories with us. This is compared with Frost & Sullivan’s estimate of over $600,000 in average annual product spend for all domestic integrators. This suggests we have significant room to grow sales by increasing wallet share with existing integrators. Average wallet share with our integrators varies across DIFM markets, with particular strength in home technology, and demonstrated success in commercial and security. In a survey conducted by Frost & Sullivan, integrators indicated that on average they purchase product from twelve sources, and approximately 20% of respondents indicated that Snap One was their most used source for installation equipment from March 2020 to March 2021, more than twice the share of the next highest source. As we continue to expand our omni-channel coverage, extend our product suite, bolster our support services, and create deeper integration across our products, we believe we will be able to drive continued wallet share gains by making it compelling for integrators to use Snap One as their primary one-stop shop.
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Grow Our Network of Integrators. We have a leading market share within our core domestic home technology market, and our product portfolio and integrator support is designed to expand into attractive adjacent markets. We are making investments to grow our network of integrators across home technology and the attractive security and commercial markets, where we have low market penetration today, given that our network consists of over 16,000 of the over 70,000 domestic DIFM integrators. According to Frost & Sullivan, integrator spend in the domestic DIFM security and commercial markets represented more than $36.2 billion in 2020 and is expected to grow to more than $52.8 billion in 2025, representing a compound annual growth rate of 7.8%. We expanded internationally with our merger with Control4, and international net sales accounted for 11.6% of our net sales in fiscal year 2020. According to Frost & Sullivan, the integrator spend in the international DIFM (consisting of home technology, security, and commercial) market in 2020 was more than $106.2 billion.
To support the expansion of our integrator network, we continue to invest in the build-out of our local branch footprint in attractive markets. By expanding this local branch footprint, we are able to attract new integrators locally across home technology, security and commercial as well as better serve existing integrators with enhanced services and support. In addition, we believe the market for continued geographic expansion represents a significant opportunity for Snap One given our modest presence outside North America today.
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Efficiently Expand Our Software Solutions and Subscription-Based Revenue Models. As we expand our penetration of connected homes and businesses domestically, we will continue to invest in the expansion of existing and development of new subscription-based services. Given the reach of OvrC with approximately 345,000 active homes and businesses on the platform as of March 26, 2021, we can efficiently reach a large base of potential end consumers for subscription-based services.
We see a significant opportunity to grow our Parasol remote management services business, which is powered by OvrC. Parasol is a subscription-based service sold to homeowners and small businesses through integrators for access to a continuous remote support service to troubleshoot devices on their network. We also aim to invest in and expand our penetration of the subscription-based 4Sight service that is enabled by our Control4 software, which allows homeowners and small businesses to remotely access and control their smart living system from any place at any time. For example, using 4Sight, a homeowner can remotely unlock their security gate to allow for a critical package delivery while at work and re-lock the gate once the delivery is complete. We believe our leadership position and expanding presence in the home will allow us to develop new high margin, recurring software-driven services.
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Continue to Pursue Accretive Acquisitions. Our disciplined acquisition strategy is core to our growth with past acquisitions complementing our product suite and expanding our nationwide coverage. Over the last five years, we have successfully completed and integrated more than ten acquisitions targeting new products and geographies and enhancing our workflow solutions. We will continue to pursue future acquisitions that selectively enhance our products, software and workflow solutions and expand into adjacent markets that allow us to serve our integrator base. We believe our network of third-party products as well as our close relationships with our integrators allow us to source a large pipeline of potential acquisition opportunities.
Our Integrated Platform
Our end-to-end product and software ecosystem and technology-enabled workflow solutions create an integrated platform of leading offerings, which drives significant value for our integrators and personalized, immersive experiences for end consumers.
Our End-to-End Product Ecosystem
Our leading portfolio of interconnected products (both proprietary as well as a curated selection of third-party products) and software solutions help connect, control, entertain and power homes and businesses. We sell over 4,300 proprietary SKUs and our brands received 36 #1 or #2 CE Pro Brand Leader Awards in 2021 of CE Pro’s 62 identified sub-categories in the audio, video, networking/connectivity, control and automation, home enhancements, security and integrator support categories. In addition to our comprehensive suite of proprietary products, our curated portfolio of third-party products (including brands like Alphabet, Amazon, KEF, Klipsch, Samsung, Sony, Sonos, Ubiquiti and Yamaha) provides integrators with the resources to deliver comprehensive, personalized smart living systems for end consumers.
Our connected products, including our third-party products, integrate with one another through our software connectivity solutions. Our full product portfolio is also compatible with connected devices from leading brands like Alphabet, Amazon and Apple. End consumers receive superior control, functionality, and support when they hire an integrator that partners with Snap One. Our systems and deep relationships with integrators allow us to collect real-time feedback to guide our product development process, helping ensure that we provide the most effective products for our integrators to serve their needs.
Our Products
We sell products under exclusive brands that are only sold through Snap One, as well as leading third-party products, to provide our end consumers with personalized smart living solutions. We sell unique and functional consumer-facing products, along with innovative infrastructure solutions to enable customized and efficient installation for our integrators. Our products are designed to meet the needs of professional integrators and the distinct consumer segment they serve by delivering reliability, a high degree of configurability, useful management tools and great experiences that delight consumers and make it easy for integrators to provide post-installation support. We also have confidential wholesale prices that allow integrators to price projects based on the premium service they provide and avoid detailed negotiations based on item level pricing. Our comprehensive proprietary and third-party product portfolio provides a one-stop shop experience for our integrators in order to ensure that they are able to purchase all products needed for projects through our platform. Over the years, integrators have come to us knowing they can benefit from our superior value proposition through access to our leading proprietary products, as well as a selection of the best third-party products in the marketplace.
Our product portfolio extends across the Connected, Entertainment and Infrastructure product categories:
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Connected. We provide technology products that connect to the network and directly enable the personalized experiences that our end consumers desire. Our Connected portfolio is enhanced by our proprietary software offerings. Our remote management software OvrC enables our integrators to remotely manage devices, update firmware and troubleshoot hardware on the network. Additionally, our Control4 OS3 software enables the integration of audio, video, lighting, temperature, security and communications for a unified consumer experience. End consumers directly interface with these
connected solutions via touch panels, remotes and lighting keypads. Our Connected product portfolio includes the following:
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Networking. Our networking products provide wired and Wi-Fi connectivity solutions that enable robust networks to support bandwidth-intensive applications.
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Control and Lighting. Our control and lighting products enable the unified management of a home or business through a single user interface.
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Surveillance. Our surveillance products provide next-generation security solutions and video analytics to deliver peace of mind to end consumers.
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Power. Our IP-enabled power products provide critical infrastructure to operate reliable and flexible automation systems.
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Entertainment. We provide a range of high-quality Entertainment products for indoor and outdoor solutions to deliver immersive experiences for end consumers. Our Entertainment products are designed to deliver on the desired end consumer expectations while also providing ease of use and installation efficiency for our integrators. Our outdoor Entertainment products contain specialized features, including weatherization, to enrich backyard experiences for our end consumers. Our Entertainment product portfolio includes the following:
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Audio and Video Products. Our audio and video products include premium sound systems, amplifiers, televisions, projectors and optimized screens. These products are integral in bringing experiences to life for consumers throughout homes and businesses, whether it is centralized in a home theater, expansive through multiple audio zones, or enriching backyard entertainment.
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Media Distribution. Our media distribution products provide the foundation for our entertainment systems and enable comprehensive and personalized experiences for end consumers. Our media distribution products make it easy for our end consumers to enjoy their favorite music and video anywhere in their environment, instantaneously.
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Infrastructure. Our Infrastructure products are foundational to every installation. These products are typically behind-the-wall or less visible to the end consumer than the rest of our product portfolio. Accordingly, our Infrastructure products are often an integrator preference item, so we engineer our solutions with reliability, ease of installation and integrator workflow in mind. Our Infrastructure product portfolio includes the following:
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Structured Wiring and Cables. Our structured wiring and cables provide a quality back end to any installation and enables its overall effectiveness, protects sensitive system components and allows for a neat, organized, and aesthetically pleasing look.
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Racks. Our racks are designed to fit in a variety of spaces, while housing the electronics needed to drive systems and create a pleasing appearance that also protects the components within it.
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Mounts. Our mounts are durable and versatile to provide enhanced viewing experiences through improved design space and by creating the optimal viewing angles.
Snap One’s platform provides our third-party partners with an efficient distribution channel for their products. They are able to access our expansive integrator network, and the associated extensive base of end consumers, to sell their products. In addition, our integration with these third-party products provides a one-stop shop for our integrators, and allows our integrators to efficiently use both proprietary and third-party products in their solutions. We believe our mutually beneficial relationships with third-party partners differentiate us from others in the industry.
Our Software Solutions
Our software solutions enable our integrators to provide optimized, personalized connected systems for our end consumers. Our proprietary OvrC system provides integrators with a free, cloud-based remote management and monitoring solution that enables integrators to troubleshoot connected devices and home systems remotely. As of March 26, 2021, OvrC had approximately 345,000 active homes and businesses
on the platform with approximately 14 million devices connected and over 18,000 unique weekly integrator users. Integrators can now resolve many product issues that may occur following an installation without making follow-up home visits. This saves the integrator time and money while improving their customer’s satisfaction. In addition, we offer our OvrC Home software to end consumers, which provides them with the ability to manage their systems and fix small, common problems without needing to know system complexities. For instance, with OvrC Home, a consumer can reset their Wattbox power outlets and troubleshoot system issues without having to physically access it themselves or call for professional support. This provides value and convenience to end consumers.
Additionally, our Control4 OS3 system is our leading product for command and control of smart living systems and is in approximately 400,000 active homes and businesses orchestrating approximately 24 million connected devices as of March 26, 2021. We have expanded our control platform capabilities and meaningfully enhanced the end consumer experience through the integration of audio, video, lighting, temperature, security, communications and other functionalities throughout the home. Control4 is interoperable with over 16,000 third-party products across hundreds of manufacturers with approximately 60 devices connected per system. This gives the end consumer a simplified experience, as they are able to access multiple systems and devices through a centralized platform.
Our OvrC and Control4 OS3 software provide the foundation supporting the pillars of our growth strategy, which we have built upon to launch and monetize value-added services for end consumers. We have an identified pipeline of growth opportunities where we can leverage our existing OvrC and Control4 OS3 software to create unique subscription-based solutions that generate recurring revenue. We currently have two subscription-based services that we sell to homeowners. Parasol is enabled by our OvrC software and gives homeowners access to continuous remote support service to proactively or reactively troubleshoot devices on their network. 4Sight is enabled by our Control4 OS3 software and provides homeowners with access and control of their home solutions and communications. Using 4Sight, end consumers can remotely monitor and control their systems as if they were at their homes.
Our Technology-Enabled Workflow Solutions
Our differentiated technology and software-enabled workflow solutions enhance the operations of integrators. These embedded solutions further differentiate Snap One from the rest of the smart living market. They provide utility from the beginning of a project through post-project monitoring and are a key driver of stickiness and wallet share growth with our integrators. We believe we operate a comprehensive e-commerce portal for smart living. The Snap One e-commerce portal is not just for ordering products. In fact, integrators typically make a purchase approximately one out of every thirteen times they visit our Snap One portals, which we believe is due to the variety of value-added services our portal provides. Our portals
generate value for integrators by providing business optimization and support tools through the lifecycle of any given project. This continuous integrator engagement enables continuing feedback from multiple points of interaction and gives us a rich data set, to which we apply analytical tools to target promotions, cross-selling and up-selling.
Our cloud-based software solutions, including OvrC and Control4 OS3, generate additional value for our integrators by allowing them to remotely monitor and manage connected systems after installation. These software solutions increase efficiency for our integrators by eliminating the number of costly service appointments, and providing tools to help continue to support and build consumer relationships through continuous system monitoring and management.
Our Technology Tools Support the Entire Integrator Job Lifecycle
•
Research and Learn. Integrators leverage our e-commerce portal for research and learning. We offer extensive product descriptions, specifications, education, videos, supporting documents and solutions-based merchandising to allow integrators to research different options for their projects. We make our library of content easily accessible, and we have a web search tool that allows our integrators to easily find relevant information. In certain markets, we amplify our research and training offering by providing consultations with local representatives and local training events. Given the pace of technological change, this offering allows our integrators to stay up to speed on the latest products and trends in the industry.
•
System Design and Quote. Our design tools give integrators access to technical drawings and CAD files in order to ensure the products they order fit their customers’ homes and work together seamlessly. This is an essential component of delivering the right solutions for their customers. Integrators place orders with precision, reducing shrinkage and the potential for timing delays on executing their projects. We also have a confidential quoting and pricing system that is only available for our integrators.
•
Order and Fulfillment. Our nationwide distribution network allows us to serve integrators through strong delivery and local fulfillment. Our five U.S. distribution centers are strategically located across the country to ensure expeditious product delivery to our integrators. We monitor our inventory and provide integrators with stock status checks to confirm if the products they need are available or estimate availability if the products are on back-order. Orders placed online are trackable, keeping our integrators updated on the latest status of their product shipments. Our platform also offers same-day shipping. In addition, our local branch network allows us in many cases to provide integrators with same-day pickup for products that are required for projects. This helps increase integrators’ efficiency since same-day delivery is mission-critical for integrators as the lack of any one component can stall a project. We also provide our third-party partners with an efficient distribution channel for their products through our network. Our partners are able to access our expansive integrator base, which creates value for our partners and strengthens our commercial relationships.
•
Install, Set-Up and Program. We have award-winning support services available through our online portal. Our portal provides various training videos, documents and other tools that ensure proper product installation. Product support technicians stand at the ready to handle calls and help our integrators successfully execute their product installs. We serve as an outsourced technical team that supports our integrators’ success. In addition, our Control4 Composer software tool provides an intuitive interface that enables integrators to construct a bespoke control system for homeowners at the end of the product installation phase. Through Composer, integrators can create different “scenes” for homeowners, and enable the integration of various connected devices around the home. Overall,
the level of support we provide is differentiated due to our immediate accessibility and our ability to help our integrators execute projects across the full range of products selected for the job at hand.
•
Business Administration. Integrators can use our platform to access invoices, track orders along with order history for their customers, and manage returns. Through these various points of interaction with our integrators, we have a robust data set, which we analyze to target promotions, cross-selling and up-selling opportunities.
•
Ongoing Support. We provide our integrators with on-going monitoring capabilities so they can deliver superior service to their customers. Our OvrC offering, the remote management and monitoring platform for integrators, creates increased efficiency, as integrators can monitor systems and fix any issues remotely, reducing the need for inefficient service calls. This allows integrators to perform their projects with greater efficiency and effectiveness, creating durable relationships and strong brand loyalty with integrators. We also deliver award-winning training, certification, and support services, built to drive integrators’ ongoing success. We deliver our support programs both online and at local branches. The training support staff in our branches can provide integrators with tools and various services throughout the lifecycle of their projects. This allows us to build deep relationships with our integrator base by embedding our services in our integrators’ workflow, and gives us insights into real time integrator feedback.
Our Software and Product Development
We have a robust R&D organization that focuses on the development of new products, software, and technology-driven workflow solutions as well as the enhancement of our existing solutions. Our product and software development process fosters an innovation feedback loop whereby we leverage end consumer and integrator feedback to continually enhance existing solutions. Through our joint-development model, we partner with manufacturers to reliably and rapidly bring new product technology to market and reduce the risk of R&D investment. We focus our internal product development efforts on the application of these leading technologies to the specific challenges faced by integrators and their customers. Our strategy of “fast following” major technology standards while investing in differentiation for the integrator allows us to maintain market-leading products with an efficient, innovative, and capital-light organization. We believe our products are the best-of-breed in their respective categories. We expect to continue to invest substantial resources in R&D to expand our integrated platform of products, software, and technology-driven workflow solutions.
Omni-Channel Distribution and Manufacturing
Our proprietary products are received at one of our five U.S. distribution centers, along with a selection of third-party products, which allows our integrators to bundle their purchases for an entire job with one partner either through our leading e-commerce site or for local purchase and or pickup at one of our 26 local branches as of March 26, 2021. These local branches are key to delivering additional value to our integrators, as we can in many cases provide same-day delivery of products that integrators may require for projects. Same day delivery can be mission critical for integrators as the lack of any one component can stall a project. Our local branches are more than fulfillment centers. We have training sessions and support staff in our branches to provide integrators with various services throughout the lifecycle of their projects. Our local branches also allow us to build deeper relationships with our existing integrator base, giving us insights into real-time feedback, and to expand our network by reaching the local population of integrators. Our omni-channel model facilitates approximately 95% inventory availability and allows us to reach over 99% of the population in the contiguous United States within two days.
Extensive and Expanding Strategic Local Branch Network
In addition to our internal capabilities, we partner with a network of over 50 contract manufacturing and over 80 joint development suppliers to produce our proprietary products. Our supply chain teams, both in the United States and in Asia, partner closely with our suppliers through design, sourcing, quality validation and logistics to ensure high quality, high availability products for our integrators. In fiscal year 2020, approximately 95% of our supplier spend on our proprietary products was with Asia-based suppliers. We maintain contractual and operational safeguards designed to align with our suppliers and ensure high standards in quality. In addition to the work we do with our supplier partners, we perform full custom manufacturing of our Triad speaker line in Portland, Oregon along with light assembly of a few other products in Charlotte, North Carolina and Salt Lake City, Utah for configure to order support.
Sales and Marketing
Our e-commerce portals are the heart of our marketing and sales strategy with over 76 million page views during fiscal year 2020. Our strategy is to make these portals the primary place for integrators to research products, design projects, receive training and certifications, order products and receive ongoing support. We drive engagement with integrators via digital marketing campaigns, a multi-faceted integrator rewards program, high quality content, and digital tools for training, research, management and other integrator needs.
To supplement this portal, we have invested in a multi-faceted sales and marketing organization that allocates effort across channel and sales teams based on the opportunity size of the integrator. We operate our sales effort through a combination of local branch sales personnel, outside sales representatives, and in-house sales development resources. In addition, our strong partner rewards program allows us to drive new integrator additions and increase integrator spend by providing spending and loyalty-based rewards such as free shipping, discounted pricing, advanced replacements and quarterly rebates.
We are active participants at global industry conferences and maintain a significant presence at Custom Electronics Design and Installation Association (CEDIA) trade shows.
Our Competition
The smart living market is fragmented, highly competitive and continually evolving. We compete against smart living point product companies such as Alarm.com, Alphabet, Amazon, Apple, Crestron,
Logitech, Savant, Sonos and Ubiquiti. Many of these companies have significant market share, diversified product and service lines, well-established supply and distribution systems, strong worldwide brand recognition, loyal customer bases and significant financial, marketing, research, development and other resources. Their presence in the market has increased consumer awareness for smart living solutions and has helped contribute to the robust growth of the entire market and demand for our integrated solutions. In a number of cases, our competitors are also our partners within our third-party product ecosystem, and their products are purchased by integrators through Snap One and integrate seamlessly into a professionally installed solution.
We expect to encounter new competitors as we enter new markets as well as increased competition, both domestically and internationally, from other established and emerging smart living focused businesses. Our current and potential competitors may also establish cooperative relationships among themselves or with third parties and rapidly acquire significant market share. In particular, we may in the future compete with large technology companies that offer control capabilities among their products, applications and services, and have ongoing development efforts to address the broader smart living market. Such companies may have longer operating histories, significantly greater financial, technical, marketing, distribution or other resources, and greater name recognition than we do. In some instances, we may have commercial arrangements with technology or services providers in the connected home market with whom we may otherwise compete and our relationships with both our competitors and partners may change through time.
We believe the principal competitive factors in the smart living market include the following:
•
simplicity and ease of use for both the integrator and end consumer;
•
ability to offer a broad suite of products and comprehensive solutions;
•
ability to provide efficient and timely distribution on an omni-channel basis;
•
ability to provide secure access to wireless networks;
•
ability to offer persistent awareness, control and intelligent automation;
•
ability to provide quality product support;
•
flexibility of the solutions and ability to customize for the end consumer;
•
interoperability with a wide range of third-party devices;
•
pricing, affordability and accessibility;
•
network of integrators with local installation capabilities; and
•
brand awareness and reputation.
We believe that we compete favorably with respect to these factors. In addition, we believe that our integrated platform of products and technology-enabled workflow solutions help to set us apart from our competitors.
Our Intellectual Property
Our success and ability to compete effectively depends in part on our ability to protect our proprietary technology and to establish and adequately protect our intellectual property rights. To establish and protect our proprietary rights, we rely upon a combination of patent, copyright, trade secret and trademark laws, and contractual restrictions such as confidentiality agreements, licenses and intellectual property assignment agreements. We maintain a policy requiring our employees, contractors, consultants and other third parties to enter into confidentiality and proprietary rights agreements to control access to our proprietary information. These laws, procedures and restrictions provide only limited protection, and any of our intellectual property rights may be challenged, invalidated, circumvented, infringed or misappropriated. Furthermore, the laws of certain countries do not protect proprietary rights to the same extent as the laws of the United States, and we therefore may be unable to protect our proprietary technology in certain jurisdictions.
As of March 26, 2021, we had over 100 active issued patents and over 100 trademarks protecting our proprietary brands. We continue to review our product development and R&D efforts to assess the existence
and patentability of new intellectual property. We also enter into commercial arrangements with our third-party product partners to provide integration with our ecosystem and sell their products through our e-commerce portal and local branch network.
Legal Proceedings
From time to time, we are involved in legal proceedings arising in the ordinary course of our business. Management believes that we do not have any pending or threatened litigation which, individually or in the aggregate, would have a material adverse effect on our business, results of operations, financial condition or cash flows.
Our Properties
As of March 26, 2021, we had two primary corporate offices in the United States, in North Carolina and Utah, with our corporate headquarters located in Charlotte, North Carolina. Additionally, as of March 26, 2021, we had 26 existing local branches across the United States and seven distribution centers located in California, Kentucky, North Carolina, Texas, Utah, the United Kingdom and Australia. We lease or sublease all of our corporate offices, distribution centers and local branch spaces. We believe that our facilities are adequate for our operations and that suitable additional space will be available when needed.
As of March 26, 2021, our material operating locations were as follows:
|
Locations
|
|
|
Approximate
Square
Footage
|
|
|
Lease
Expiration
Dates
|
|
|
Corporate Offices
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charlotte, North Carolina
|
|
|
|
|
69,953
|
|
|
|
|
|
1/31/2025
|
|
|
|
Draper, Utah
|
|
|
|
|
111,211
|
|
|
|
|
|
1/31/2022
|
|
|
|
Distribution Centers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carrollton, Texas
|
|
|
|
|
72,153
|
|
|
|
|
|
3/31/2025
|
|
|
|
Charlotte, North Carolina
|
|
|
|
|
123,000
|
|
|
|
|
|
7/31/2025
|
|
|
|
Hebron, Kentucky
|
|
|
|
|
63,514
|
|
|
|
|
|
11/30/2025
|
|
|
|
Salt Lake City, Utah
|
|
|
|
|
59,669
|
|
|
|
|
|
3/31/2022
|
|
|
|
San Bernardino, California
|
|
|
|
|
184,397
|
|
|
|
|
|
7/31/2027
|
|
|
Human Capital
Our employees are central to our vision of “bringing together people, integrators and products to deliver joy, connectivity and security in our everyday lives.” Everything we do begins with our people, and recruiting, developing and investing in top talent is critical to our success.
As of March 26, 2021, we had 1,302 full-time employees, including 277 in product development, 316 in sales and marketing, 569 in operations and 140 in general and administrative. Of the 277 employees on our product development team, 138 were software engineers. Of our full-time employees, 1,137 were in the United States and 165 were in our international locations. None of our employees are represented by a labor union and/or covered by a collective bargaining agreement. We have not experienced any work stoppages.
We strive to foster a positive, collaborative and inclusive working environment that enables our people to thrive and our integrators to succeed. That is why we ask every person who joins Snap One to embrace our four company tenets:
•
Be an Owner.
•
Obsess over Customers.
•
Be the Best Place to Work.
•
Learn Every Day.
Consistent with our tenets, Snap One values diversity and belonging. Our solutions integrate thousands of unique products into smart homes and businesses, and similarly we believe that a truly innovative workforce should integrate employees with varied knowledge, experience and backgrounds to best promote innovation
and growth. We rely on the differences in who we are, how we think and what we have experienced to create a greater sense of community. For example, our inclusion groups are company-sponsored groups of employees that support and promote certain mutual objectives of both the employees and the company, including inclusion and diversity and the professional development of employees. We also have a Diversity, Equity and Inclusion Council to promote our shared vision of equality and belonging. Our emphasis on treating people well creates an attractive culture for our employees and enables us to create exceptional experiences for our customers.
We strive to provide our employees with career development opportunities and resources that enable them to grow professionally. This helps us to attract and retain a talented and diverse workforce by deepening employee engagement and enhancing the skills and competencies of our people. We use skills matrices in which employees’ demonstration of our company tenets is assessed against the expectations for their current level of responsibility within the company and potential future roles. Employees and their managers use the results of this assessment to evaluate the employees’ readiness to take on additional responsibility, to create and communicate individual development plans for employees and to identify opportunities that will position them for future professional growth. We supplement our rigorous criteria for assessing employees’ readiness for a promotion with input from a variety of sources, and we seek to create growth opportunities that go beyond promotions.
MANAGEMENT
Executive Officers and Board of Directors
The following table sets forth information about our directors and executive officers as of the date of this prospectus:
|
Name
|
|
|
Age
|
|
|
Position
|
|
|
John Heyman
|
|
|
60
|
|
|
Chief Executive Officer, Director
|
|
|
Michael Carlet
|
|
|
53
|
|
|
Chief Financial Officer
|
|
|
Jefferson Dungan
|
|
|
51
|
|
|
Chief Operations Officer
|
|
|
Jeffrey Hindman
|
|
|
43
|
|
|
Chief Revenue Officer
|
|
|
G Paul Hess
|
|
|
48
|
|
|
Chief Product Officer
|
|
|
JD Ellis
|
|
|
42
|
|
|
Chief Legal Officer
|
|
|
Erik Ragatz
|
|
|
48
|
|
|
Chairman of the Board of Directors
|
|
|
Jacob Best
|
|
|
37
|
|
|
Director
|
|
|
Annmarie Neal
|
|
|
58
|
|
|
Director
|
|
|
Martin Plaehn
|
|
|
63
|
|
|
Director
|
|
|
Adalio Sanchez
|
|
|
62
|
|
|
Director
|
|
|
Kenneth R. Wagers III
|
|
|
49
|
|
|
Director
|
|
Set forth below is a brief description of the business experience of our directors and executive officers. All of our executive officers serve at the discretion of our board of directors.
John Heyman has served as our Chief Executive Officer and a member of our board of directors since January 2015. He has worked in the technology industry for over 30 years, including sixteen years, most recently as Chief Executive Officer at Radiant Systems, Inc., a publicly-traded provider of technology to the hospitality and retail industries, from 1995 until its $1.3 billion sale to NCR Corporation in 2011. From 2011 until joining Snap One, Mr. Heyman founded Actuate Partners, a private investment firm, and served as Executive Chairman of Influence Health, a technology provider to the healthcare industry. Mr. Heyman served as a director and a member of the Audit Committee of Manhattan Associates, a publicly traded provider of software to manage supply chains, inventory and omnichannel operations, from 2016 to 2019.
We believe that Mr. Heyman is qualified to serve as a director based on the perspective and experience he brings as our Chief Executive Officer and his experience as a seasoned executive.
Michael Carlet has served as our Chief Financial Officer since 2014. Prior to joining Snap One, Mr. Carlet served as Chief Operating Officer and Chief Financial Officer of the automotive division of Sears Holdings from 2013 to 2014. Prior to Sears, Mr. Carlet spent over 15 years with Driven Brands, Inc., the parent company of Meineke Car Care Centers, Inc., Maaco Franchising, Inc. and other automotive franchise brands, where he served as Chief Financial Officer from 2002 to 2013 and as Controller from 1997 to 2000. He began his career in public accounting with Ernst & Young.
Jefferson Dungan has served as our Chief Operations Officer since we completed the acquisition of Control4 in August 2019. From 2006 to August 2019, Mr. Dungan held leadership positions at Control4 in Product Marketing, IT, Operations and Business Development, most recently serving as Senior Vice President, Operations and Business Development. Mr. Dungan also led Control4’s acquisitions of Leaf, PakEdge and Triad. Prior to Control4, Mr. Dungan held senior positions at HP, Celestica and BEA.
Jeffrey Hindman has served as our Chief Revenue Officer since 2019. He joined Snap One in 2016 as President of New Markets and became Executive Vice President of Sales and Marketing in 2018. Prior to Snap One, Mr. Hindman served eight years with Radiant Systems, Inc. and ultimately NCR Corporation (an enterprise technology provider for restaurants, retailers and banks, which acquired Radiant in 2011) in a variety of roles, most recently as General Manager of NCR’s Hospitality SMB division. Prior to Radiant, Mr. Hindman was a consultant with McKinsey & Company and a technology investment banker with J.P. Morgan.
G Paul Hess has served as our Chief Product Officer since 2019 and has held senior positions in product development, product management and marketing since joining Snap One in 2010. Prior to Snap One, Mr. Hess led regional and national sales roles for ELAN Home Systems, now part of Nortek Security and Control, a residential control and audio-video manufacturer, from 2003 to 2010. Prior to ELAN, Mr. Hess worked in audiovisual retail sales before transitioning to co-ownership of a smart home dealership focused on upscale and estate smart home projects.
JD Ellis has served as our Chief Legal Officer since August 2019 and has also led our Human Resources department since February 2020. Prior to joining Snap One, Mr. Ellis worked at Control4 Corporation from 2010 to August 2019, including as General Counsel and head of Human Resources from 2018 to 2019 and as Associate General Counsel from 2010 to 2018. Prior to Control4, Mr. Ellis served as in-house legal counsel to Ivanti (formerly LANDesk Software) from 2007 through the company’s acquisition by Emerson Electric in 2010.
Erik Ragatz has served as Chairman and a member of our board of directors since 2017. Mr. Ragatz has worked at Hellman & Friedman since 2001, where he has been a Partner since 2008. Mr. Ragatz leads Hellman & Friedman’s efforts to invest in the consumer, retail and industrial sectors. Since 2014, he has been Chairman of the Board of Directors of Grocery Outlet, a publicly traded extreme value retailer of consumables and fresh products, and has served on the Board of Directors of Wand TopCo Inc. (d/b/a Caliber Collision), a chain of auto body repair and paint shops, as Chairman (2014-2020) and currently as Lead Director. He was formerly Chairman of the Board of Directors of Goodman Global (2008-2012), a manufacturer and distributor of HVAC systems and Associated Materials (2010-2020), a manufacturer and distributor of external building materials, and a Director of LPL (2009-2012), a publicly-traded provider of brokerage and investment advisory services to financial advisors.
We believe that Mr. Ragatz is qualified to serve as a director based on his prior executive leadership and his experience in and knowledge of the industry in which we operate.
Jacob Best has served as a member of our board of directors since 2017. He has been a Director at Hellman & Friedman since 2016. Prior to joining Hellman & Friedman, Mr. Best worked as the Chief of Staff at Emdeon, a healthcare technology business, in 2013 and the Head of Medical Networks at Grand Rounds, a provider of tech-enabled interaction platforms to doctors and patients, from 2014 to 2016. From 2009 to 2012, Mr. Best was an Associate at Hellman & Friedman and previously worked at Bain & Company in New York. Mr. Best served as a director of Associated Materials, a manufacturer and distributor of external building materials, from 2016 to 2020. Mr. Best was formerly a Director of Goodman Global, a leading manufacturer and distributor of HVAC equipment, in 2012 and Ellucian, a leading provider of software to higher education institutions, in 2012.
We believe that Mr. Best is qualified to serve as a director based on his experience as an executive and knowledge of the industry in which we operate.
Annmarie Neal has served as a member of our board of directors since January 2021. Dr. Neal is a Partner and Chief Talent Officer at Hellman & Friedman, where she has worked since 2015. Prior to joining Hellman & Friedman, Dr. Neal ran her own consulting firm and held the Chief Talent Officer roles at Cisco Systems from 2006 to 2012 and at First Data Corporation from 2000 to 2005.
We believe that Dr. Neal is qualified to serve as a director based on her experience as an executive and her deep knowledge and expertise in succession, compensation, organization effectiveness and HR operations.
Martin Plaehn has served as a member of our board of directors since 2019. He served as the Chief Executive Officer and Chairman of the Board of Control4 Corporation until its acquisition by Snap One in 2019. Mr. Plaehn joined Control4 in 2011 and led the company’s growth, including its initial public offering in 2013. Prior to Control4, he held a variety of positions in the electronics industry including roles as Senior Vice President of Product and Service Development at RealNetworks from 2010 to 2011; Chief Executive Officer at Bungee Labs from 2006 to 2008; Executive Vice President of Technology Products and Services at RealNetworks from 1999 to 2004; Chief Executive Officer of Viewpoint Digital from 1996 to 1999; Senior Vice President of Product Development at Alias | Wavefront; and Executive Vice President of Business and Product Development, as well as a member of the board of directors, at Wavefront Technologies until its merger with Alias Research in 1995.
We believe that Mr. Plaehn is qualified to serve as a director based on his perspective and experience as a Chief Executive Officer and director and his experience as a seasoned executive.
Adalio Sanchez became a member of our Board of Directors in June of 2021. Mr. Sanchez is President of S Group Advisory LLC, a management consulting firm providing advisory services on business strategy, technology, and operational excellence. Since 2015, he also has served on the board of directors of ACI Worldwide Inc., a software company serving the electronics payments market, and since 2019 has served on the board of Avnet Inc., a global electronic components distribution and technology solutions company. He also serves on the board of trustees of the MITRE Corporation, a not-for-profit firm that manages federally-funded research and development centers supporting several U.S. government agencies since November 2018. Mr. Sanchez previously served on the board of Quantum Corporation, a computer storage solutions company, from May 2017 to April 2019, and served as interim CEO from November 2017 to January 2018. From 2014 to 2015, Mr. Sanchez served as Senior Vice President of the Lenovo Group Limited, an international technology company. Prior to that, he spent 32 years at IBM Corporation, a global technology and innovation company, where he served in various capacities including sixteen years in senior executive and global general management roles.
We believe that Mr. Sanchez is qualified to serve as a director based on his perspective and experience as a director and his experience as a seasoned executive.
Kenneth R. Wagers III has served as a member of our board of directors since 2020. Mr. Wagers was recently appointed Chief Financial Officer of Flexport, a global logistics and freight forwarding business, in April 2021. Mr. Wagers has more than 25 years of experience in financial and accounting management, operations, and engineering. Prior to joining Flexport, Mr. Wagers served as Chief Financial Officer of FleetPride, a retailer of parts for heavy-duty trucks and trailers, from 2019 to 2021. Prior to joining FleetPride, Mr. Wagers served as Chief Operating Officer of XPO Logistics, a global provider of supply chain solutions, from 2018 to 2019. Prior to that, Mr. Wagers served as the Head of Finance for Worldwide Transportation and Logistics at Amazon.com from 2013 to 2018 and as Chief Financial Officer of LinkAmerica, a private equity-owned logistics and transportation business, from 2012 to 2013. Mr. Wagers also held multiple senior-level finance and accounting roles at Dr Pepper Snapple Group and UPS after beginning his career in UPS’ operations and engineering department.
We believe that Mr. Wagers is qualified to serve as a director based on his perspective and experience as a Chief Financial Officer and his experience as a seasoned executive.
Board of Directors
Our business and affairs are managed under the direction of our board of directors. Our board of directors currently consists of seven directors. Following the completion of this offering, we expect our board of directors to initially consist of eight directors.
Our amended and restated certificate of incorporation will provide that, subject to the right of holders of any series of preferred stock, our board of directors will be divided into three classes of directors, with the classes to be as nearly equal in number as possible, and with the directors serving staggered three-year terms, with only one class of directors being elected at each annual meeting of stockholders. As a result, approximately one-third of our board of directors will be elected each year. We expect that, following this offering, our initial Class I directors will be Messrs. Ragatz, Heyman and Plaehn (with their terms expiring at the annual meeting of stockholders to be held in 2022), our initial Class II directors will be Messrs. Wagers, Sanchez and Dr. Neal (with their terms expiring at the annual meeting of stockholders to be held in 2023) and our initial Class III directors will be Mr. Best and (with their terms expiring at the annual meeting of stockholders to be held in 2024).
Our amended and restated certificate of incorporation and amended and restated bylaws will provide that, subject to any rights of holders of preferred stock to elect additional directors under specified circumstances, the number of directors will be fixed from time to time exclusively pursuant to a resolution adopted by the board of directors; however, if at any time Hellman & Friedman owns at least 40% in voting power of the stock of our Company entitled to vote generally in the election of directors, the stockholders may also fix the number of directors pursuant to a resolution adopted by the stockholders. Subject to certain
exceptions described below with respect to the stockholders agreement we intend to enter into, newly created director positions resulting from an increase in size of the board of directors and vacancies may be filled by our board of directors or our stockholders; provided, however, that at any time when Hellman & Friedman beneficially owns less than 40% in voting power of the stock of our company entitled to vote generally in the election of directors, such vacancies shall be filled by our board of directors (and not by the stockholders).
Our stockholders agreement will provide that following the completion of this offering, Hellman & Friedman will have the right to nominate the number of directors to our board of directors described below (such persons nominated by Hellman & Friedman, the “Hellman & Friedman nominees”). Hellman & Friedman will have the right to nominate a number of nominees equal to (x) the total number of directors comprising our board of directors at such time, multiplied by (y) the percentage of our outstanding common stock held from time to time by Hellman & Friedman. For purposes of calculating the number of Hellman & Friedman nominees, any fractional amounts are rounded up to the nearest whole number. For so long as we have a classified board, the Hellman & Friedman nominees will be divided by Hellman & Friedman as evenly as possible among the classes of directors. See “Certain Relationships and Related Party Transactions — Stockholders Agreement.”
Pursuant to the stockholders agreement, for so long as Hellman & Friedman has the right to nominate any persons to our board of directors, (i) we will include the Hellman & Friedman nominees on the slate that is included in our proxy statements relating to the election of directors of the class to which such persons belong and provide the highest level of support for the election of each such persons as we provide to any other individual standing for election as a director, and (ii) we will include on the slate that is included in our proxy statement relating to the election of directors only (x) the Hellman & Friedman nominees, and (y) the other nominees (if any) nominated by the nominating and corporate governance committee of our board of directors. In addition, Hellman & Friedman and certain other stockholders will agree with the Company to vote in favor of the Company slate that is included in our proxy.
In the event that a Hellman & Friedman nominee ceases to serve as a director for any reason (other than the failure of our stockholders to elect such individual as a director), the persons entitled to designate such nominee director under the stockholders agreement will be entitled to appoint another nominee to fill the resulting vacancy.
Background and Experience of Directors
When considering whether directors and nominees have the experience, qualifications, attributes or skills, taken as a whole, to enable our board of directors to satisfy its oversight responsibilities effectively in light of our business and structure, the board of directors focused primarily on each person’s background and experience as reflected in the information discussed in each of the directors’ individual biographies set forth above. We believe that our directors provide an appropriate mix of experience and skills relevant to the size and nature of our business. Once appointed, directors serve until their term expires, they resign or they are removed by the stockholders.
Role of Board of Directors in Risk Oversight
The board of directors has extensive involvement in the oversight of risk management related to us and our business and accomplishes this oversight through the regular reporting by the Audit and Risk Management Committee. Through its regular meetings with management, including the finance, legal and internal audit functions, the Audit and Risk Management Committee reviews and discusses all significant areas of our business and summarizes for the board of directors all areas of risk and the appropriate mitigating factors. In addition, our board of directors receives periodic detailed operating performance reviews from management.
Controlled Company Exception
After the completion of this offering, Hellman & Friedman will continue to beneficially own more than 50% of our common stock and voting power. As a result, (a) under certain provisions of our amended and restated bylaws which will be in effect upon the closing of this offering, Hellman & Friedman and those other
parties to our stockholders agreement will be entitled to nominate at least a majority of the total number of directors comprising our board of directors and (b) we will be a “controlled company” as that term is set forth in Section 5615(c)(1) of the Nasdaq Rules. Under the Nasdaq corporate governance standards, a company of which more than 50% of the voting power is held by an individual, group or another company is a “controlled company” and may elect not to comply with certain corporate governance standards, including (1) the requirement that a majority of the board of directors consist of independent directors, (2) the requirement that we have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities and (3) the requirement that our director nominations be made, or recommended to our full board of directors, by our independent directors or by a nominations committee that consists entirely of independent directors and that we adopt a written charter or board resolution addressing the nominations process. Following this offering, we [do not] intend to utilize these exemptions. [However, if we utilize any of these exemptions in the future,][As a result] you will not have the same protections afforded to stockholders of companies that are subject to all of the Nasdaq corporate governance requirements. In the event that we cease to be a “controlled company,” we will be required to comply with these provisions within the transition periods specified in the Nasdaq corporate governance rules.
Committees of the Board of Directors
After the completion of this offering, the standing committees of our board of directors will consist of an Audit and Risk Management Committee, a Compensation Committee and a Nominating and Corporate Governance Committee.
Our chief executive officer and other executive officers will regularly report to the non-executive directors and the Audit and Risk Management, the Compensation and the Nominating and Corporate Governance Committees to ensure effective and efficient oversight of our activities and to assist in proper risk management and the ongoing evaluation of management controls. The internal audit function will report functionally and administratively to our chief financial officer and directly to the Audit and Risk Management Committee. We believe that the leadership structure of our board of directors provides appropriate risk oversight of our activities given the controlling interests held by Hellman & Friedman.
Audit and Risk Management Committee
The members of our current Audit and Risk Management Committee are Messrs. Best, Ragatz and Wagers (who serves as the Chair). Upon the completion of this offering, we expect to have an Audit and Risk Management Committee consisting of Messrs. Best, Sanchez and Wagers, who will serve as the Chair, and all of them qualify as independent directors under the Nasdaq corporate governance standards and independence requirements of Rule 10A-3 of the Exchange Act. Our board of directors has determined that Messrs. Wagers, Best and Sanchez qualifies as an “audit committee financial expert” as such term is defined in Item 407(d)(5) of Regulation S-K.
The purpose of the Audit and Risk Management Committee will be to prepare the audit committee report required by the SEC to be included in our proxy statement and to assist our board of directors in overseeing and monitoring (1) the quality and integrity of our financial statements, including oversight of our accounting and financial reporting processes, internal controls and financial statement audits, (2) our compliance with legal and regulatory requirements, (3) our independent registered public accounting firm’s qualifications, performance and independence, (4) our corporate compliance program, including our code of conduct and anti-corruption compliance policy, and investigating possible violations thereunder, (5) our risk management policies and procedures and (6) the performance of our internal audit function.
Our board of directors will adopt a written charter for the Audit and Risk Management Committee, which will be available on our website upon the completion of this offering.
Compensation Committee Interlocks and Insider Participation
Compensation decisions are made by our Compensation Committee. None of our current or former executive officers or employees currently serves, or has served during our last completed fiscal year, as a member of our Compensation Committee and, during that period, none of our executive officers served as
a member of the compensation committee (or other committee serving an equivalent function) of any other entity whose executive officers served as a member of our board of directors.
We have entered into certain indemnification agreements with our directors and are party to certain transactions with Hellman & Friedman described in “Certain Relationships and Related Party Transactions — Indemnification of Directors and Officers” and “— Stockholders Agreement,” respectively.
Compensation Committee
The members of our current Compensation Committee are Messrs. Best and Ragatz and Dr. Neal. Upon the completion of this offering, we expect to have a Compensation Committee consisting of Mr. Ragatz, Mr, Sanchez, Dr. Neal and Mr. Best, who will serve as the Chair.
The purpose of the Compensation Committee will be to assist our board of directors in discharging its responsibilities relating to, among other things, (1) setting our compensation program and compensation of our executive officers and directors, (2) administering our incentive and equity-based compensation plans and (3) preparing the compensation committee report required to be included in our proxy statement under the rules and regulations of the SEC.
Our board of directors will adopt a written charter for the Compensation Committee, which will be available on our website upon the completion of this offering.
Nominating and Corporate Governance Committee
Upon the completion of this offering, we expect to have a Nominating and Corporate Governance Committee consisting of Mr. Plaehn, Mr. Sanchez, Dr. Neal, and Mr. Ragatz, who will serve as the Chair. The purpose of our Nominating and Corporate Governance Committee will be to assist our board of directors in discharging its responsibilities relating to (1) identifying individuals qualified to become new board members, consistent with criteria approved by the board of directors, (2) reviewing the qualifications of incumbent directors to determine whether to recommend them for reelection and selecting, or recommending that the board of directors select, the director nominees for the next annual meeting of stockholders, (3) identifying board members qualified to fill vacancies on any committee of the board of directors and recommending that the board of directors appoint the identified member or members to the applicable committee, (4) reviewing and recommending to the board of directors corporate governance principles applicable to us, (5) overseeing the evaluation of the board of directors and management and (6) handling such other matters that are specifically delegated to the committee by the board of directors from time to time.
Our board of directors will adopt a written charter for the Nominating and Corporate Governance Committee, which will be available on our website upon completion of this offering.
Director Independence
Pursuant to the corporate governance listing standards of the Nasdaq, a director employed by us cannot be deemed to be an “independent director.” Each other director will qualify as “independent” only if our board of directors affirmatively determines that he or she has no material relationship with us, either directly or as a partner, stockholder or officer of an organization that has a relationship with us. Ownership of a significant amount of our stock, by itself, does not constitute a material relationship.
Our board of directors have affirmatively determined that each of our directors, other than Mr. Heyman, qualifies as “independent” in accordance with the Nasdaq rules. In making its independence determinations, our board of directors considered and reviewed all information known to it (including information identified through directors’ questionnaires).
Code of Conduct
Prior to the consummation of this offering, we will adopt a Code of Conduct (the “Code of Conduct”) applicable to all employees, executive officers and directors that addresses legal and ethical issues that may be encountered in carrying out their duties and responsibilities, including the requirement to report any
conduct they believe to be a violation of the Code of Conduct. The Code of Conduct will be available on our website, www.investors.snapone.com. The information available on or through our website is not part of this prospectus. If we ever were to amend or waive any provision of our Code of Conduct that applies to our principal executive officer, principal financial officer, principal accounting officer or any person performing similar functions, we intend to satisfy our disclosure obligations with respect to any such waiver or amendment by posting such information on our internet website set forth above rather than by filing a Form 8-K.
Directed Share Program
At our request, the underwriters have reserved up to shares, or up to 5% of the shares offered by this prospectus, for sale at the initial public offering price through a directed share program to certain of our directors, employees and partner providers. The sales will be made at our direction by Morgan Stanley & Co. LLC and its affiliates through a directed share program. The number of our shares available for sale to the general public in this offering will be reduced to the extent that such persons purchase such reserved shares. Any reserved shares not so purchased will be offered by the underwriters to the general public on the same terms as the other shares offered by this prospectus. Participants in the directed share program will not be subject to lock-up or market standoff restrictions with the underwriters or with us with respect to any shares purchased through the directed share program, except in the case of shares purchased by any of our directors or employees. For additional information, see “Underwriting — Directed Share Program.”
EXECUTIVE COMPENSATION
Summary Compensation Table
The following table provides summary information concerning compensation earned by our principal executive officer and our two other most highly-compensated executive officers as of December 25, 2020 for services rendered for fiscal year 2020. These individuals are referred to as our named executive officers.
|
Name and Principal Position
|
|
|
Year
|
|
|
Salary ($)(1)
|
|
|
Bonus ($)(2)
|
|
|
Non-Equity
Incentive Plan
Compensation ($)(3)
|
|
|
All Other
Compensation ($)(4)
|
|
|
Total ($)
|
|
|
John Heyman
Chief Executive Officer
|
|
|
|
|
2020
|
|
|
|
|
$
|
648,352
|
|
|
|
|
$
|
491,833
|
|
|
|
|
$
|
487,500
|
|
|
|
|
$
|
37,089
|
|
|
|
|
$
|
1,664,774
|
|
|
|
Michael Carlet
Chief Financial Officer
|
|
|
|
|
2020
|
|
|
|
|
$
|
334,431
|
|
|
|
|
$
|
236,146
|
|
|
|
|
$
|
188,438
|
|
|
|
|
$
|
46,710
|
|
|
|
|
$
|
805,725
|
|
|
|
Jeffrey Hindman
Chief Revenue Officer
|
|
|
|
|
2020
|
|
|
|
|
$
|
334,341
|
|
|
|
|
$
|
236,146
|
|
|
|
|
$
|
188,438
|
|
|
|
|
$
|
16,275
|
|
|
|
|
$
|
775,200
|
|
|
(1)
The amounts reported represent the named executive officer’s base salary earned during fiscal year 2020. As further described in “— Base Salary” section below, each named executive officer’s base salary was increased, effective January 1, 2020. The amounts reported herein were calculated using the named executive officer’s pre-increase base salary amount for the period of December 28, 2019 to December 31, 2019, and the named executive officer’s increased base salary amount for the period of January 1, 2019 to December 25, 2020.
(2)
The amounts reported represent the fixed bonus amount earned with respect to the first half of fiscal year 2020 and the additional discretionary bonus awarded from the funding of a supplemental bonus pool for performance above target.
(3)
The amounts reported represent the bonus amount earned by the named executive officer under the Company’s 2020 annual incentive plan with respect to the second half of fiscal year 2020 based on the achievement of certain pre-determined performance goals established thereunder.
(4)
For Mr. Heyman, amounts reported include matching contributions to the Company’s 401(k) deferred compensation plan, reimbursement for equipment in connection with the installation of company products in his primary residence and reimbursement of Mr. Heyman’s share of storage and maintenance costs for an airplane in which he has a partial interest; for Mr. Carlet, amounts reported include matching contributions to the Company’s 401(k) deferred compensation plan and reimbursement for equipment, integrator services and other costs in connection with the installation of company products in his primary residence; and for Mr. Hindman, amounts reported include matching contributions to the Company’s 401(k) deferred compensation plan, and payment of membership fees for an executive leadership organization.
Narrative Disclosure to Summary Compensation Table
Employment Agreements
John Heyman
We entered into an employment agreement with Mr. Heyman, dated as of January 26, 2015, and amended and restated as of August 4, 2017, pursuant to which Mr. Heyman serves as our Chief Executive Officer, reporting to our board of directors. Mr. Heyman’s agreement provides for a base salary fixed by our board of directors (which was $650,000 for 2020) and eligibility to receive an annual bonus under the Company’s annual incentive plan, as determined in the sole discretion of our board of directors. Mr. Heyman’s employment agreement provided for an initial target bonus opportunity equal to 50% of base salary. For additional information with respect to Mr. Heyman’s annual bonus opportunity for 2020, see “Annual Bonus/Non-Equity Incentive Plan Compensation” below. Mr. Heyman’s employment agreement also provides
that Mr. Heyman is entitled to be reimbursed for his reasonable costs for travel on a private airplane between his residence and the Company’s executive offices, up to an annual maximum of $150,000. See “—Perquisites” below for additional details on Mr. Heyman’s perquisites (including reimbursement for airplane travel).
Mr. Heyman’s agreement has an initial term of five years until August 4, 2022 and will be renewed automatically for further one-year renewal terms unless either party gives notice of its intention not to renew the agreement at least 60 days before the expiration of the current term. Mr. Heyman’s agreement also provides for severance benefits in the event of termination of his employment in certain cases, as described below under “— Termination and Change in Control Provisions.”
Mr. Heyman’s employment agreement also subjects Mr. Heyman to the following restrictive covenants that apply during the term of his employment and for two years thereafter (the “restricted period”): non-competition, employee and consultant non-solicitation (prohibiting the solicitation of any employee or consultant to terminate his or her employment with, or materially reduce his or her service to, the Company (as applicable)), employee no-hire and non-interference covenants (prohibiting interference with the relationship between the Company and its business relations, such as current or prospective clients, customers, licensees, suppliers and vendors). His employment agreement also includes a perpetual confidentiality and mutual non-disparagement covenant, and an assignment of intellectual property covenant. Mr. Heyman also entered into a separate non-interference agreement, which subjects Mr. Heyman to the same restrictive covenants as those set forth in his employment agreement, except the restricted period is the term of his employment and one year thereafter, and the non-disparagement covenant is not mutual.
Michael Carlet
We entered into an offer letter agreement with Mr. Carlet (dated as of October 7, 2014, and amended as of August 4, 2017), pursuant to which Mr. Carlet serves as our Chief Financial Officer. Mr. Carlet’s agreement provides for a base salary fixed by our board of directors (which was $335,000 for 2020), and eligibility to receive an annual bonus (with an initial target bonus opportunity of 30% of base salary) based on the achievement of individual and Company performance objectives. For additional information with respect to Mr. Carlet’s annual bonus opportunity for 2020, see “Annual Bonus/Non-Equity Incentive Plan Compensation” below. Mr. Carlet’s agreement also provides for severance benefits in the event of termination of his employment in certain cases, as described below under “— Termination and Change in Control Provisions.”
Mr. Carlet also entered into separate non-interference agreements, which subject Mr. Carlet to the following restrictive covenants that apply during the term of his employment and for one year thereafter: non-competition, employee and consultant non-solicitation (prohibiting the solicitation of any employee or consultant to terminate his or her employment or materially reduce his or her service to the Company (as applicable)), employee no-hire, and non-interference covenants (prohibiting interference with the relationship between the Company and its business relations, such as current or prospective clients, customers, licensees, suppliers and vendors). His non-interference agreements also include a perpetual confidentiality covenant and non-disparagement covenant, and an assignment of intellectual property covenant.
Jeffrey Hindman
We entered into an offer letter agreement with Mr. Hindman (dated as of March 22, 2016, and amended as of August 4, 2017), pursuant to which Mr. Hindman currently serves as our Chief Revenue Officer. Mr. Hindman’s agreement provides for a base salary (which was $335,000 for 2020) and eligibility to receive an annual bonus (with an initial target bonus opportunity of 50% of base salary) based on the achievement of individual and Company performance objectives. For additional information with respect to Mr. Hindman’s annual bonus opportunity for 2020, see “Annual Bonus/Non-Equity Incentive Plan Compensation” below. Mr. Hindman’s agreement also provides for severance benefits in the event of termination of his employment in certain cases, as described below under “— Termination and Change in Control Provisions.”
Mr. Hindman also entered into separate non-interference agreements, which subject Mr. Hindman to the following restrictive covenants that apply during the term of his employment and for one year thereafter:
non-competition, employee and consultant non-solicitation (prohibiting the solicitation of any employee or consultant to terminate his or her employment with or materially reduce their service to the Company (as applicable)), employee no-hire and non-interference covenants (prohibiting interference with the relationship between the Company and its business relations, such as current or prospective clients, customers, licensees, suppliers and vendors). His non-interference agreements also include a perpetual confidentiality covenant and non-disparagement covenant, and an assignment of intellectual property covenant.
Base Salary
We provide each named executive officer with a base salary for the services that the executive officer performs for us. This compensation component constitutes a stable element of compensation while other compensation elements are variable. Base salaries are reviewed annually and may be increased based on the individual performance of the named executive officer, Company performance, any change in the executive’s position within our business, and/or the scope of his or her responsibilities and any changes thereto. In early 2020, following an annual review of salaries for our executive officers, Mr. Heyman’s base salary was increased to $650,000 (an increase of 30.0%), Mr. Carlet’s base salary was increased to $335,000 (an increase of 18.3%), and Mr. Hindman’s base salary was increased to $335,000 (an increase of 17.9%). In each case, the increase was retroactive to January 1, 2020 and was awarded based on our board of directors’ assessment of the named executive officer’s performance.
Annual Bonus/Non-Equity Incentive Plan Compensation
For fiscal year 2020, bonuses reflected our Company’s strong performance despite the Covid-19 pandemic. In July 2020, taking into account the substantial disruption caused by the pandemic and the uncertainty of the economic outlook for the remainder of the year, our board of directors decided to bifurcate the calculation of bonus amounts for fiscal year 2020 into a component for the first half of the year and a component for the second half of the year. In respect of the first half of the year, executives would receive a fixed amount equal to 25% of their target bonus. In respect of the second half of the year, executives would be eligible to receive a variable amount based on the residual 75% of their target bonus, determined by the Company’s achievement of a target tied to Adjusted EBITDA, further adjusted to exclude the impact of certain other items determined by our board of directors (“Compensation EBITDA”), including net changes to deferred revenue and other non-recurring charges, for the second half of the year. The right to receive both components of the bonus was contingent upon the executive remaining employed by the Company at the time the bonus was paid in 2021. The decision to bifurcate the bonus calculation gave executives and other bonus-eligible employees some assurance that they would receive at least a minimal bonus notwithstanding the adverse business impact of events beyond their control, while providing incentives to excel in the changed business environment of the second half of the year. The target amounts for Messrs. Heyman, Carlet and Hindman for the full year, which were set in early 2020, were $650,000, $251,250 and $251,250, respectively, equal to 100% of the 2020 base salary for Mr. Heyman and 75% of 2020 base salary for each of Messrs. Carlet and Hindman.
If the Company achieved the target level Compensation EBITDA, executives would be eligible to receive 100% of the residual 75% of their target bonus for the year. If the Company did not achieve a threshold level of approximately 80% of target Compensation EBITDA, no bonus would be payable to executives. At threshold level Compensation EBITDA achievement, executives would be eligible to receive 25% of the residual 75% of their target bonus and for Compensation EBITDA achievement that fell between the threshold and target levels, the payout percentage would be interpolated on a straight-line mathematical basis. If Compensation EBITDA exceeded the target, the full residual 75% of the executive’s target bonus would be payable and a supplemental bonus pool for all bonus-eligible employees (including executives) would be funded with 39% of the excess over target Compensation EBITDA, with any amounts from the supplemental bonus pool to be distributed among all bonus-eligible employees in the discretion of management, subject to, in the case of amounts to be distributed to the named executive officers, approval by our board of directors.
The Company exceeded its target for Compensation EBITDA in the second half of the year, resulting in full payment of residual target bonus amounts and establishment of a supplemental bonus pool. Mr. Heyman was awarded $329,333 from the supplemental bonus pool and Messrs. Carlet and Hindman were awarded
$173,333 each from the supplemental bonus pool. The total fiscal year 2020 annual bonus amounts earned by each named executive officer (which includes the fixed bonus amount earned with respect to the first half of the year, the bonus amount earned based on Compensation EBITDA relative to target for the second half of the year, and the additional discretionary bonus) was as follows: $979,333 for Mr. Heyman and $424,583 for each of Messrs. Carlet and Hindman. The fixed and additional discretionary bonus amounts are reported in the “Bonus” column of the Summary Compensation Table above, and the bonus amounts earned based on Compensation EBITDA relative to target for the second half of the year are reported in the “Non-Equity Incentive Plan Compensation” column in the Summary Compensation Table above.
Perquisites
The Company provides modest perquisites to its executives. Under the Company’s Executive Product Experience Program, as a one-time benefit and in order to provide the Company with improved developmental feedback on its solutions, executives at the level of Executive Vice President and above who install and use Company products in their primary residence are eligible to receive up to $25,000 in such products, valued at the Company’s cost, without charge, and the Company will reimburse the executive for 75% of up to $25,000 in integrator services and other costs. In addition, each year thereafter the executive is eligible to receive Company beta products as available and up to $7,500 in new products, valued at the Company’s cost, without charge, and the Company will reimburse the executive for 70% of up to $5,000 in integrator services and other costs. An executive who voluntarily leaves the Company within 24 months after the initial installation must reimburse the company for all costs for the products and services provided. In addition, the Company reimburses Mr. Heyman for his pro rata share of the maintenance and storage costs of a private airplane in which he owns a 25% interest and for the reasonable costs of travel on such airplane for business purposes and travel between his residence and the Company’s executive offices, up to an annual maximum of $150,000. The Company also pays a portion of the membership fees for Mr. Hindman to belong to an executive leadership organization and reimburses him for his travel expenses to attend the organization’s meetings. Due to absence of travel because of the Covid-19 pandemic, no reimbursements for travel costs were made in 2020 to Messrs. Heyman or Hindman.
No 2020 Equity Awards
Our named executive officers did not receive an equity award in fiscal year 2020.
Outstanding Equity Awards As of the End of Fiscal Year 2020
The following table provides information regarding outstanding equity awards made to our named executive officers as the end of fiscal year 2020.
|
|
|
|
|
|
|
|
|
|
Stock Awards
|
|
|
Name
|
|
|
Grant Date
|
|
|
Number of Shares or
Units of Stock That
Have Not Vested
(#)
|
|
|
Market Value
of Shares or
Units of Stock
That Have
Not Vested
($)(4)
|
|
|
Equity Incentive
Plan Awards:
Number of
Unearned Shares,
Units or Other
Rights That Have
Not Vested
(#)
|
|
|
Equity Incentive
Plan Awards:
Market or Payout Value
of Unearned
Shares, Units or
Other Rights That
Have Not Vested
($)(5)
|
|
|
John Heyman,
Chief Executive Officer
|
|
|
|
|
10/23/2017
|
|
|
|
|
|
5,192,800(1)
|
|
|
|
|
$
|
3,468,790
|
|
|
|
|
|
9,110,176(2)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
8/28/2019
|
|
|
|
|
|
1,008,000(1)
|
|
|
|
|
$
|
537,264
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/30/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
890,000(3)
|
|
|
|
|
|
—
|
|
|
|
Michael Carlet,
Chief Financial Officer
|
|
|
|
|
10/23/2017
|
|
|
|
|
|
1,594,281(1)
|
|
|
|
|
$
|
1,064,980
|
|
|
|
|
|
2,733,053(2)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
8/28/2019
|
|
|
|
|
|
400,000(1)
|
|
|
|
|
$
|
213,200
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
9/30/2019
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
500,000(3)
|
|
|
|
|
|
—
|
|
|
|
Jeffrey Hindman,
Chief Revenue Officer
|
|
|
|
|
10/23/2017
|
|
|
|
|
|
1,594,281(1)
|
|
|
|
|
$
|
1,064,980
|
|
|
|
|
|
2,733,053(2)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
8/28/2019
|
|
|
|
|
|
400,000(1)
|
|
|
|
|
$
|
213,200
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
9/30/2019
|
|
|
|
|
|
—
|
|
|
|
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500,000(3)
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(1)
Represents time-vesting Class B-1 Units of Crackle Holdings, L.P. (“Holdings”). 20% of the units vest on the first anniversary of the Vesting Commencement Date, and 10% vest every six months thereafter (commencing on the sixth-month anniversary of the initial vesting date and ending on the five-year anniversary of the Vesting Commencement Date), subject to continued employment through the applicable vesting dates. For additional details on the vesting terms of the units see “Incentive Units” below. The “Vesting Commencement Date” is (i) the grant date with respect to the Class B-1 Units granted on October 23, 2017 and (ii) August 1, 2019 with respect to the Class B-1 Units granted on August 28, 2019.
(2)
Represents Class B-2 Units of Holdings, which are subject to time-vesting requirements and vesting requirements that will be memorialized in a future agreement to reflect the intention that such vesting match that of the 2019 Class B-2 Units based on the achievement of a specified fair market value for a Class A Unit of Holdings (both of which vesting requirements must be satisfied for the units to fully vest). The units time-vest as follows: 20% of the units vest on the first anniversary of the grant date, and 10% vest every six months thereafter (commencing on the six month anniversary of the initial vesting date and ending on the five-year anniversary of the grant date), subject to continued employment through the applicable vesting dates. The other vesting requirement will be modified to match vesting of the 2019 Class B-2 Units and be satisfied if the fair market value of a Class A Unit of Holdings equals or exceeds $2.50. For additional details on the vesting terms of the units see “Incentive Units” below.
(3)
Represents Class B-2 Units of Holdings subject to time-vesting requirements and vesting requirements based on the achievement of a specified fair market value for a Class A Unit of Holdings (both of which vesting requirements must be satisfied for the units to fully vest). The units time-vest as follows: 20% of the units vest on the one year anniversary of August 28, 2019, and 10% vest every six months thereafter (commencing on the six month anniversary of the initial vesting date and ending on the five year anniversary of August 28, 2019), subject to continued employment through the applicable vesting dates (except as otherwise described in the “Incentive Units” section below). The other vesting requirements will be satisfied when the fair market value of a Class A Unit of Holdings equals or exceeds $2.50. For additional details on the vesting terms of the units see “Incentive Units” below.
(4)
Amounts in this column represent the value of the Class B-1 Units based on the appreciation of the value of our business from and after the date of grant through the date of our most recent valuation prior to December 25, 2020.
(5)
The equity value of our business had not appreciated to a level that would have created value in the Class B-2 Units as of the date of our most recent valuation prior to December 25, 2020. Therefore, we believe the market value of the Class B-2 Units was zero on that date.
Incentive Units
Crackle Holdings, L.P. (“Holdings”) maintains the 2017 Incentive Plan pursuant to which it may grant Class B-1 Units and Class B-2 Units of Holdings (collectively, “Incentive Units”) to certain employees, directors and other service providers (including our named executive officers) of Holdings and its subsidiaries. The Incentive Units are intended to constitute “profits interests” within the meaning of Revenue Procedures 93-27 and 2001-43, and provide a significant alignment between our named executive officers and the Company. As profits interests, the Incentive Units have no value for tax purposes on the date of grant, and have economic characteristics similar to stock appreciation rights (i.e. representing the rights to share in any increase in the equity value of Holdings that exceeds specified thresholds).
Class B-1 Units granted under the 2017 Incentive Plan are subject to time-based vesting conditions, and Class B-2 Units are subject to both time-based vesting conditions and conditions relating to achievement of a specified value for a Class A Unit (both of which must be satisfied for the Class B-2 Units to fully vest). Except as described below, vesting is contingent upon each named executive officer’s continued employment through each applicable vesting date. As set forth in the “Outstanding Equity Awards As of the End of Fiscal Year 2020” table above, our named executive officers were granted Class B-1 Units in 2017 and 2019 (the “2017 Class B-1 Units” and “2019 Class B-1 Units,” respectively), and Class B-2 Units granted in 2017 and 2019 (the “2017 Class B-2 Units” and “2019 Class B-2 Units,” respectively).
The 2017 Class B-1 Units and 2019 Class B-1 Units are subject to time-based vesting, with (i) 20% vesting on the first anniversary of the grant date (in the case of the 2017 Class B-1 Units) or on the first anniversary of August 1, 2019 (in the case of the 2019 Class B-1 Units), and (ii) 10% vesting every six months thereafter (commencing on the six month anniversary of the initial vesting date and ending on the five year anniversary of the grant date or August 1, 2019, as applicable).
The 2017 Class B-2 Units and 2019 Class B-2 Units are subject to time-based vesting requirements and vesting requirements that will be memorialized (if not already memorialized) in a future agreement to reflect the intention that such vesting match that of the 2019 Class B-2 Units based on the achievement of a specified fair market value for a Class A Unit of Holdings (both of which vesting requirements must be satisfied for the units to fully vest). The 2017 Class B-2 Units time-vest pursuant to the same time-vesting schedule as the 2017 Class B-1 Units. The other vesting requirement will be modified (as applicable) to match vesting of the 2019 Class B-2 Units and be satisfied if the fair market value of a Class A Unit of Holdings equals or exceeds $2.50. The 2019 Class B-2 Units time-vest, with 20% time-vesting on the first anniversary of August 28, 2019, and 10% vesting every six months thereafter (commencing on the six month anniversary of the initial vesting date and ending on the five year anniversary of August 28, 2019), and the other vesting requirement will be satisfied when the fair market value of a Class A Unit of Holdings equals or exceeds $2.50.
In the event of a Sponsor Exit, (i) the vesting of the 2017 Class B-1 Units will fully accelerate, (ii) the vesting of a portion of the 2019 Class B-1 Units will accelerate, with such portion being the portion of units scheduled to vest on or prior to the third anniversary of August 1, 2019 to the extent that such units are unvested as of the Sponsor Exit, and (iii) the time-vesting condition of the Class B-2 Units will be deemed to be satisfied. In general, the named executive officers must be employed as of the Sponsor Exit event to receive such acceleration benefits. However, with respect to the 2019 Class B-1 Units and 2019 Class B-2 Units, if the executive’s employment is terminated without cause prior to the first anniversary of a Sponsor Exit, the time-vesting conditions will be deemed to be satisfied as of the date of such termination. “Sponsor Exit” generally means the first to occur of (i) the date on which on which Hellman & Friedman reduces its direct or indirect equity investment in Holdings to less than 20% of the outstanding number of units of Holdings on a fully diluted basis or (ii) a sale of Holdings (as defined in the 2017 Incentive Plan and which includes, for example, a transaction where more than 50% of Holdings’ outstanding voting securities are acquired or a sale of all or substantially all of Holdings’ assets). This Offering will not constitute a Sponsor Exit.
Each of the named executive officers were required to enter into a Non-Interference Agreement as a condition to receiving their respective Incentive Units, and Mr. Heyman was also required to reaffirm the restrictive covenants set forth in his employment agreement. For additional details on each named executive officer’s restrictive covenants, see “Employment Agreements” above. In the event a named executive officer materially breaches (and does not cure) his Non-Interference Agreement or, in the case of Mr. Heyman, the restrictive covenants set forth in his employment agreement, his vested and unvested Incentive Units would be immediately forfeited.
As described in the “Actions in Connection with this Offering” section below, unvested Incentive Units will be exchanged for shares of restricted stock of the Company and vested Incentive Units will be exchanged for shares of common stock in connection with this Offering.
Termination and Change in Control Provisions
Severance
The employment agreement entered into with Mr. Heyman and offer letter agreements entered into with Mr. Carlet and Mr. Hindman each provide for severance benefits upon certain qualifying terminations of employment.
Under Mr. Heyman’s employment agreement:
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If Mr. Heyman’s employment is terminated due to his death or disability, he (or his heirs) will be entitled to receive a pro-rated portion of his annual bonus for the year in which his employment is
terminated, based on the number of days he was employed during the year, which will be payable at the same time annual bonuses for that year are payable to other active employees of the Company.
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If Mr. Heyman’s employment is terminated by Mr. Heyman for good reason (as defined in his employment agreement) or by the Company without cause (as defined in his employment agreement), then the Company (i) will pay Mr. Heyman his base salary for twelve months after the date of termination (payable in installments, provided that this amount will be paid in a lump sum if the termination occurs within 30 days on or following a Sponsor Exit (as defined above)), and (ii) will pay Mr. Heyman a pro-rated portion of his annual bonus for the year in which his employment is terminated, based on the number of days he was employed during the year, which will be payable at the same time annual bonuses for that year are payable to other active employees of the Company. In addition, if Mr. Heyman elects to continue to participate in the Company’s health insurance plans following his termination, the Company will reimburse Mr. Heyman for the cost of his medical and dental insurance premiums, at the same rate the Company contributed to his insurance premiums as of the date of termination, until twelve months after the date of termination or, if earlier, the date Mr. Heyman begins new employment where he is offered participation in a group health plan. Such severance benefits are contingent upon Mr. Heyman’s execution and non-revocation of a general release of claims in favor of the Company, and continued compliance with the restrictive covenants set forth in his employment agreement.
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If the Company gives notice to Mr. Heyman that his employment is not to be extended for a renewal term at the expiration of the initial five-year term, and Mr. Heyman then resigns effective as of the expiration of the initial term and gives the Company notice of his resignation within 30 days after receipt of the Company’s notice of nonrenewal, the Company will continue to pay Mr. Heyman his base salary for six months after the date of termination, subject to Mr. Heyman’s execution and non-revocation of a general release of claims in favor of the Company, and continued compliance with the restrictive covenants set forth in his employment agreement.
Under Mr. Carlet’s offer letter, if Mr. Carlet’s employment is terminated by the Company without cause or by Mr. Carlet for good reason (as defined in his offer letter, as amended), the Company will pay Mr. Carlet his base salary for six months after the date of termination, subject to Mr. Carlet’s execution and non-revocation of a general release of claims in favor of the Company, and continued compliance with the restrictive covenants to which he is subject.
Under Mr. Hindman’s offer letter, if Mr. Hindman’s employment is terminated by the Company or by Mr. Hindman for good reason (as defined in the offer letter, as amended), the Company will pay Mr. Hindman severance in accordance with its severance guidelines, which would entitle Mr. Hindman to twelve months of base salary pursuant to the terms thereof, subject to his execution and non-revocation of a general release of claims in favor of the Company, and continued compliance with the restrictive covenants to which he is subject.
Equity Awards- Change in Control and Termination Provisions
As described in the “Equity Awards” section above, the Incentive Units granted to our named executive officers are subject to certain acceleration provisions that are triggered upon a Sponsor Exit (which includes a sale of Holdings). Certain Incentive Unit awards also include vesting terms that apply in connection with a termination without cause. See “Equity Awards” for additional details.
2021 Employee Stock Purchase Plan
Our board of directors expects to adopt, and we expect our stockholders to approve, the 2021 Employee Stock Purchase Plan prior to the completion of the offering, which we refer to as the Employee Stock Purchase Plan for purposes of this disclosure. Under the Employee Stock Purchase Plan, our employees, and those of our subsidiaries, may purchase shares of our common stock during pre-specified offering periods. Our named executive officers will be eligible to participate in the Employee Stock Purchase Plan on the same terms and conditions as all other participating employees.
Administration. The Employee Stock Purchase Plan will be administered by a committee of our board of directors, which we refer to as the Committee for purposes of this disclosure. The Committee will
have full authority to administer the Employee Stock Purchase Plan and make and interpret rules and regulations regarding administration of the Employee Stock Purchase Plan as it may deem necessary or appropriate.
Shares Available Under the Employee Stock Purchase Plan. The Employee Stock Purchase Plan initially reserves shares for issuance, which is subject to increase on the first day of each fiscal year beginning with the 2022 fiscal year in an amount equal to the lesser of (i) the positive difference, if any, between (x) 1% of the outstanding common stock of the Company on the last day of the immediately preceding fiscal year and (y) the available plan reserve on the last day of the immediately preceding fiscal year and (ii) a lower number of shares of our common stock as determined by the Committee. The number of shares available for issuance under the Employee Stock Purchase Plan is subject to adjustment for certain changes in our capitalization.
Eligible Employees. All of our employees and those of our subsidiaries will be eligible to participate in the Employee Stock Purchase Plan, except for employees who, immediately after grant of an option under the Employee Stock Purchase Plan, would own 5% or more of the combined voting power or value of all of our issued and outstanding stock.
Participation. Eligible employees may elect to participate in the Employee Stock Purchase Plan by filing a subscription agreement with us prior to any offering period indicating the amount of eligible compensation to be withheld from payroll during that offering period and applied to the Employee Stock Purchase Plan. Once enrolled in the Employee Stock Purchase Plan, a participant shall continue to participate in subsequent offering periods until such participant terminates employment or withdraws from any offering period.
Eligible Compensation. Eligible employees may authorize payroll deductions of 1% to 15% of such employees’ base compensation on each payroll date that falls within an offering period. Payroll deductions shall commence on the first payroll date following the beginning of the offering period and shall continue until the participant withdraws from an offering period or terminates employment. Participants may not acquire rights to purchase more than $25,000 of our common stock under the Employee Stock Purchase Plan for any calendar year.
Offering Periods. We plan to offer our common stock to participants during offering periods of up to 27 months, with expected offering periods of 6 months, beginning in 2021 on or after the completion of this offering.
Purchase of Shares. Shares of our common stock will be automatically purchased for the accounts of participants at the end of each offering period with their elected payroll deductions accumulated during the offering period. Shares will be purchased at a discounted per-share purchase price equal to 85% of the per-share closing price of our common stock on the last day of the applicable offering period.
Cancellation of Election to Purchase. A participant may cancel his or her participation in the Employee Stock Purchase Plan, but may not reduce or increase his or her contributions during an offering period. Termination of a participant’s employment for any reason will also terminate such participant’s participation in the Employee Stock Purchase Plan. In any of these cases, the participant is entitled to receive a refund of the payroll deductions collected on his or her behalf.
Effect of a Change in Control. Upon a future change in control of the Company, the administrator may, in its sole discretion, (i) shorten an offering period to provide for a purchase date on or prior to the change in control date or (ii) provide for the assumption of the purchase rights under the Employee Stock Purchase Plan and substitution of rights to purchase shares of the successor company in accordance with Section 424 of the Code.
Termination and Amendment. Our board of directors or the Committee may amend or terminate the Employee Stock Purchase Plan at any time, although no amendment may be made (i) that adversely affects the rights of any participant participating in an offering period or (ii) without approval of our stockholders to the extent such approval would be required under Section 423 of the Code.
Retirement Plan
The Company maintains a 401(k) defined contribution retirement plan pursuant to which all employees age 21 or older may contribute a portion of their annual earnings, up to the limits set by the Internal Revenue Code, on a pre-tax or after-tax (Roth) basis. The Company makes matching contributions to participating employees’ plan accounts equal to 100% of the first 3% of earnings that an employee elects to contribute, plus 50% of the next 3% of earnings that an employee elects to contribute, limited to a maximum annual amount as established by the IRS. The maximum matching contribution for employees in 2020 was $12,825. Matching contributions are 100% vested when made.
2021 Compensation Decisions
Base Salary
In February 2021, as part of an annual review of executive compensation, our board of directors increased Mr. Heyman’s salary to $700,000 (an increase of 7.7%), Mr. Carlet’s salary to $375,000 (an increase of 11.9%) and Mr. Hindman’s salary to $355,000 (an increase of 6.0%). These increases were retroactive to January 1, 2021 and were awarded as part of an overall review of executive compensation based on market data for a comparator group of publicly traded companies comparable in size to the Company across several financial metrics and with similar products or sales channels.
Annual Bonus/Non-Equity Incentive Plan Compensation
In February 2021, our board of directors adopted the 2021 Annual Incentive Plan. This plan covers all bonus-eligible employees. Under the plan, each participating employee is assigned a target bonus amount which is determined by that employee’s position. For each participating employee, including our named executive officers, 80% of their potential bonus is determined based on company performance and 20% is based on their individual performance. The measure for assessing company performance in 2021 is Compensation EBITDA. The measure for assessing individual performance is the degree to which the employee achieves goals that were defined for that employee at beginning of the year. Our board of directors, in its discretion, may also award bonuses to our named executive officers outside of the terms of the 2021 Annual Incentive Plan.
Actions in Connection with this Offering
Equity Conversion
In connection with this offering, it is currently anticipated that all outstanding unvested Incentive Units, including those held by our named executive officers, will be replaced with newly issued shares of our restricted common stock on the basis of a ratio that takes into account the number of unvested Incentive Units held, the applicable distribution threshold applicable to such Class B Units, and the value of distributions that the holder would have been entitled to receive had Holdings liquidated on the date of such replacement in accordance with the terms of the distribution “waterfall” set forth in the Partnership Agreement. Vested Incentive Units will be exchanged into shares of our common stock using the same formula. It is currently anticipated that (i) the unvested restricted shares of our common stock that the named executive officers receive in respect of their unvested Class B-1 Units will be subject to the same vesting terms that apply to the Class B-1 Units prior to the Equity Conversion, and (ii) the unvested restricted shares of our common stock that the named executives officers receive in respect of their Class B-2 Units will vest based upon achievement of one or more of (A) the Total Return Hurdle, (B) the Average Return Hurdle and/or (C) the VWAP Hurdle (each as defined below), as follows:
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100% of the restricted shares will vest in the event Hellman & Friedman receives cash proceeds in respect of its investment in the company (i.e. cash distributions paid to Hellman & Friedman or cash proceeds received from the sale of any of its equity interests in the company) that equal or exceed $1,399,409,115 in the aggregate (whether prior to, in connection with, or following this offering) (the “Total Return Hurdle”). If the Total Return Hurdle is not achieved prior to or in connection with a change in control of the company, all restricted shares will be forfeited for no consideration.
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100% of the restricted shares will vest upon an Exit Trade (as defined below) if the cash received in respect of the Sponsor Shares (as defined below) sold prior to and including the Exit Trade exceeds (a) the Price Target (as defined below) multiplied by (b) the Sponsor Shares sold prior to and inclusive of the Exit Trade (the “Average Return Hurdle”). In addition, upon each trade or other sale of Sponsor Shares (as defined below) following the Exit Trade, but prior to the time in which the Sponsor ceases to hold any of the Initial Sponsor Shares (as defined below), if the Average Return Hurdle is satisfied, 100% of restricted shares will vest. “Price Target” is the amount per share of our common stock that is equivalent to a price per Class A Unit of Holdings equal to $2.50 (as may be equitably adjusted for any units splits, recapitalizations or other similar events). An “Exit Trade” is any trade or other sale of common stock issued to Hellman & Friedman in connection with this offering in respect of Class A Units of Holdings held by Hellman & Friedman (each, a “Sponsor Share”, and the aggregate Sponsor Shares so received by the Sponsor, the “Initial Sponsor Shares”) following which Hellman & Friedman holds 10% or less of the Initial Sponsor Shares.
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The restricted shares will also vest if certain volume weighted average price (“VWAP”) hurdles are achieved, as follows: prior to an Exit Trade, or following an Exit Trade to the extent such trade does not result in satisfaction of the Average Return Hurdle, if, during the period commencing on the earlier of (a) the first anniversary of this offering or (b) the first Exit Trade, and ending on February 4, 2024, the price per share of common ctock, measured using a 30-day VWAP, is at least equal to the Price Target (the “VWAP Hurdle”), then: 42% of the restricted shares will vest on August 4, 2022 (or such later date on which the VWAP Hurdle is achieved), an additional 42% of the restricted shares will vest on August 4, 2023 (or such later date on which the VWAP Hurdle is achieved), and the remaining 16% of the restricted shares will vest on February 4, 2024.
Vesting with respect to the restricted shares received in respect of Class B-2 Units is subject to the named executive officer’s continued employment through the applicable vesting dates. To the extent any such restricted shares have not vested on or prior to February 4, 2024, any such unvested restricted shares will be forfeited for no consideration.
Holders of Incentive Units (including the named executive officers) will also receive a certain number of stock options to purchase common shares of the company following the offering (“Leverage Replacement Options”), which are intended to preserve the upside of the Class B-1 Units and Class B-2 Units as of immediately prior to this offering that would otherwise be lost as a result of the Equity Conversion. The Leverage Replacement Options received to preserve the upside of the Class B-1 Units will be subject to the same vesting terms and conditions as applicable to the restricted shares received with respect to the unvested Class B-1 Units, and the Leverage Replacement Options received to preserve the upside of the Class B-2 Units will be subject to the same vesting terms and conditions as applicable to the restricted shares received with respect to the unvested Class B-2 Units. Based on an assumed initial public offering price of $ per share (the midpoint of the estimated price range set forth on the cover page of this prospectus), the number of Leverage Replacement Options expected to be granted to each named executive officer with respect to the unvested Class B-1 Units and Class B-Units is as follows: for Mr. Heyman, and , respectively; for Mr. Carlet, and , respectively; and for Mr. Hindman and , respectively.
In addition, holders of Incentive Units will also receive a cash payment equal to $ per vested and unvested Class B-1 and Class B-2 Unit in lieu of participation in the tax receivable agreement (the “Additional Payment”). Additional Payments payable with respect to vested Class B-1 Units and Class B-2 units will be paid to such holders in connection with this offering. For holders below the Executive Vice President-level, Additional Payments with respect to unvested Class B-1 Units and Class B-2 Units will be paid at the same time as the Equity Conversion. For holders at or above the Executive Vice President-level (including the named executive officers):
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Additional Payments payable with respect to unvested Class B-1 Units that are scheduled to vest by October 31, 2022 pursuant to the time-vesting schedule applicable to such Class B-1 Units as of immediately prior to the Equity Conversion will be paid to such Holder at the same time as the Equity Conversion. All other Additional Payments with respect to unvested Class B-1 Units will be held in escrow, subject to the same vesting conditions as the restricted stock received in exchange for the Class B-1 Units; provided that such vesting schedule shall be accelerated by a certain number of days equal to number of days following the Equity Conversion to October 31, 2022.
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Additional Payments with respect to any Class B-2 Units will be held in escrow, subject to the same vesting conditions as the related performance-based restricted shares.
The 2017 Incentive Plan will be terminated upon the effectiveness of this offering. The precise number of restricted shares to be delivered in respect of unvested Class B-1 and Class B-2 Units, shares to be delivered in respect of vested Class B-1 and Class B-2 Units, and the number of Leverage Replacement Options to be granted to each of the named executive officers will be based on the initial public offering price. The following table sets forth the assumed number and value of restricted shares and shares to be received in connection with the Equity Conversion that each of our named executive officers will receive based on an assumed initial public offering price of $ per share (the midpoint of the estimated price range set forth on the cover page of this prospectus).
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Class B-2
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Restricted
Shares
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Exchange for
Unvested
Class B-2
Units
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John Heyman
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Michael Carlet
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Jeffrey Hindman
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2021 Incentive Plan
Our board of directors expects to adopt, and we expect our stockholders to approve, the 2021 Incentive Plan prior to the completion of the offering, in order to provide a means through which to attract, retain and motivate key personnel. Awards under the 2021 Incentive Plan may be granted to any (i) individual employed by us or our subsidiaries (other than those U.S. employees covered by a collective bargaining agreement unless and to the extent that such eligibility is set forth in such collective bargaining agreement or similar agreement); (ii) director or officer of us or our subsidiaries; or (iii) consultant or advisor to us or our subsidiaries who may be offered securities registrable pursuant to a registration statement on Form S-8 under the Securities Act. The 2021 Incentive Plan will be administered by the compensation committee of our board of directors or such other committee of our board of directors to which it has properly delegated power, or if no such committee or subcommittee exists, our board of directors (as applicable, the “Committee”).
The 2021 Incentive Plan initially reserves shares for issuance, which is subject to increase on the first day of each fiscal year beginning with the 2022 fiscal year in an amount equal to the lesser of (i) the positive difference, if any, between (x) % of the outstanding common stock on the last day of the immediately preceding fiscal year and (y) the available plan reserve on the last day of the immediately preceding fiscal year and (ii) a lower number of shares of our common stock as determined by our board of directors; provided, however, that this automatic share reserve increase shall not apply following the tenth (10th) anniversary of the effective date of the plan.
All awards granted under the 2021 Incentive Plan will vest and/or become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee. Awards available for grant under the 2021 Incentive Plan include non-qualified stock options and incentive stock options, restricted shares of our common stock, restricted stock units, other equity-based awards tied to the value of our shares and cash-based awards.
Awards other than cash-based awards are generally subject to adjustment in the event of (i) any dividend (other than regular cash dividends) or other distribution, recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, split-off, spin-off, combination, repurchase or exchange of shares of common stock or other securities, or other similar transactions or events, or (ii) unusual or nonrecurring events affecting the Company, including changes in applicable rules, rulings, regulations or other requirement. In addition, in connection with a change in control, the Committee may, in its sole
discretion, provide for any one or more of the following: (i) a substitution or assumption of, acceleration of the vesting of, the exercisability of, or lapse of restrictions on, any one or more outstanding awards and (ii) cancellation of any one or more outstanding awards and payment to the holders of such awards that are vested as of such cancellation (including any awards that would vest as a result of the occurrence of such event but for such cancellation) the value of such awards, if any, as determined by the Committee.
Our board of directors may amend, alter, suspend, discontinue, or terminate the 2021 Incentive Plan or any portion thereof at any time, but no such amendment, alteration, suspension, discontinuance or termination may be made without stockholder approval if (i) such approval is required under applicable law; (ii) it would materially increase the number of securities which may be issued under the 2021 Incentive Plan (except for adjustments in connection with certain corporate events); or (iii) it would materially modify the requirements for participation in the 2021 Incentive Plan. Any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any participant or any holder or beneficiary of any award will not to that extent be effective without such individual’s consent.
All awards granted under the 2021 Incentive Plan are subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with (i) any clawback, forfeiture or other similar policy adopted by our board of directors or the Committee and as in effect from time to time and (ii) applicable law.
Non-Employee Director Compensation
For fiscal year 2020, we did not pay compensation or grant equity awards to directors for their service on our board of directors, other than to Kenneth R. Wagers III and Martin Plaehn, our two directors who are not affiliated with Hellman & Friedman and are not employees. Each of Messrs. Wagers and Plaehn received a quarterly fee of $18,750 for serving as directors, and Mr. Wagers also received a quarterly fee of $6,250 for serving as chair of our Audit and Risk Management Committee.
In addition, Messrs. Wagers and Mr. Plaehn each received a grant of 71,942 restricted Class A Units of Holdings on August 1, 2020 (the “2020 restricted units”). One-third of the 2020 restricted units vest upon each of the first, second, and third anniversary of the grant date, provided that the units accelerate upon a Sponsor Exit (as defined above). Vesting is generally subject to each director’s continued service through the applicable vesting date (or Sponsor Exit, as applicable), provided that the 2020 restricted units will fully accelerate upon a termination as a result of death or disability or termination by the Company without cause on or following the first anniversary of the date of grant. If Messrs. Wagers or Plaehn’s service as a director is terminated without cause prior to first anniversary of grant, a pro-rata portion of Messrs. Wagers’ or Plaehn’s 2020 restricted units (as applicable) will vest, with such portion equal to the total number of restricted units granted to Mr. Wagers or Mr. Plaehn (as applicable), multiplied by a fraction, the numerator of which is the number of days that have elapsed since the grant date and the denominator of which is 1,096. Mr. Plaehn also received 71,942 restricted Class A Units of Holdings on August 1, 2019 (the “2019 restricted units”), which are subject to the same vesting terms as his 2020 restricted units.
Our directors are also reimbursed for reasonable travel and related expenses associated with attendance at board or committee meetings.
The following table provides summary information concerning compensation paid or accrued by us to or on behalf of our non-employee directors for services rendered to us during the last fiscal year.
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Fees Earned
or Paid
in Cash
($)
|
|
|
Stock
Awards
($)
|
|
|
Total
($)
|
|
|
Martin Plaehn
|
|
|
|
|
75,000(1)
|
|
|
|
|
|
100,000(3)
|
|
|
|
|
|
175,000
|
|
|
|
Kenneth R.
Wagers III
|
|
|
|
|
50,000(2)
|
|
|
|
|
|
100,000(3)
|
|
|
|
|
|
150,000
|
|
|
(1)
Consists of cash fees of $18,750 per quarter for serving as director.
(2)
Consists of cash fees of $18,750 per quarter for serving as director and cash fees of $6,250 per quarter for serving as chair of our Audit and Risk Management Committee. Mr. Wagers joined our board of directors in the third quarter of 2020.
(3)
Represents the aggregate grant date fair value, calculated in accordance with ASC Topic 718, of 71,942 restricted Class A Units of Holdings granted to each of Messrs. Plaehn and Wagers on August 1, 2020 (the “grant date”), all of which were unvested as of the end of fiscal year 2020. One-third of the restricted units vest upon each of the first, second and third anniversary of the grant date, provided that such units accelerate upon a Sponsor Exit. For additional details on the vesting terms of such restricted units, see above. The assumptions used in calculating the grant-date fair value of the restricted units reported in this column are set forth in Note 12 to the consolidated audited financial statements included elsewhere in this prospectus. As of the end of fiscal year 2020, Mr. Plaehn held a total of 119,903 unvested restricted units (comprised of 47,961 unvested 2019 restricted units and 71,942 unvested 2020 restricted units), and Mr. Wagers held a total of 71,942 unvested restricted units (comprised of his unvested 2020 restricted units).
In connection with this offering and with assistance from Korn Ferry as independent compensation consultant, we analyzed competitive market data relating to director compensation programs, including cash retainers, equity awards and stock ownership guidelines.
As a result of this analysis, in connection with this offering, our board of directors has approved a new Non-Employee Director compensation program. Under the new program, each Non-Employee Director will receive an annual retainer of $200,000, consisting of an annual cash retainer of $75,000 payable in quarterly installments and an additional $125,000, which will be paid in the form of an equity-based award.
As part of this program, the chairpersons and members of the following committees will receive the additional fixed annual cash retainers (payable in quarterly installments in arrears) listed below. We reimburse all directors for travel and other expenses directly related to director activities and responsibilities.
|
Committee
|
|
|
Committee Member
Retainer
|
|
|
Committee Chair
Retainer
|
|
|
Audit and Risk Management Committee
|
|
|
|
$
|
10,000
|
|
|
|
|
$
|
25,000
|
|
|
|
Compensation Committee
|
|
|
|
$
|
7,500
|
|
|
|
|
$
|
15,000
|
|
|
|
Nominating and Corporate Governance Committee
|
|
|
|
$
|
7,500
|
|
|
|
|
$
|
15,000
|
|
|
In connection with this offering we will adopt stock ownership guidelines for our Non-Employee Directors in order to better align our eligible directors’ financial interests with those of our stockholders by requiring such directors to own a minimum level of our shares. Each of our Non-Employee Directors will be required to own stock in an amount equal to five times the amount of the annual cash retainer (excluding committee retainers) within five years of becoming subject to the guidelines.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Stockholders’ Agreement
We intend to enter into a stockholders agreement with Hellman & Friedman and the other unit holders of the Investor, which include certain of our directors, officers and other employees, in connection with this offering.
This stockholders agreement will provide that following the completion of this offering, our board of directors will consist of members. Hellman & Friedman will have the right to nominate to our board of directors a number of nominees equal to (x) the total number of directors comprising our board of directors at such time, multiplied by (y) the percentage of our outstanding common stock held from time to time by Hellman & Friedman. For purposes of calculating the number of directors that Hellman & Friedman will be entitled to nominate, any fractional amounts are rounded up to the nearest whole number. In addition, the board of directors will be divided into three classes and serve staggered, three year terms. For so long as we have a classified board, the Hellman & Friedman-nominated board members will be divided by Hellman & Friedman as evenly as possible among the classes of directors. After giving effect to this offering, Hellman & Friedman will have the right to nominate up to of our directors.
Pursuant to the stockholders agreement, we will include the Hellman & Friedman nominees on the slate that is included in our proxy statement relating to the election of directors of the class to which such persons belong and provide the highest level of support for the election of each such person as we provide to any other individual standing for election as a director. In addition, pursuant to the stockholders agreement, Hellman & Friedman will agree with the Company to vote in favor of the Company slate that is included in our proxy statement.
In the event that a Hellman & Friedman nominee ceases to serve as a director for any reason (other than the failure of our stockholders to elect such individual as a director), Hellman & Friedman will be entitled to appoint another nominee to fill the resulting vacancy.
The stockholders agreement will contain provisions that entitle the stockholder parties thereto to certain rights to have their securities registered by us under the Securities Act. Hellman & Friedman will be entitled to an unlimited number of “demand” registrations, subject to certain limitations. In addition, the stockholder parties to the stockholders agreement, including Hellman & Friedman, are entitled to customary “piggyback” registration rights. The stockholders agreement will provide that we will pay certain expenses of the stockholder parties relating to such registrations and indemnify them against certain liabilities which may arise under the Securities Act. These securities will represent approximately % of our outstanding common stock after this offering, or % if the underwriters exercise in full their option to purchase additional shares.
Employment Agreements
We have entered into employment agreements with our executive officers. For more information regarding employment agreements with our named executive officers, see “Executive Compensation — Employment Agreements.”
Tax Receivable Agreement
In connection with this offering, we expect to be able to utilize net operating losses and certain other tax benefits that arose prior to or in connection with this offering and are therefore attributable to the TRA Participants. These tax benefits will reduce the amount of tax that we would otherwise be required to pay in the future. We will enter into a tax receivable agreement that will provide for the payment by us to the TRA Participants of % of the amount of cash savings, if any, in U.S. federal, state, and local income tax that we actually realize, or are deemed to realize (calculated using certain assumptions), as a result of the utilization of such tax benefits, including certain tax benefits attributable to payments under the tax receivable agreement. We expect to benefit from the remaining % of cash tax savings, if any, in income tax we realize. With respect to certain pre-IPO owners that are not TRA Participants, we intend to make a cash dividend of approximately $ million to the Investor, which will be used in part to pay such
pre-IPO owners for their interests in the sum of (i) the current fair market value of the tax receivable and (ii) the total cash distribution that will be made to such pre-IPO owners in lieu of their participation in the tax receivable agreement. A portion of the cash distribution associated with units of the Investor that are subject to vesting requirements will be held in escrow by the Company subject to similar vesting requirements as the shares of restricted stock received in exchange for such units. Distributions made to pre-IPO owners related to their vested Incentive Units as of the IPO date will be recorded as an expense in the period the distributions are made (approximately $ million as of March 26, 2021). Distributions related to unvested Incentive Units as of the date of this offering will be recorded as compensation expense over the remaining required service period (approximately $ million to be recognized over the remaining estimated service period). The cash distribution will be in addition to any payments we make under the tax receivable agreement and will not reduce the amounts we will otherwise be required to pay under the tax receivable agreement.
For purposes of the tax receivable agreement, the cash tax savings in income tax will be computed by comparing the actual income tax liability of the Company (calculated with certain assumptions, including using an assumed state and local tax rate to calculate tax benefits) to the amount of such taxes that the Company would have been required to pay without giving effect to the tax benefits subject to the tax receivable agreement. The term of the tax receivable agreement will continue until all such tax benefits have been utilized or expired or we exercise our right to terminate the tax receivable agreement for an amount based on the agreed payments remaining to be made under the agreement (as described in more detail below), or certain changes of control occur or we breach any of our material obligations under the tax receivable agreement. In the case of a change of control or a material breach of our obligations, all obligations generally will be accelerated and due as if we had exercised our right to terminate the tax receivable agreement. Estimating the amount of payments that may be made under the tax receivable agreement is by its nature imprecise, insofar as the calculation of amounts payable depends on a variety of factors. The amount and timing of any payments under the tax receivable agreement will vary depending upon a number of factors, including the amount, character and timing of our income. We will be required to pay % of the cash tax savings, if any, as and when realized. If we do not have taxable income, we are not required (absent circumstances requiring an early termination payment, other acceleration of our obligations under the tax receivable agreement or a change of control) to make payments under the tax receivable agreement for that taxable year because no cash tax savings will have been realized. However, unutilized deductions that do not result in realized benefits in a given tax year as a result of insufficient taxable income may be applied to taxable income in future years and accordingly would impact the amount of cash tax savings in such future years and the amount of corresponding payments under the tax receivable agreement in such future years.
We expect that the payments that we may make under the tax receivable agreement will be material. There may be a material negative effect on our liquidity if, as a result of timing discrepancies or otherwise, the payments under the tax receivable agreement exceed the actual cash tax savings that we realize in respect of the tax benefits subject to the tax receivable agreement. Late payments under the tax receivable agreement generally will accrue interest at an uncapped rate equal to LIBOR plus 500 basis points per annum until paid. The payments under the tax receivable agreement are not conditioned upon continued ownership of us by the TRA Participants.
Furthermore, we may elect to terminate the tax receivable agreement early with respect to all TRA Participants by making an immediate payment equal to the present value of the anticipated future cash tax savings. In determining such anticipated future cash tax savings, the tax receivable agreement includes several assumptions, including (i) that we will have sufficient taxable income in each future taxable year to fully realize potential tax savings and utilize the benefits that are the subject of the tax receivable agreement in the manner specified in the agreement and (ii) the tax rates for future years will be those specified in the law as in effect at the time of termination. In addition, the present value of such anticipated future cash tax savings is discounted at a rate equal to the lesser of (i) 6.5% per annum, compounded annually, and (ii) LIBOR plus 200 basis points. Assuming that LIBOR were to be %, we estimate that the aggregate amount of these termination payments would be approximately $ million if we were to exercise our termination right immediately following this offering.
Upon certain changes of control, in the event that we breach any of our material obligations under the tax receivable agreement, whether as a result of a failure to make any payment when due, failure to honor
any other material obligation required thereunder or by operation of law as a result of the rejection of the tax receivable agreement in a case commenced under the federal bankruptcy laws or otherwise, or upon the occurrence of certain bankruptcy or insolvency proceedings involving us, then all obligations under the tax receivable agreement shall be automatically accelerated and shall be immediately due and payable, and such obligations shall be calculated in the manner described above with regard to the exercise of our termination rights. The TRA Participants will be entitled to elect to receive such accelerated amounts or to seek specific performance of the agreement.
The tax receivable agreement contains procedures for the resolution of certain disputes as to amounts payable by us, including in the case of an early termination or an acceleration event. In general, disagreements on such matters that cannot be resolved by the parties themselves within specified time periods shall be submitted for binding determination by an expert third party in the manner provided in the tax receivable agreement. In addition, the tax receivable agreement contains mandatory arbitration provisions.
As a result of the change of control provisions, the early termination right or an acceleration event, we could be required to make payments under the tax receivable agreement that are greater than or less than the specified percentage of the actual cash tax savings that we realize in respect of the tax benefits subject to the tax receivable agreement. In these situations, our obligations under the tax receivable agreement could have a material negative impact on our liquidity.
Decisions made by the TRA Participants in the course of running our business may influence the timing and amount of payments that are received by the Investor under the tax receivable agreement. In addition, payments under the tax receivable agreement will be based on the tax reporting positions that we will determine. We will not be reimbursed for any payments previously made under the tax receivable agreement if a tax benefit is successfully challenged by the IRS. As a result, in certain circumstances, payments could be made under the tax receivable agreement in excess of our cash tax savings.
As a general matter, we intend to fund the required payments under the tax receivable agreement with cash provided by operations and available borrowings under our Credit Facility. In the event that these sources are insufficient to fund the required payments, we may need to seek additional equity or debt financing and/or sell assets. We may not be able to raise any such financing or sell such assets on terms acceptable to us or at all. If we are unable to fund our required payments under the tax receivable agreement, our business, results of operations, and financial condition could be materially and adversely affected. See “Risk Factors — Risks Related to this Offering and Ownership of our Common Stock — In certain cases, payments under the tax receivable agreement may be accelerated and/or significantly exceed the actual cash savings we realize in respect of the tax benefits subject to the tax receivable agreement” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity and Capital Resources — Tax Receivable Agreement.”
Indemnification of Directors and Officers
We have entered, or will enter, into an indemnification agreement with each of our directors and executive officers. The indemnification agreements, together with our amended and restated bylaws, will provide that we will jointly and severally indemnify each indemnitee to the fullest extent permitted by the DGCL from and against all loss and liability suffered and expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of the indemnitee in connection with any threatened, pending, or completed action, suit or proceeding. Additionally, we will agree to advance to the indemnitee all out-of-pocket costs of any type or nature whatsoever incurred in connection therewith. See “Description of Capital Stock — Limitations on Liability and Indemnification of Officers and Directors.”
Related Persons Transaction Policy
Prior to the completion of this offering, our board of directors will adopt a written policy on transactions with related persons, which we refer to as our “related person policy.” Our related person policy will require that all “related persons” (as defined in paragraph (a) of Item 404 of Regulation S-K) must promptly disclose to our general counsel any “related person transaction” (defined as any transaction that is anticipated would be reportable by us under Item 404(a) of Regulation S-K in which we were or are to be a participant and the amount involved exceeds $120,000 and in which any related person had or will have a direct or indirect material interest) and all material facts with respect thereto. Our general counsel
will communicate that information to our board of directors or to a duly authorized committee thereof. Our related person policy will provide that no related person transaction entered into following the completion of this offering will be executed without the approval or ratification of our board of directors or a duly authorized committee thereof. It will be our policy that any directors interested in a related person transaction must recuse themselves from any vote on a related person transaction in which they have an interest.
PRINCIPAL AND SELLING STOCKHOLDERS
The following table and accompanying footnotes set forth information with respect to the beneficial ownership by each of the following persons of the common stock of Snap One Holdings Corp. as of the date of this prospectus, assuming the Equity Conversion is effected immediately prior to the consummation of the offering:
•
each person known by us to own beneficially 5% or more of our outstanding shares of common stock;
•
the selling stockholders;
•
each of our directors;
•
each of our named executive officers; and
•
our directors and executive officers as a group.
The number of shares and percentages of beneficial ownership prior to this offering set forth below are based on the number of shares of our common stock to be issued and outstanding immediately prior to the consummation of this offering following completion of the Equity Conversion. Until the completion of the Equity Conversion, all of our common stock will be beneficially owned by the Investor. The number of shares and percentages of beneficial ownership after this offering set forth below are based on the number of shares of our common stock to be issued and outstanding immediately after the consummation of this offering and giving effect to the Equity Conversion assuming an initial public offering price of $ per share, which is the mid-point of the range set forth on the cover page of this prospectus, excluding any potential purchases pursuant to the directed share program relating to this offering. An increase or decrease in the assumed initial public offering price will impact the number of shares outstanding after consummation of this offering and the number of shares held by the persons and entities referred to in the table set forth below. See “Dilution.” In addition, see the definition of Equity Conversion for a description of the determination of shares of common stock exchanged or issued, as applicable, in connection with the Equity Conversion.
Beneficial ownership for the purposes of the following table is determined in accordance with the rules and regulations of the SEC. A person is a “beneficial owner” of a security if that person has or shares “voting power,” which includes the power to vote or to direct the voting of the security, or “investment power,” which includes the power to dispose of or to direct the disposition of the security or has the right to acquire such powers within 60 days. Securities that can be so acquired are deemed to be outstanding for purposes of computing such person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities and a person may be deemed to be a beneficial owner of securities as to which such person has no economic interest.
Unless otherwise noted in the footnotes to the following table, and subject to applicable community property laws, the persons named in the table have sole voting and investment power with respect to their beneficially owned common stock.
Except as otherwise indicated in the footnotes below, the address of each beneficial owner is c/o 1800 Continental Boulevard, Suite 200, Charlotte, North Carolina 28273.
|
Name of Beneficial Owner
|
|
|
Shares Beneficially
Owned Prior to the
Offering
|
|
|
Shares to be
Sold in this Offering
|
|
|
Shares Beneficially
Owned After the Offering
|
|
|
|
|
|
|
|
|
|
If Underwriters’ Option
to Purchase Additional
Shares is Not Exercised
|
|
|
If Underwriters’ Option
to Purchase Additional
Shares is Exercised in Full
|
|
|
If Underwriters’ Option
to Purchase Additional
Shares is Not Exercised
|
|
|
If Underwriters’ Option
to Purchase Additional
Shares is Exercised in Full
|
|
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Shares
|
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Percentage
|
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Shares
|
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|
Percentage
|
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Shares
|
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|
Percentage
|
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|
Shares
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Percentage
|
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Shares
|
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|
Percentage
|
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|
5% Stockholders:
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H&F Investors(1)
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Directors and Named Executive Officers:
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John Heyman(2)
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Michael Carlet(3)
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Jeffrey Hindman(4)
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Erik Ragatz(5)
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Jacob Best(5)
|
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Annmarie Neal(5)
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Martin Plaehn(6)
|
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Adalio Sanchez
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Kenneth R. Wagers III(7)
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All directors and executive officers as a group (8 persons)(8)
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Other Selling Stockholders:
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Other(9)
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*
Indicates beneficial ownership of less than 1%.
(1)
Reflects (i) shares directly held by Hellman & Friedman Capital Partners VIII, L.P. (“Main Fund”), (ii) shares directly held by Hellman & Friedman Capital Partners VIII (Parallel), L.P. (“Parallel Fund”), (iii) shares directly held by HFCP VIII (Parallel-A), L.P. (“Parallel-A Fund”), (iv) shares directly held by H&F Executives VIII, L.P. (“Executives Fund”), (v) shares directly held by H&F Associates VIII, L.P. (“Associates Fund”) and (vi) shares held by H&F Copper Holdings VIII, L.P. (“Copper Fund”), collectively with Main Fund, Parallel Fund, Parallel-A Fund, Executives Fund and Associates Fund, the “H&F Funds”). H&F Copper Holdings VIII GP, LLC (“Copper GP”) is the general partner of Copper Fund and Main Fund is the managing member of Copper GP. Hellman & Friedman Investors VIII, L.P. (“Investors GP”) is the general partner of each of Main Fund, Parallel Fund, Parallel-A Fund, Executives Fund and Associates Fund, and H&F Corporate Investors VIII, Ltd. (“Investors Ltd.”) is the general partner of Investors GP. A three member board of directors of Investors Ltd. has voting and investment discretion over the shares held by the H&F Funds. Each of the members of the board of directors of Investors Ltd. disclaims beneficial ownership of such shares. The address of each entity named in this footnote is c/o Hellman & Friedman LLC, 415 Mission Street, Suite 5700, San Francisco, California 94105.
(2)
Includes shares of unvested restricted common stock, of which are expected to vest within 60 days of the date of this prospectus.
(3)
Includes shares of unvested restricted common stock, of which are expected to vest within 60 days of the date of this prospectus.
(4)
Includes shares of unvested restricted common stock, of which are expected to vest within 60 days of the date of this prospectus.
(5)
The address of each of Dr. Neal and Messrs. Best and Ragatz is c/o Hellman & Friedman LLC, 415 Mission Street, Suite 5700, San Francisco, California 94105
(6)
Includes shares of common stock, of which are expected to vest within 60 days of the date of this prospectus.
(7)
Includes shares of common stock, of which are expected to vest within 60 days of the date of this prospectus.
(8)
Includes shares of common stock, of which are expected to vest within 60 days of the date of this prospectus.
(9)
Consists of selling stockholders not otherwise listed in this table who collectively beneficially own less than 1% of our common stock. Includes shares of common stock, of which are expected to vest within 60 days of the date of this prospectus.
DESCRIPTION OF CAPITAL STOCK
General
In connection with this offering, we will amend and restate our amended and restated certificate of incorporation and our amended and restated bylaws. The following description summarizes the material terms of, and is qualified in its entirety by, our amended and restated certificate of incorporation and amended and restated bylaws, each of which will be in effect upon the consummation of this offering, the forms of which are filed as exhibits to the registration statement of which this prospectus is a part. For a complete description of our capital stock, you should refer to our amended and restated certificate of incorporation, amended and restated bylaws and the applicable provisions of Delaware laws. Under “Description of Capital Stock,” “we,” “us,” “our,” the “Company” and “our Company” refer to Snap One Holdings Corp. and its consolidated subsidiaries and “Hellman & Friedman” refers to the investment funds of Hellman & Friedman and its affiliates, so long as Hellman & Friedman owns shares of common stock of the Company.
Our purpose is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the DGCL. Upon the consummation of this offering, our authorized capital stock will consist of shares of common stock, par value $0.01 per share, and shares of preferred stock, par value $0.01 per share. No shares of preferred stock will be issued or outstanding immediately after the public offering contemplated by this prospectus. Unless our board of directors determines otherwise, we will issue all shares of our capital stock in uncertificated form.
Common Stock
Holders of our common stock will be entitled to one vote for each share held of record on all matters on which stockholders are entitled to vote generally, including the election or removal of directors. The holders of our common stock do not have cumulative voting rights in the election of directors.
Upon our liquidation, dissolution or winding up and after payment in full of all amounts required to be paid to creditors and subject to the rights of the holders of one or more outstanding series of preferred stock having liquidation preferences, if any, or the right to participate with the common stock, the holders of our common stock will be entitled to receive pro rata our remaining assets available for distribution. Holders of our common stock do not have preemptive, subscription, redemption, sinking fund or conversion rights. The common stock will not be subject to further calls or assessment by us. All shares of our common stock that will be outstanding at the time of the completion of the offering will be fully paid and non-assessable. The rights, powers, preferences and privileges of holders of our common stock will be subject to those of the holders of any shares of our preferred stock or any series or class of stock we may authorize and issue in the future.
Preferred Stock
Our amended and restated certificate of incorporation will authorize our board of directors to establish one or more series of preferred stock (including convertible preferred stock). Unless required by law or by the Nasdaq rules, the authorized shares of preferred stock will be available for issuance without further action by investors in our common stock, and holders of our common stock will not be entitled to vote on any amendment to our amended and restated certificate of incorporation that relates solely to the terms of any outstanding shares of preferred stock, if the holders of such shares of preferred stock are entitled to vote thereon. Our board of directors is authorized to determine, with respect to any series of preferred stock, the powers (including voting powers), preferences and relative, participating, optional and other special rights, and the qualifications, limitations or restrictions thereof, including, without limitation:
•
the designation of the series;
•
the number of shares of the series, which our board of directors may, except where otherwise provided in the preferred stock designation, increase (but not above the total number of authorized shares of the class of stock) or decrease (but not below the number of shares then outstanding);
•
whether dividends, if any, will be cumulative or non-cumulative and the dividend rate of the series;
•
the dates at which dividends, if any, will be payable;
•
redemption rights and price or prices, if any, for shares of the series;
•
the terms and amounts of any sinking fund provided for the purchase or redemption of shares of the series;
•
the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of our company;
•
whether the shares of the series will be convertible into shares of any other class or series of the stock of our company, or any other security of our company or any other entity, and, if so, the specification of the other class or series or other security, the conversion price or prices or rate or rates, any rate adjustments, the date or dates as of which the shares will be convertible and all other terms and conditions upon which the conversion may be made;
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restrictions on the issuance of shares of the same series or of any other class or series of our capital stock; and
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the voting rights, if any, of the holders of the series.
We could issue a series of preferred stock that could, depending on the terms of the series, impede or discourage an acquisition attempt or other transaction that some, or a majority, of the holders of our common stock might believe to be in their best interests or in which the holders of our common stock might receive a premium for their common stock over the market price of the common stock. Additionally, the issuance of preferred stock may adversely affect the holders of our common stock, including, without limitation, by restricting dividends on the common stock, diluting the voting power of the common stock or subordinating the liquidation rights of the common stock. As a result of these or other factors, the issuance of preferred stock could have an adverse impact on the market price of our common stock.
Dividends
Holders of our common stock will be entitled to receive dividends when, as and if declared by our board of directors out of funds legally available therefor, subject to any statutory or contractual restrictions on the payment of dividends and to the rights of the holders or one or more outstanding series of our preferred stock.
The DGCL permits a corporation to declare and pay dividends out of “surplus” or, if there is no “surplus,” out of its net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. “Surplus” is defined as the excess of the net assets of the corporation over the amount determined to be the capital of the corporation by the board of directors. The capital of the corporation is typically calculated to be (and cannot be less than) the aggregate par value of all issued shares of capital stock. Net assets equals the fair value of the total assets minus total liabilities. The DGCL also provides that dividends may not be paid out of net profits if, after the payment of the dividend, remaining capital would be less than the capital represented by the outstanding stock of all classes having a preference upon the distribution of assets.
Declaration and payment of any dividend will be subject to the discretion of our board of directors. The time and amount of such dividends, if any, will be dependent upon our financial condition, operations, compliance with applicable law, cash requirements and availability, debt repayment obligations, capital expenditure needs and restrictions in our debt instruments, contractual restrictions, business prospects, industry trends, the provisions of Delaware law affecting the payment of distributions to stockholders and any other factors our board of directors may consider relevant.
We do not expect to declare or pay any dividends on our common stock in the foreseeable future. In addition, our ability to pay dividends on our common stock is limited by the covenants of our Credit Agreement and may be further restricted by the terms of any future debt or preferred securities. See “Dividend Policy” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity and Capital Resources — Credit Facilities.”
Annual Stockholder Meetings
Our amended and restated certificate of incorporation and our amended and restated bylaws will provide that annual stockholder meetings will be held at a date, time and place, if any, as exclusively selected by our board of directors or a duly authorized committee thereof. To the extent permitted under applicable law, we may conduct meetings by remote communications, including by webcast.
Effects of Our Certificate of Incorporation and Bylaws
and Certain Provisions of Delaware Law
Our amended and restated certificate of incorporation and our amended and restated bylaws will contain, and the DGCL does contain, provisions (which are summarized in the following paragraphs) that are intended to enhance the likelihood of continuity and stability in the composition of our board of directors. These provisions are intended to avoid costly takeover battles, reduce our vulnerability to a hostile change of control and enhance the ability of our board of directors to maximize stockholder value in connection with any unsolicited offer to acquire us. However, these provisions may have the effect of delaying, deterring or preventing a merger or acquisition of our company by means of a tender offer, a proxy contest or other takeover attempt that a stockholder might consider in its best interest, including attempts that might result in a premium over the prevailing market price for the shares of common stock held by stockholders.
Authorized but Unissued Capital Stock
Delaware law does not require stockholder approval for any issuance of authorized shares. However, the listing requirements of the Nasdaq, which would apply if and so long as our common stock remains listed on the Nasdaq, require stockholder approval of certain issuances equal to or exceeding 20% of the then outstanding voting power or then outstanding number of shares of common stock. Additional shares that may be used in the future may be issued for a variety of corporate purposes, including future public offerings, to raise additional capital or to facilitate acquisitions.
Our board of directors may generally issue one or more series of preferred shares on terms calculated to discourage, delay or prevent a change of control of our company or the removal of our management. Moreover, our authorized but unissued shares of preferred stock will be available for future issuances in one or more series without stockholder approval and could be utilized for a variety of corporate purposes, including future offerings to raise additional capital, to facilitate acquisitions and employee benefit plans.
One of the effects of the existence of authorized and unissued and unreserved common stock or preferred stock may be to enable our board of directors to issue shares to persons friendly to current management, which issuance could render more difficult or discourage an attempt to obtain control of our Company by means of a merger, tender offer, proxy contest or otherwise, and thereby protect the continuity of our management and possibly deprive our stockholders of opportunities to sell their shares of common stock at prices higher than prevailing market prices.
Classified Board of Directors
Our amended and restated certificate of incorporation will provide that, subject to the right of holders of any series of preferred stock, our board of directors will be divided into three classes of directors, with the classes to be as nearly equal in number as possible, and with the directors serving staggered three-year terms, with only one class of directors being elected at each annual meeting of stockholders. As a result, approximately one-third of our board of directors will be elected each year. The classification of directors will have the effect of making it more difficult for stockholders to change the composition of our board of directors. Our amended and restated certificate of incorporation and amended and restated bylaws will provide that, subject to any rights of holders of preferred stock to elect additional directors under specified circumstances, the number of directors will be fixed from time to time exclusively pursuant to a resolution adopted by the board of directors; however, if at any time Hellman & Friedman owns at least 40% in voting power of the then-outstanding shares of stock of our Company entitled to vote generally in the election of directors, the stockholders may also fix the number of directors.
Business Combinations
We are subject to Section 203 of the Delaware General Corporation Law, which prohibits persons deemed to be “interested stockholders” from engaging in a “business combination” with a publicly held Delaware corporation for three years following the date these persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. We will opt out of Section 203 of the DGCL; however, our amended and restated certificate of incorporation will contain similar provisions providing that we may not engage in certain “business combinations” with any “interested stockholder” for a three-year period following the time that the stockholder became an interested stockholder, unless:
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prior to such time, our board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding certain shares;
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at or subsequent to that time, the business combination is approved by our board of directors and by the affirmative vote of holders of at least 66 2/3% of our outstanding voting stock that is not owned by the interested stockholder; or
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the stockholder became an interested stockholder inadvertently and (i) as soon as practicable divested itself of sufficient ownership to cease to be an interested stockholder and (ii) had not been an interested stockholder but for the inadvertent acquisition of ownership within three years of the business combination.
Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with that person’s affiliates and associates, owns, or within the previous three years owned, 15% or more of our outstanding voting stock. For purposes of this section only, “voting stock” has the meaning given to it in Section 203 of the DGCL.
Under certain circumstances, these provisions will make it more difficult for a person who would be an “interested stockholder” to effect various business combinations with our company for a three-year period. These provisions may encourage companies interested in acquiring our Company to negotiate in advance with our board of directors because the stockholder approval requirement would be avoided if our board of directors approves either the business combination or the transaction which results in the stockholder becoming an interested stockholder. These provisions also may have the effect of preventing changes in our board of directors and may make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
Our amended and restated certificate of incorporation will provide that Hellman & Friedman, and any of its direct or indirect transferees and any group as to which such persons or entities are a party, does not constitute an “interested stockholder” for purposes of these provisions.
Removal of Directors; Vacancies
Under the DGCL, unless otherwise provided in our amended and restated certificate of incorporation, directors serving on a classified board may be removed by the stockholders only for cause. Our amended and restated certificate of incorporation will provide that, other than directors elected by holders of our preferred stock, if any, directors may be removed with or without cause upon the affirmative vote of a majority in voting power of all outstanding shares of stock entitled to vote thereon, voting together as a single class; provided, however, at any time when Hellman & Friedman beneficially owns less than 40% in voting power of the then-outstanding shares of stock of our company entitled to vote generally in the election of directors, directors may only be removed for cause, and only by the affirmative vote of holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of our company entitled to vote thereon, voting together as a single class. In addition, our amended and restated certificate of incorporation will also provide that, subject to the rights granted to one or more series of preferred stock then outstanding or the rights granted pursuant to the stockholders agreement, any newly created directorship on the board of
directors that results from an increase in the number of directors and any vacancies on our board of directors will be filled only by the affirmative vote of a majority of the remaining directors, even if less than a quorum, or by a sole remaining director or by the stockholders; provided, however, at any time when Hellman & Friedman beneficially owns less than 40% in voting power of the then-outstanding shares of stock of our company entitled to vote generally in the election of directors, any newly created directorship on the board of directors that results from an increase in the number of directors and any vacancy occurring in the board of directors may only be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director (and not by the stockholders). Our amended and restated certificate of incorporation will provide that the board of directors may increase the number of directors by the affirmative vote of a majority of the directors or, at any time when Hellman & Friedman beneficially owns at least 40% of the voting power of the then-outstanding shares of stock of our Company entitled to vote generally in the election of directors, of the stockholders.
No Cumulative Voting
Under Delaware law, the right to vote cumulatively does not exist unless the certificate of incorporation specifically authorizes cumulative voting. Our amended and restated certificate of incorporation will not authorize cumulative voting. Therefore, stockholders holding a majority in voting power of the then-outstanding shares of our stock entitled to vote generally in the election of directors will be able to elect all of our directors.
Special Stockholder Meetings
Our amended and restated certificate of incorporation will provide that special meetings of our stockholders may be called at any time only by or at the direction of the board of directors or the chairman of the board of directors; provided, however, that at any time when Hellman & Friedman beneficially owns, in the aggregate, at least 40% in voting power of the then-outstanding shares of stock of our company entitled to vote generally in the election of directors, special meetings of our stockholders shall also be called by the board of directors or the chairman of the board of directors at the request of Hellman & Friedman. Our amended and restated bylaws will prohibit the conduct of any business at a special meeting other than as specified in the notice for such meeting. These provisions may have the effect of deferring, delaying or discouraging hostile takeovers or changes in control or management of our Company.
Requirements for Advance Notification of Director Nominations and Stockholder Proposals
Our amended and restated bylaws will establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the board of directors or a committee of the board of directors. In order for any matter to be properly brought before a meeting of our stockholders, a stockholder will have to comply with advance notice requirements and provide us with certain information. Generally, to be timely, a stockholder’s notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the immediately preceding annual meeting of stockholders. Our amended and restated bylaws will also specify requirements as to the form and content of a stockholder’s notice. Our amended and restated bylaws will allow the chairman of the meeting at a meeting of the stockholders to adopt rules and regulations for the conduct of meetings, which may have the effect of precluding the conduct of certain business at a meeting if the rules and regulations are not followed. These provisions may also deter, delay or discourage a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to influence or obtain control of our company.
Stockholder Action by Written Consent
Pursuant to Section 228 of the DGCL, any action required to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote if a consent or consents, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of our stock entitled to vote thereon were present and voted, unless our amended and restated certificate of incorporation provides otherwise. Our amended and restated certificate of
incorporation will preclude stockholder action by written consent at any time when Hellman & Friedman beneficially owns less than 40% in voting power of the then-outstanding shares of stock of our Company entitled to vote generally in the election of directors, other than certain rights that holders of our preferred stock may have to act by consent.
Supermajority Provisions
Our amended and restated certificate of incorporation and our amended and restated bylaws will provide that the board of directors is expressly authorized to make, alter, amend, change, add to, rescind or repeal, in whole or in part, our amended and restated bylaws without a stockholder vote in any matter not inconsistent with Delaware law or our amended and restated certificate of incorporation. In addition, for as long as Hellman & Friedman beneficially owns at least 40% in voting power of the then-outstanding shares of stock of our company entitled to vote generally in the election of directors, any amendment, alteration, rescission or repeal of our amended and restated bylaws by our stockholders will require the affirmative vote of a majority in voting power of the outstanding shares of our stock present in person or represented by proxy at the meeting of stockholders and entitled to vote on such amendment, alteration, change, addition, rescission, change, addition or repeal. At any time when Hellman & Friedman beneficially owns less than 40% in voting power of the then-outstanding shares of the stock of our company entitled to vote generally in the election of directors, any amendment, alteration, rescission, change, addition or repeal of our amended and restated bylaws by our stockholders will require the affirmative vote of the holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of our Company entitled to vote thereon, voting together as a single class.
The DGCL provides generally that the affirmative vote of a majority of the outstanding shares entitled to vote thereon, voting together as a single class, is required to amend a corporation’s certificate of incorporation, unless the certificate of incorporation requires a greater percentage.
Our amended and restated certificate of incorporation will provide that at any time when Hellman & Friedman beneficially owns less than 40% in voting power of the then-outstanding shares of stock of our Company entitled to vote generally in the election of directors, the following provisions in our amended and restated certificate of incorporation may be amended, altered, repealed or rescinded only by the affirmative vote of the holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of our company entitled to vote thereon, voting together as a single class:
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the provision requiring a 66 2/3% supermajority vote for stockholders to amend our bylaws;
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the provisions providing for a classified board of directors (the election and term of our directors);
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the provisions regarding resignation and removal of directors;
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the provisions regarding competition and corporate opportunities;
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the provisions regarding Section 203 of the DGCL and entering into business combinations with interested stockholders;
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the provisions regarding stockholder action by written consent;
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the provisions regarding calling annual or special meetings of stockholders;
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the provisions regarding filling vacancies on our board of directors and newly created directorships;
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the provisions eliminating monetary damages for breaches of fiduciary duty by a director; and
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the amendment provision requiring that the above provisions be amended only with a 66 2/3% supermajority vote.
The combination of the classification of our board of directors, the lack of cumulative voting and the supermajority voting requirements will make it more difficult for our existing stockholders to replace our board of directors as well as for another party to obtain control of us by replacing our board of directors. Because our board of directors has the power to retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect a change in management.
These provisions may have the effect of deterring hostile takeovers or delaying or preventing changes in control of our management or our company, such as a merger, reorganization or tender offer. These provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and its policies and to discourage certain types of transactions that may involve an actual or threatened acquisition of our company. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. These provisions are also intended to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for our shares and, as a consequence, they also may inhibit fluctuations in the market price of our shares that could result from actual or rumored takeover attempts. Such provisions may also have the effect of preventing changes in management of our company.
Dissenters’ Rights of Appraisal and Payment
Under the DGCL, with certain exceptions, our stockholders will have appraisal rights in connection with a merger or consolidation of us. Pursuant to the DGCL, stockholders who properly request and perfect appraisal rights in connection with such merger or consolidation will have the right to receive payment of the fair value of their shares as determined by the Delaware Court of Chancery.
Stockholders’ Derivative Actions
Under the DGCL, any of our stockholders may bring an action in our name to procure a judgment in our favor, also known as a derivative action, provided that the stockholder bringing the action is a holder of our shares at the time of the incident to which the action relates or such stockholder’s stock thereafter devolved by operation of law.
Exclusive Forum
Our amended and restated certificate of incorporation will provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for any (i) derivative action or proceeding brought on behalf of our company, (ii) action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee or stockholder of our company to our company or our company’s stockholders, (iii) action asserting a claim against our company or any current or former director, officer, employee or stockholder of our company arising pursuant to any provision of the DGCL or our amended and restated certificate of incorporation or our amended and restated bylaws (as either may be amended from time to time) or (iv) action asserting a claim governed by the internal affairs doctrine of the State of Delaware. These provisions shall not apply to suits brought to enforce a duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction and our stockholders cannot waive compliance with federal securities laws and the rules and regulations thereunder. Unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act, subject to and contingent upon a final adjudication in the State of Delaware of the enforceability of such exclusive forum provision. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of our company shall be deemed to have notice of and consented to the forum provisions in our amended and restated certificate of incorporation. Although our amended and restated certificate of incorporation will contain the exclusive forum provision described above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable.
Conflicts of Interest
Delaware law permits corporations to adopt provisions renouncing any interest or expectancy in certain opportunities that are presented to the corporation or its officers, directors or stockholders. Our amended and restated certificate of incorporation will, to the maximum extent permitted from time to time by Delaware law, renounce any interest or expectancy that we have in, or right to be offered an opportunity to participate in, any business opportunities that are from time to time presented to our officers, directors or stockholders or their respective affiliates, other than those officers, directors, stockholders or affiliates who are our or our subsidiaries’ employees. Our amended and restated certificate of incorporation will provide that, to the fullest extent permitted by law, none of Hellman & Friedman or any director who is not
employed by us (including any non-employee director who serves as one of our officers in both his director and officer capacities) or his or her affiliates will have any duty to refrain from (i) engaging in a corporate opportunity in the same or similar business activities or lines of business in which we or our affiliates now engage or propose to engage or (ii) otherwise competing with us or our affiliates. In addition, to the fullest extent permitted by law, in the event that Hellman & Friedman or any non-employee director acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself or himself, or herself, or its or his, or her, affiliates or for us or our affiliates, such person will have no duty to communicate or offer such transaction or business opportunity to us or any of our affiliates and they may take any such opportunity for themselves or offer it to another person or entity. Our amended and restated certificate of incorporation will not renounce our interest in any business opportunity that is expressly offered to a non-employee director solely in his or her capacity as a director or officer of our company. To the fullest extent permitted by law, no business opportunity will be deemed to be a potential corporate opportunity for us unless we would be permitted to undertake the opportunity under our amended and restated certificate of incorporation, we have sufficient financial resources to undertake the opportunity and the opportunity would be in line with our business.
Limitations on Liability and Indemnification of Officers and Directors
The DGCL authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties, subject to certain exceptions. Our amended and restated certificate of incorporation will include a provision that eliminates the personal liability of directors for monetary damages for any breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL. The effect of these provisions is to eliminate the rights of us and our stockholders, through stockholders’ derivative suits on our behalf, to recover monetary damages from a director for breach of certain fiduciary duties as a director, including breaches resulting from grossly negligent behavior. However, exculpation does not apply to any director if the director has acted in bad faith, knowingly or intentionally violated a law during the performance of his or her duties, fiduciary or otherwise, owed to us, authorized illegal dividends, repurchases or redemptions or derived an improper benefit from his or her actions as a director.
Our amended and restated bylaws will provide that we must indemnify and advance expenses to our directors and officers to the fullest extent authorized by the DGCL. We also will be expressly authorized to carry directors’ and officers’ liability insurance providing indemnification for our directors, officers and certain employees for some liabilities. We believe that these indemnification and advancement provisions and insurance will be useful to attract and retain qualified directors and executive officers.
The limitation of liability, indemnification and advancement provisions in our amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. In addition, any investment in our common stock may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
We have entered, or will enter, into an indemnification agreement with each of our directors and officers. These agreements will require us to indemnify these individuals to the fullest extent permitted under the DGCL against liabilities that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.
There is currently no pending material litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
Listing
We have applied to list our Class A common stock on the Nasdaq under the symbol “SNPO.”
SHARES ELIGIBLE FOR FUTURE SALE
General
Prior to this offering, there has not been a public market for our common stock, and we cannot predict what effect, if any, market sales of shares of common stock or the availability of shares of common stock for sale will have on the market price of our common stock prevailing from time to time. Nevertheless, sales of substantial amounts of common stock, including shares issued upon the exercise of outstanding options, in the public market, or the perception that such sales could occur, could materially and adversely affect the market price of our common stock and could impair our future ability to raise capital through the sale of our equity or equity-related securities at a time and price that we deem appropriate. See “Risk Factors — Risks Related to this Offering and Ownership of Our Common Stock — Future sales, or the perception of future sales, by us or our existing stockholders in the public market following this offering could cause the market price for our common stock to decline.”
Upon the consummation of this offering, we will have shares of common stock outstanding. All shares sold in this offering will be freely tradable without registration under the Securities Act and without restriction, except for shares held by our “affiliates” (as defined under Rule 144). The shares of common stock held by certain stockholders including Hellman & Friedman and certain of our directors, officers and employees after this offering will be “restricted” securities under the meaning of Rule 144 and may not be sold in the absence of registration under the Securities Act, unless an exemption from registration is available, including the exemptions pursuant to Rule 144 under the Securities Act.
Pursuant to Rule 144, the restricted shares held by our affiliates will be available for sale in the public market at various times after the date of this prospectus following the expiration of the applicable lock-up period.
In addition, a total of shares of our common stock has been reserved for issuance under the 2021 Incentive Plan and a total of shares of our common stock has been reserved for issuance under our 2021 Employee Stock Purchase Plan (each subject to adjustments for stock splits, stock dividends and similar events), which will equal approximately % of the shares of our common stock outstanding immediately following this offering. We intend to file one or more registration statements on Form S-8 under the Securities Act to register common stock issued or reserved for issuance under the 2021 Incentive Plan and our 2021 Employee Stock Purchase Plan. Any such Form S-8 registration statement will automatically become effective upon filing. Accordingly, shares registered under such registration statement will be available for sale in the open market, unless such shares are subject to vesting restrictions or the lock-up restrictions described below.
Rule 144
In general, under Rule 144, as currently in effect, a person (or persons whose shares are deemed aggregated) who is not deemed to be or have been one of our affiliates for purposes of the Securities Act at any time during 90 days preceding a sale and who has beneficially owned the shares proposed to be sold for at least six months, including the holding period of any prior owner other than an affiliate, is entitled to sell such shares without registration, subject to compliance with the public information requirements of Rule 144. If such a person has beneficially owned the shares proposed to be sold for at least one year, including the holding period of a prior owner other than an affiliate, then such person is entitled to sell such shares without complying with any of the requirements of Rule 144.
Under Rule 144, our affiliates or persons selling shares on behalf of our affiliates, who have met the six-month holding period for beneficial ownership of “restricted shares” of our common stock, are entitled to sell within any three-month period, a number of shares that does not exceed the greater of:
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1% of the number of shares of our common stock then outstanding, which will equal approximately shares immediately after this offering; or
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the average reported weekly trading volume of our common stock on Nasdaq during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale.
Sales under Rule 144 by our affiliates or persons selling shares on behalf of our affiliates are also subject to certain manner of sale provisions and notice requirements and to the availability of current public information about us. The sale of these shares, or the perception that sales will be made, could adversely affect the price of our common stock after this offering because a great supply of shares would be, or would be perceived to be, available for sale in the public market.
Rule 701
In general, under Rule 701 of the Securities Act as currently in effect, any of our employees, consultants or advisors who purchase shares from us in connection with a compensatory stock or option plan or other written agreement in a transaction that was completed in reliance on Rule 701, and complied with the requirements of Rule 701, will be eligible to resell such shares 90 days after the effective date of this offering in reliance on Rule 144, but without compliance with certain restrictions, including the holding period, contained in Rule 144.
Registration Rights
Certain of our stockholders, including Hellman & Friedman and certain of its affiliates, will have certain registration rights with respect to our common stock pursuant to the stockholders agreement. See “Certain Relationships and Related Party Transactions — Stockholders Agreement.” Registration of these shares under the Securities Act would result in these shares becoming freely tradable immediately upon effectiveness of such registration.
Lock-Up Agreements
In connection with this offering, we, our officers, directors and all significant equity holders, as well as the selling stockholders, have agreed with the underwriters, subject to certain exceptions, not to sell, dispose of or hedge any shares of our common stock or securities convertible into or exchangeable for shares of common stock during the period ending 180 days after the date of this prospectus (the “restricted period”), except with the prior written consent of Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC.
Immediately following the consummation of this offering, equity holders subject to lock-up agreements will hold shares of our common stock, representing approximately % of our then outstanding shares of common stock, or approximately % if the underwriters exercise in full their option to purchase additional shares.
We have agreed not to issue, sell or otherwise dispose of any shares of our common stock during the restricted period. We may, however, grant options to purchase shares of common stock, issue shares of common stock upon the exercise of outstanding options, issue shares of common stock in connection with certain acquisitions or business combinations or an employee stock purchase plan and in certain other circumstances.
After the offering, certain of our employees, including our executive officers, and/or directors may enter into written trading plans that are intended to comply with Rule 10b5-1 under the Exchange Act. Sales under these trading plans would not be permitted until the expiration of the lock-up agreements relating to the offering described above.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES TO NON-U.S. HOLDERS
The following is a summary of certain United States federal income tax consequences to Non-U.S. holders (as defined below) of the ownership and disposition of our common stock. This summary does not address the consequences of our tax receivable agreement or consequences relevant to pre-IPO owners. Except where noted, this summary deals only with common stock that is held as a capital asset by a non-U.S. holder (as defined below).
A “non-U.S. holder” means a beneficial owner of our common stock (other than an entity or arrangement treated as a partnership for United States federal income tax purposes) that is not, for United States federal income tax purposes, any of the following:
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an individual who is a citizen or resident of the United States;
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a corporation (or any other entity treated as a corporation for United States federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
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an estate the income of which is subject to United States federal income taxation regardless of its source; or
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a trust if it (1) is subject to the primary supervision of a court within the United States and one or more United States persons have the authority to control all substantial decisions of the trust or (2) has a valid election in effect under applicable United States Treasury regulations to be treated as a United States person.
This summary is based upon provisions of the Code, and United States Treasury regulations, rulings judicial decisions, and administrative pronouncements, in each case as of the date hereof. Those authorities may be changed, perhaps retroactively, so as to result in United States federal income tax consequences different from those summarized below. This summary does not address all of the United States federal income tax considerations that may be relevant to you in light of their particular circumstances, nor does it address the Medicare tax on net investment income, the alternative minimum tax, United States federal estate and gift taxes or the effects of any state, local or non-United States tax laws. In addition, it does not represent a detailed description of the United States federal income tax consequences applicable to you if you are subject to special treatment under the United States federal income tax laws (including if you are a United States expatriate, foreign pension fund, “controlled foreign corporation,” “passive foreign investment company” or a partnership or other pass-through entity for United States federal income tax purposes). We cannot assure you that a change in law will not alter significantly the tax considerations that we describe in this summary.
If a partnership (or other entity or arrangement treated as a partnership for United States federal income tax purposes) holds our common stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding our common stock, you should consult your tax advisors.
If you are considering the purchase of our common stock, you should consult your own tax advisors concerning the particular United States federal income tax consequences to you of the purchase, ownership and disposition of our common stock, as well as the consequences to you arising under other United States federal tax laws and the laws of any other taxing jurisdiction.
Dividends
In the event that we make a distribution of cash or other property (other than certain pro rata distributions of our stock) in respect of our common stock, the distribution generally will be treated as a dividend for United States federal income tax purposes to the extent it is paid from our current or accumulated earnings and profits, as determined under United States federal income tax principles. Any portion of a distribution that exceeds our current and accumulated earnings and profits generally will be treated first as a tax-free return of capital, causing a reduction in the adjusted tax basis of a non-U.S. holder’s common stock, and to the extent the amount of the distribution exceeds a non-U.S. holder’s adjusted tax basis in our
common stock, the excess will be treated as gain from the disposition of our common stock (the tax treatment of which is discussed below under “— Gain on Disposition of Common Stock”).
Dividends paid to a non-U.S. holder generally will be subject to withholding of United States federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty. However, dividends that are effectively connected with the conduct of a trade or business by the non-U.S. holder within the United States (and, if required by an applicable income tax treaty, are attributable to a United States permanent establishment) are not subject to the withholding tax, provided certain certification and disclosure requirements are satisfied. Instead, such dividends are subject to United States federal income tax on a net income basis generally in the same manner as if the non-U.S. holder were a United States person as defined under the Code. Any such effectively connected dividends received by a foreign corporation may be subject to an additional “branch profits tax” at a 30% rate or such lower rate as may be specified by an applicable income tax treaty.
A non-U.S. holder who wishes to claim the benefit of an applicable treaty rate and avoid backup withholding, as discussed below, for dividends will be required (a) to provide the applicable withholding agent with a properly executed Internal Revenue Service (“IRS”) Form W-8BEN or Form W-8BEN-E (or other applicable form) certifying under penalty of perjury that such holder is not a United States person as defined under the Code and is eligible for treaty benefits or (b) if our common stock is held through certain foreign intermediaries, to satisfy the relevant certification requirements of applicable United States Treasury regulations. Special certification and other requirements apply to certain non-U.S. holders that are pass-through entities rather than corporations or individuals.
A non-U.S. holder eligible for a reduced rate of United States federal withholding tax pursuant to an income tax treaty may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS.
Gain on Disposition of Common Stock
Subject to the discussion of backup withholding and FATCA below, any gain realized by a non-U.S. holder on the sale or other disposition of our common stock generally will not be subject to United States federal income or withholding tax unless:
•
the gain is effectively connected with a trade or business of the non-U.S. holder in the United States (and, if required by an applicable income tax treaty, is attributable to a United States permanent establishment of the non-U.S. holder);
•
the non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of that disposition, and certain other conditions are met; or
•
we are or have been a “United States real property holding corporation” for United States federal income tax purposes at any time within the five-year period preceding the disposition or the non-U.S. holder’s holding period, whichever period is shorter, the non-U.S. holder is not eligible for a treaty exemption, and either (i) our common stock is not regularly traded on an established securities market during the calendar year in which the sale or disposition occurs or (ii) the non-U.S. holder owned or is deemed to have owned at any time within the five-year period preceding the disposition or the non-U.S. holder’s holding period, whichever period is shorter, more than 5% of our common stock.
A non-U.S. holder described in the first bullet point immediately above will be subject to tax on the gain derived from the sale or other disposition in the same manner as if the non-U.S. holder were a United States person as defined under the Code. In addition, if any non-U.S. holder described in the first bullet point immediately above is a foreign corporation, the gain realized by such non-U.S. holder may be subject to an additional “branch profits tax” at a 30% rate or such lower rate as may be specified by an applicable income tax treaty. An individual non-U.S. holder described in the second bullet point immediately above will be subject to a 30% (or such lower rate as may be specified by an applicable income tax treaty) tax on the gain derived from the sale or other disposition, which gain may be offset by United States source capital losses even though the individual is not considered a resident of the United States.
Generally, a corporation is a “United States real property holding corporation” if the fair market value of its United States real property interests equals or exceeds 50% of the sum of the fair market value of its worldwide real property interests and its other assets used or held for use in a trade or business (all as determined for United States federal income tax purposes). We believe we are not and do not anticipate becoming a “United States real property holding corporation” for United States federal income tax purposes.
Information Reporting and Backup Withholding
Distributions paid to a non-U.S. holder and the amount of any tax withheld with respect to such distributions generally will be reported to the IRS. Copies of the information returns reporting such distributions and any withholding may also be made available to the tax authorities in the country in which the non-U.S. holder resides under the provisions of an applicable income tax treaty.
A non-U.S. holder will not be subject to backup withholding on distributions received if such holder certifies under penalty of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that such holder is a United States person as defined under the Code), or such holder otherwise establishes an exemption.
Information reporting and, depending on the circumstances, backup withholding will apply to the proceeds of a sale or other disposition of our common stock within the United States or conducted through certain United States-related financial intermediaries, unless the beneficial owner certifies under penalty of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that the beneficial owner is a United States person as defined under the Code), or such owner otherwise establishes an exemption.
Backup withholding is not an additional tax and any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a non-U.S. holder’s United States federal income tax liability provided the required information is timely furnished to the IRS.
Additional Withholding Requirements
Under Sections 1471 through 1474 of the Code (such Sections commonly referred to as “FATCA”), a 30% United States federal withholding tax may apply to any dividends paid on our common stock to (i) a “foreign financial institution” (as specifically defined in the Code and whether such foreign financial institution is the beneficial owner or an intermediary) which does not provide sufficient documentation, typically on IRS Form W-8BEN-E, evidencing either (x) an exemption from FATCA, or (y) its compliance (or deemed compliance) with FATCA (which may alternatively be in the form of compliance with an intergovernmental agreement with the United States) in a manner which avoids withholding, or (ii) a “non-financial foreign entity” (as specifically defined in the Code and whether such non-financial foreign entity is the beneficial owner or an intermediary) which does not provide sufficient documentation, typically on IRS Form W-8BEN-E, evidencing either (x) an exemption from FATCA, or (y) adequate information regarding certain substantial United States beneficial owners of such entity (if any). If a dividend payment is both subject to withholding under FATCA and subject to the withholding tax discussed above under “— Dividends,” an applicable withholding agent may credit the withholding under FATCA against, and therefore reduce, such other withholding tax. FATCA withholding may also apply to payments of gross proceeds of dispositions of our common stock, although under proposed United States Treasury regulations (the preamble to which specifies that taxpayers are permitted to rely on them pending finalization), no withholding will apply on payments of gross proceeds. You should consult your own tax advisors regarding these requirements and whether they may be relevant to your ownership and disposition of our common stock.
UNDERWRITING
Under the terms and subject to the conditions in an underwriting agreement dated the date of this prospectus, the underwriters named below, for whom Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, Jefferies LLC and UBS Securities LLC are acting as representatives, have severally agreed to purchase, and we have agreed to sell to them, severally, the number of shares indicated below:
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Name
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Number of Shares
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Morgan Stanley & Co. LLC
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J.P. Morgan Securities LLC
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Jefferies LLC
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UBS Securities LLC
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BMO Capital Markets Corp.
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Raymond James & Associates, Inc.
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Truist Securities, Inc.
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William Blair & Company, L.L.C.
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Drexel Hamilton, LLC
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Penserra Securities LLC
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R. Seelaus & Co., LLC
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Siebert Williams Shank & Co., LLC
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Total:
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The underwriters and the representatives are collectively referred to as the “underwriters” and the “representatives,” respectively. The underwriters are offering the shares of common stock subject to their acceptance of the shares from us and subject to prior sale. The underwriting agreement provides that the obligations of the several underwriters to pay for and accept delivery of the shares of common stock offered by this prospectus are subject to the approval of certain legal matters by their counsel and to certain other conditions. The underwriters are obligated to take and pay for all of the shares of common stock offered by this prospectus if any such shares are taken. However, the underwriters are not required to take or pay for the shares covered by the underwriters’ over-allotment option described below.
The underwriters initially propose to offer part of the shares of common stock directly to the public at the offering price listed on the cover page of this prospectus and part to certain dealers at a price that represents a concession not in excess of $ per share under the public offering price. After the initial offering of the shares of common stock, the offering price and other selling terms may from time to time be varied by the representatives.
We and the selling stockholders have granted to the underwriters an option, exercisable for 30 days from the date of this prospectus, to purchase up to additional shares of common stock at the public offering price listed on the cover page of this prospectus, less underwriting discounts and commissions. The underwriters may exercise this option solely for the purpose of covering over-allotments, if any, made in connection with the offering of the shares of common stock offered by this prospectus. To the extent the option is exercised, each underwriter will become obligated, subject to certain conditions, to purchase about the same percentage of the additional shares of common stock as the number listed next to the underwriter’s name in the preceding table bears to the total number of shares of common stock listed next to the names of all underwriters in the preceding table.The selling stockholders will only sell shares of common stock in this offering if the underwriters exercise such option.
The following table shows the per share and total public offering price, underwriting discounts and commissions, and proceeds before expenses to us. These amounts are shown assuming both no exercise and full exercise of the underwriters’ option to purchase up to an additional shares of common stock.
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Total
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Per
Share
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No
Exercise
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Full
Exercise
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Public offering price
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$
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$
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$
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Underwriting discounts and commissions to be paid by us
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$
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$
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$
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Proceeds, before expenses, to us
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|
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$
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$
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$
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Proceeds, before expenses, to the selling stockholders
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$
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$
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$
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The estimated offering expenses payable by us, exclusive of the underwriting discounts and commissions, are approximately $ . We have also agreed to reimburse the underwriters for expenses in an amount up to $ .
The underwriters have informed us that they do not intend sales to discretionary accounts to exceed 5% of the total number of shares of common stock offered by them.
Our common stock has been approved for quotation on the NASDAQ Global Select Market under the trading symbol “SNPO.”
We and our directors, our executive officers and substantially all of the holders of our outstanding shares of common stock or securities convertible into or exchangeable into shares of our common stock outstanding upon the completion of this offering (the “lock-up parties”), have agreed, subject to certain exceptions, with the underwriters not to, during the period ending 180 days following the date of this prospectus (the “lock-up period”): (a) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of our common stock beneficially owned (as such term is used in Rule 13d-3 of the Exchange Act), by such lock-up party or any other securities so owned convertible into or exercisable or exchangeable for our common stock or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of our common stock, whether any such transaction described in clause (a) or (b) is to be settled by delivery of our common stock or such other securities, in cash or otherwise.
The restrictions described in (a) and (b) above are subject to certain additional exceptions, including the following transfers of the lock-up party’s common stock or securities convertible into or exercisable or exchangeable for common stock:
1.
transactions relating to shares of common stock or other securities (i) acquired in open market transactions after the completion of this offering or (ii) unless the undersigned is our director or officer, any shares of common stock the undersigned may purchase in the offering, whether or not directed by us, provided in each case that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of common stock or other securities acquired during the lock-up period;
2.
transfers of shares of common stock or any security convertible into or exercisable or exchangeable for common stock (i) as a bona fide gift or charitable contribution, (ii) to an immediate family member of the undersigned or a trust for the direct or indirect benefit of the undersigned or one or more immediate family member of the undersigned (for purposes hereof, “immediate family member” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin), (iii) if the lock-up party is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust, (iv) if the lock-up party is a corporation, partnership, limited liability company, trust or other business entity, to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act) of such lock-up party, or to any investment fund or other entity controlled or managed by such lock-up party or affiliates of such lock-up party, or as part of a distribution, transfer or disposition without consideration by such lock-up party to its stockholders, current or former partners (general or limited), members, beneficiaries or other equity holders, or to the estates of any such stockholders, partners, members, beneficiaries or other equity holders, (v) by will, other testamentary document or intestate succession to the legal representative, heir,
beneficiary or a member of the immediate family of such lock-up party or (vi) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (2)(i) through (2)(v); provided that in the case of any transfer or distribution pursuant to this clause (2), (x) each transferee shall sign and deliver a substantially similar lock-up agreement, (ii) no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of common stock shall be voluntarily made during the lock-up period, and if such filing is required, such filing shall disclose that such transfer is not made for value and (iii) such transfer shall not involve a disposition for value;
3.
the transfer of shares in connection with sales of common stock made pursuant to a trading plan that complies with Rule 10b5-1 under the Exchange Act (a “Rule 10b5-1 Trading Plan”) that has been entered into by such lock-up party prior to the date of the applicable lock-up agreement; provided that such Rule 10b5-1 Trading Plan was established by such lock-up party prior to the execution of the applicable lock-up agreement, the existence and details of such Rule 10b5-1 Trading Plan were communicated to the Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC prior to the execution of the relevant lock-up agreement and such Rule 10b5-1 Trading Plan will not be amended or otherwise modified during the lock-up period; provided, further, that it shall be a condition to such transfer that any required filing under Section 16(a) of the Exchange Act, or other required public filing, report or announcement reporting a reduction in beneficial ownership of shares of common stock shall indicate in the footnotes thereto the nature and conditions of such transfer;
4.
transfers of shares of common stock or any securities convertible into or exercisable or exchangeable for common stock that occur by operation of law (including pursuant to a qualified domestic order, divorce decree, separation agreement or in connection with a divorce settlement or court order or order by a regulatory authority), provided that (i) each transferee shall sign and deliver a substantially similar lock-up agreement and (ii) no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of common stock shall be voluntarily made, and if any such filing is required, such filing shall clearly indicate in the footnotes thereto that such transfer is pursuant to the circumstances described in this clause (4);
5.
transfers of shares of common stock or any securities convertible into or exercisable or exchangeable for common stock to us pursuant to agreements under which we have the option to repurchase such shares or securities upon termination of service of such lock-up party (including upon death or disability of the undersigned) or a right of first refusal with respect to transfers of such shares, provided that any filing required to be made under Section 16(a) of the Exchange Act shall clearly indicate in the footnotes thereto that such transfer is pursuant to the circumstances described in this clause (5);
6.
the exercise of any stock option by or the vesting and settlement of any restricted stock unit of such lock-up party outstanding as of the date hereof or that was granted under a stock incentive plan or stock purchase plan described herein, provided that the shares received upon exercise or vesting or settlement shall continue to be subject to the applicable letter agreement and provided, further, no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of common stock shall be voluntarily made, and if any such filing is required, such filing shall clearly indicate in the footnotes thereto that the filing relates to the exercise of a stock option or settlement of a restricted stock unit, that no shares were sold by the reporting person and that the shares received upon exercise of the stock option or settlement of the restricted stock unit are subject to a lock-up agreement with the underwriters;
7.
transfers of shares of common stock to us upon the exercise of stock options outstanding as of the applicable lock-up agreement or that were granted pursuant to a stock incentive plan or stock purchase plan described herein, on a “cashless” or “net exercise” basis, provided that the shares received upon exercise shall continue to be subject to the applicable lock-up agreement and provided, further, that no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of common stock shall be voluntarily made, and if any such filing is required, such filing shall clearly indicate in the footnotes thereto that the filing relates to the
“cashless” or “net” exercise of a stock option, that no shares were sold by the reporting person and that the shares received upon exercise of the stock option are subject to a lock-up agreement with the underwriters;
8.
transfers of shares of common stock to us, or the withholding of shares of common stock by us, in connection with the exercise of stock options or a vesting event or subsequent settlement (as applicable) of restricted stock awards, restricted stock units, shares issued pursuant to early exercised stock options, or other of our securities, in each case which are outstanding as of the date of the applicable lock-up agreement or were granted pursuant to a stock incentive plan or stock purchase plan described in herein, to cover tax withholding obligations or the payment of taxes, including estimated taxes, due in connection with the vesting event, provided that no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of common stock shall be voluntarily made, and if any such filing is required, such filing shall clearly indicate in the footnotes thereto that the purpose of such transfer is to cover such tax withholding obligations or the payment of taxes due in connection with the vesting event;
9.
the transfer of shares pursuant to a bona fide third-party tender offer, merger, consolidation, other similar transaction or series of related transactions involving a change of control (as defined below) of the company (including, without limitation, entering into any lock-up, voting or similar agreement pursuant to which the lock-up party may agree to transfer, sell, tender or otherwise dispose of common stock or other securities in connection with any such transaction, or vote any securities in favor of any such transaction); provided that all of such lock-up party’s shares subject to the lock-up agreement that are not so transferred, sold, tendered or otherwise disposed of remain subject to this letter agreement; and provided, further, that in the event that such change of control is not completed, the lock-up party’s shares shall remain subject to the lock-up agreement and title to the lock-up party’s shares shall remain with such lock-up; and
10.
to the underwriters pursuant to the Underwriting Agreement.
For the purposes of item 9 above, “change of control” means a transfer (whether by tender offer, merger, consolidation, other similar transaction or series of related transactions), in one transaction or a series of related transactions approved by our board of directors or a duly authorized committee thereof, to a person or group of affiliated persons, of our voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of the total voting power of our voting stock provided that, for the avoidance of doubt, this offering does not constitute a change of control.
Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC, in their sole discretion, may release shares of our common stock and other securities subject to the lock-up agreements described above in whole or in part at any time.
In order to facilitate the offering of the common stock, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the common stock. Specifically, the underwriters may sell more shares than they are obligated to purchase under the underwriting agreement, creating a short position. A short sale is covered if the short position is no greater than the number of shares available for purchase by the underwriters under the over-allotment option. The underwriters can close out a covered short sale by exercising the over-allotment option or purchasing shares in the open market. In determining the source of shares to close out a covered short sale, the underwriters will consider, among other things, the open market price of shares compared to the price available under the over-allotment option. The underwriters may also sell shares in excess of the over-allotment option, creating a naked short position. The underwriters must close out any naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market after pricing that could adversely affect investors who purchase in this offering. As an additional means of facilitating this offering, the underwriters may bid for, and purchase, shares of common stock in the open market to stabilize the price of the common stock. These activities may raise or maintain the market price of the common stock above independent market levels or prevent or retard a decline in the market price of the common stock. The underwriters are not required to engage in these activities and may end any of these activities at any time.
We and the underwriters have agreed to indemnify each other against certain liabilities, including liabilities under the Securities Act.
A prospectus in electronic format may be made available on websites maintained by one or more underwriters, or selling group members, if any, participating in this offering. The representatives may agree to allocate a number of shares of common stock to underwriters for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives to underwriters that may make Internet distributions on the same basis as other allocations.
The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities. Certain of the underwriters and their respective affiliates have, from time to time, performed, and may in the future perform, various financial advisory and investment banking services for us, for which they received or will receive customary fees and expenses.
In addition, in the ordinary course of their various business activities, the underwriters and their respective affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and instruments. Such investment and securities activities may involve our securities and instruments. The underwriters and their respective affiliates may also make investment recommendations or publish or express independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that they acquire, long or short positions in such securities and instruments.
Pricing of the Offering
Prior to this offering, there has been no public market for our common stock. The initial public offering price was determined by negotiations between us and the representatives. Among the factors considered in determining the initial public offering price were our future prospects and those of our industry in general, our sales, earnings and certain other financial and operating information in recent periods, and the price-earnings ratios, price-sales ratios, market prices of securities, and certain financial and operating information of companies engaged in activities similar to ours.
Directed Share Program
At our request, the underwriters have reserved for sale at the initial public offering price up to shares for certain employees, directors and other persons associated with us who have expressed an interest in purchasing shares in the offering. The number of shares available for sale to the general public in the offering will be reduced to the extent these persons purchase the directed shares in the program. Any directed shares not so purchased will be offered by the underwriters to the general public on the same terms as the other shares. Except for certain participants who have entered into lock-up agreements as contemplated above, each person buying shares through the directed share program shall have no restriction regarding transferring shares purchased in the directed share program. For those participants who have entered into lock-up agreements as contemplated above, the lock-up agreements contemplated therein shall govern with respect to their purchases of shares in the program. Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC in their sole discretion may release any of the securities subject to these lock-up agreements at any time. We have agreed to indemnify the underwriters against certain liabilities and expenses, including liabilities under the Securities Act, in connection with sales of the directed shares.
Selling Restrictions
United Kingdom
In relation to the United Kingdom, no shares may be offered pursuant to the offering to the public in the United Kingdom prior to the publication of a prospectus in relation to the shares which has been approved by the Financial Conduct Authority in accordance with the UK Prospectus Regulation, except
that an offer may be made to the public in the United Kingdom of any shares at any time under the following exemptions under the UK Prospectus Regulation:
(a)
to any legal entity which is a qualified investor as defined under the UK Prospectus Regulation;
(b)
to fewer than 150 natural or legal persons (other than qualified investors as defined under the UK Prospectus Regulation), subject to obtaining the prior consent of the representatives for any such offer; or
(c)
in any other circumstances falling within Article 1(4) of the UK Prospectus Regulation,
provided that no such offer of the shares shall require the Issuer or any Manager to publish a prospectus pursuant to Article 3 of the UK Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the UK Prospectus Regulation.
In the United Kingdom, the offering is only addressed to, and is directed only at, “qualified investors” within the meaning of Article 2(e) of the UK Prospectus Regulation, who are also (i) persons having professional experience in matters relating to investments who fall within the definition of “investment professionals” in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”); (ii) high net worth bodies corporate, unincorporated associations and partnerships and trustees of high value trusts as described in Article 49(2) of the Order; or (iii) persons to whom it may otherwise lawfully be communicated (all such persons being referred to as “relevant persons”). This document must not be acted on or relied on by persons who are not relevant persons. Any investment or investment activity to which this document relates is available only to relevant persons and will be engaged in only with relevant persons.
For the purposes of this provision, the expression an “offer to the public” in relation to the shares in the United Kingdom means the communication in any form and by any means of sufficient information on the terms of the offering and any shares to be offered so as to enable an investor to decide to purchase or subscribe for any shares, and the expression “UK Prospectus Regulation” means the UK version of Regulation (EU) No 2017/1129 as amended by The Prospectus (Amendment etc.) (EU Exit) Regulations 2019, which is part of UK law by virtue of the European Union (Withdrawal) Act 2018.
European Economic Area
In relation to each Member State of the European Economic Area (each an “EEA State”), no shares may be offered pursuant to the offering to the public in that EEA State prior to the publication of a prospectus in relation to the shares which has been approved by the competent authority in that EEA State or, where appropriate, approved in another EEA State and notified to the competent authority in that EEA State, all in accordance with the EU Prospectus Regulation, except that an offer may be made to the public in that EEA State of any shares at any time under the following exemptions under the EU Prospectus Regulation:
(a)
to any legal entity which is a qualified investor as defined under the EU Prospectus Regulation;
(b)
to fewer than 150 natural or legal persons (other than qualified investors as defined under the EU Prospectus Regulation), subject to obtaining the prior consent of representatives for any such offer; or
(c)
in any other circumstances falling within Article 1(4) of the EU Prospectus Regulation, provided that no such offer of the shares shall require the Issuer or any Manager to publish a prospectus pursuant to Article 3 of the EU Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the EU Prospectus Regulation.
For the purposes of this provision, the expression an “offer to the public” in relation to the shares in any EEA State means the communication in any form and by any means of sufficient information on the terms of the offer and any shares to be offered so as to enable an investor to decide to purchase or subscribe for any shares, and the expression “EU Prospectus Regulation” means Regulation (EU)2017/1129.
Canada
The shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the shares must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 (or, in the case of securities issued or guaranteed by the government of a non-Canadian jurisdiction, section 3A.4) of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
Australia
No placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities and Investments Commission (“ASIC”), in relation to the offering. This prospectus does not constitute a prospectus, product disclosure statement or other disclosure document under the Corporations Act 2001 (the “Corporations Act”), and does not purport to include the information required for a prospectus, product disclosure statement or other disclosure document under the Corporations Act.
Any offer in Australia of the shares may only be made to persons (the “Exempt Investors”) who are “sophisticated investors” (within the meaning of section 708(8) of the Corporations Act), “professional investors” (within the meaning of section 708(11) of the Corporations Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it is lawful to offer the shares without disclosure to investors under Chapter 6D of the Corporations Act.
The shares applied for by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the date of allotment under the offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act would not be required pursuant to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant to a disclosure document which complies with Chapter 6D of the Corporations Act. Any person acquiring shares must observe such Australian on-sale restrictions.
This prospectus contains general information only and does not take account of the investment objectives, financial situation or particular needs of any particular person. It does not contain any securities recommendations or financial product advice. Before making an investment decision, investors need to consider whether the information in this prospectus is appropriate to their needs, objectives and circumstances, and, if necessary, seek expert advice on those matters.
Switzerland
This document is not intended to constitute an offer or solicitation to purchase or invest in the securities. The securities may not be publicly offered, directly or indirectly, in Switzerland within the meaning of the Swiss Financial Services Act (“FinSA”) and no application has or will be made to admit the securities to trading on any trading venue (exchange or multilateral trading facility) in Switzerland. Neither this document nor any other offering or marketing material relating to the securities constitutes a prospectus pursuant to the FinSA, and neither this document nor any other offering or marketing material relating to the securities may be publicly distributed or otherwise made publicly available in Switzerland.
Japan
No registration pursuant to Article 4, paragraph 1 of the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended) (the “FIEL”) may be made with respect to the solicitation of the application for the acquisition of the shares of common stock.
Accordingly, the shares of common stock may not be, directly or indirectly, offered or sold in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan) or to others for re-offering or re-sale, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan except pursuant to an exemption from the registration requirements, and otherwise in compliance with, the FIEL and the other applicable laws and regulations of Japan.
Qualified Institutional Investors (“QII”)
Please note that the solicitation for newly-issued or secondary securities (each as described in Paragraph 2, Article 4 of the FIEL) in relation to the shares of common stock constitutes either a “QII only private placement” or a “QII only secondary distribution” (each as described in Paragraph 1, Article 23-13 of the FIEL). Disclosure regarding any such solicitation, as is otherwise prescribed in Paragraph 1, Article 4 of the FIEL, has not been made in relation to the shares of common stock. The shares of common stock may only be transferred to QIIs.
Non-QII Investors
Please note that the solicitation for newly-issued or secondary securities (each as described in Paragraph 2, Article 4 of the FIEL) in relation to the shares of common stock constitutes either a “small number private placement” or a “small number private secondary distribution” (each as is described in Paragraph 4, Article 23-13 of the FIEL). Disclosure regarding any such solicitation, as is otherwise prescribed in Paragraph 1, Article 4 of the FIEL, has not been made in relation to the shares of common stock. The shares of common stock may only be transferred en bloc without subdivision to a single investor.
Dubai International Financial Centre
This prospectus relates to an Exempt Offer in accordance with the Offered Securities Rules of the Dubai Financial Services Authority (“DFSA”). This prospectus is intended for distribution only to persons of a type specified in the Offered Securities Rules of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus nor taken steps to verify the information set forth herein and has no responsibility for the prospectus. The shares to which this prospectus relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the shares offered should conduct their own due diligence on the shares. If you do not understand the contents of this prospectus you should consult an authorized financial advisor.
Hong Kong
The shares may not be offered or sold in Hong Kong by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong), or the Companies (Winding Up and Miscellaneous Provisions) Ordinance, or which do not constitute an invitation to the public within the meaning of the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong), or the Securities and Futures Ordinance, or (ii) to “professional investors” as defined in the Securities and Futures Ordinance and any rules made there under, or (iii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance, and no advertisement, invitation or document relating to the shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to shares which
are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” in Hong Kong as defined in the Securities and Futures Ordinance and any rules made there under.
Singapore
This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined under Section 4A of the Securities and Futures Act, Chapter 289 of Singapore, or the SFA) under Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to conditions set forth in the SFA.
Where the shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor, the securities (as defined in Section 239(1) of the SFA) of that corporation shall not be transferable for 6 months after that corporation has acquired the shares under Section 275 of the SFA except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person (as defined in Section 275(2) of the SFA), (2) where such transfer arises from an offer in that corporation’s securities pursuant to Section 275(1A) of the SFA, (3) where no consideration is or will be given for the transfer, (4) where the transfer is by operation of law, (5) as specified in Section 276(7) of the SFA, or (6) as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore, or Regulation 32.
Where the shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is a trust (where the trustee is not an accredited investor (as defined in Section 4A of the SFA)) whose sole purpose is to hold investments and each beneficiary of the trust is an accredited investor, the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferable for 6 months after that trust has acquired the shares under Section 275 of the SFA except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person (as defined in Section 275(2) of the SFA), (2) where such transfer arises from an offer that is made on terms that such rights or interest are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction (whether such amount is to be paid for in cash or by exchange of securities or other assets), (3) where no consideration is or will be given for the transfer, (4) where the transfer is by operation of law, (5) as specified in Section 276(7) of the SFA, or (6) as specified in Regulation 32.
Singapore SFA Product Classification—In connection with Section 309B of the SFA and the Securities and Futures (Capital Markets Products) Regulations 2018 (the “CMP Regulations 2018”), the Company has determined, and hereby notifies all relevant persons (as defined in the CMP Regulations 2018), that the shares are “prescribed capital markets products” (as defined in the CMP Regulations 2018) and Excluded Investment Products (as defined in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on Investment Products).
Israel
This document does not constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed with or approved by the Israel Securities Authority. In Israel, this prospectus may be distributed only to, and is directed only at, and any offer of the shares is directed only at, (i) a limited number of persons in accordance with the Israeli Securities Law and (ii) investors listed in the first addendum, or the Addendum, to the Israeli Securities Law, consisting primarily of joint investment in trust funds, provident funds, insurance companies, banks, portfolio managers, investment advisors, members of the Tel Aviv Stock Exchange, underwriters, venture capital funds, entities with equity in excess of NIS 50 million and “qualified individuals,” each as defined in the Addendum (as it may be amended from time to time), collectively referred to as qualified investors (in each case, purchasing for their own account
or, where permitted under the Addendum, for the accounts of their clients who are investors listed in the Addendum). Qualified investors are required to submit written confirmation that they fall within the scope of the Addendum, are aware of the meaning of same and agree to it.
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus will be passed upon for us by Simpson Thacher & Bartlett LLP, Palo Alto, California. Certain legal matters relating to this offering will be passed upon for the underwriters by Latham & Watkins LLP.
EXPERTS
The financial statements as of December 25, 2020 and December 27, 2019, and for each of the two fiscal years in the period ended December 25, 2020, included in this Prospectus and the related financial statement schedule included elsewhere in the Registration Statement, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report appearing herein and elsewhere in the Registration Statement. Such financial statements and financial statement schedule have been so included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the common stock offered by this prospectus. This prospectus is a part of the registration statement and does not contain all of the information set forth in the registration statement and its exhibits and schedules, portions of which have been omitted as permitted by the rules and regulations of the SEC. For further information about us and our common stock, you should refer to the registration statement and its exhibits and schedules.
We will file annual, quarterly and special reports and other information with the SEC. Our filings with the SEC will be available to the public on the SEC’s website at http://www.sec.gov. Those filings will also be available to the public on, or accessible through, our website under the heading “Investor Relations” at . The information we file with the SEC or contained on or accessible through our corporate website or any other website that we may maintain is not part of this prospectus or the registration statement of which this prospectus is a part.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
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Page
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Audited Consolidated Financial Statements
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F-2
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F-3
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F-4
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F-5
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F-6
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F-7
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F-8
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F-34
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Unaudited Condensed Consolidated Financial Statements
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F-38
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F-39
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F-40
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F-41
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F-42
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F-43
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the stockholders and the Board of Directors of Snap One Holdings Corp.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Snap One Holdings Corp. (formerly Crackle Intermediate Corp.) and subsidiaries (the “Company’’) as of December 25, 2020 and December 27, 2019, the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows, for each of the two fiscal years in the period ended December 25, 2020, and the related notes and the schedule listed in the Index at Schedule I (collectively referred to as the "financial statements"). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 25, 2020 and December 27, 2019, and the results of its operations and its cash flows for each of the two fiscal years in the period ended December 25, 2020, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ DELOITTE & TOUCHE LLP
Charlotte, North Carolina
April 19, 2021
We have served as the Company's auditor since 2014.
Snap One Holdings Corp. and Subsidiaries
Consolidated Balance Sheets
(in thousands, except share amounts and par value)
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|
|
December 25,
2020
|
|
|
December 27,
2019
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|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$
|
77,458
|
|
|
|
|
$
|
33,177
|
|
|
|
Accounts receivable, net
|
|
|
|
|
49,363
|
|
|
|
|
|
46,226
|
|
|
|
Inventories, net
|
|
|
|
|
157,099
|
|
|
|
|
|
165,345
|
|
|
|
Prepaid expenses and other current assets
|
|
|
|
|
9,650
|
|
|
|
|
|
9,650
|
|
|
|
Total current assets
|
|
|
|
|
293,570
|
|
|
|
|
|
254,398
|
|
|
|
Long-term assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment, net
|
|
|
|
|
20,208
|
|
|
|
|
|
20,109
|
|
|
|
Goodwill
|
|
|
|
|
559,735
|
|
|
|
|
|
559,735
|
|
|
|
Other intangible assets, net
|
|
|
|
|
617,616
|
|
|
|
|
|
665,124
|
|
|
|
Other assets
|
|
|
|
|
6,409
|
|
|
|
|
|
7,219
|
|
|
|
Total assets
|
|
|
|
$
|
1,497,538
|
|
|
|
|
$
|
1,506,585
|
|
|
|
Liabilities and stockholders’ equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current maturities of long-term debt
|
|
|
|
$
|
21,149
|
|
|
|
|
$
|
6,824
|
|
|
|
Accounts payable
|
|
|
|
|
68,941
|
|
|
|
|
|
58,323
|
|
|
|
Accrued liabilities
|
|
|
|
|
80,658
|
|
|
|
|
|
69,574
|
|
|
|
Total current liabilities
|
|
|
|
|
170,748
|
|
|
|
|
|
134,721
|
|
|
|
Long-term liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving credit facility
|
|
|
|
|
—
|
|
|
|
|
|
5,000
|
|
|
|
Long-term debt, net of current portion
|
|
|
|
|
630,864
|
|
|
|
|
|
645,330
|
|
|
|
Deferred income tax liabilities, net
|
|
|
|
|
55,518
|
|
|
|
|
|
60,542
|
|
|
|
Other liabilities
|
|
|
|
|
22,669
|
|
|
|
|
|
24,065
|
|
|
|
Total liabilities
|
|
|
|
|
879,799
|
|
|
|
|
|
869,658
|
|
|
|
Commitments and contingencies (Note 14)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders’ equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock, $0.001 par value, 500,000 shares authorized; and 394,778 and 387,601 shares issued and outstanding at December 25, 2020 and December 27, 2019
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Additional paid in capital
|
|
|
|
|
659,685
|
|
|
|
|
|
655,001
|
|
|
|
Accumulated deficit
|
|
|
|
|
(43,018)
|
|
|
|
|
|
(18,134)
|
|
|
|
Accumulated other comprehensive income (loss)
|
|
|
|
|
756
|
|
|
|
|
|
(39)
|
|
|
|
Company’s stockholders’ equity
|
|
|
|
|
617,423
|
|
|
|
|
|
636,828
|
|
|
|
Noncontrolling interest
|
|
|
|
|
316
|
|
|
|
|
|
99
|
|
|
|
Total stockholders’ equity
|
|
|
|
|
617,739
|
|
|
|
|
|
636,927
|
|
|
|
Total liabilities and stockholders’ equity
|
|
|
|
$
|
1,497,538
|
|
|
|
|
$
|
1,506,585
|
|
|
The accompanying notes are an integral part of these consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Consolidated Statements of Operations
(in thousands, except share amounts and per share amounts)
|
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Net sales
|
|
|
|
$
|
814,113
|
|
|
|
|
$
|
590,842
|
|
|
|
Costs and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales, exclusive of depreciation and amortization
|
|
|
|
|
474,778
|
|
|
|
|
|
354,821
|
|
|
|
Selling, general and administrative expenses
|
|
|
|
|
267,240
|
|
|
|
|
|
209,986
|
|
|
|
Depreciation and amortization
|
|
|
|
|
57,972
|
|
|
|
|
|
39,657
|
|
|
|
Total costs and expenses
|
|
|
|
|
799,990
|
|
|
|
|
|
604,464
|
|
|
|
Income (loss) from operations
|
|
|
|
|
14,123
|
|
|
|
|
|
(13,622)
|
|
|
|
Other expenses (income):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
|
|
45,529
|
|
|
|
|
|
35,244
|
|
|
|
Other income
|
|
|
|
|
(1,827)
|
|
|
|
|
|
(1,048)
|
|
|
|
Total other expenses
|
|
|
|
|
43,702
|
|
|
|
|
|
34,196
|
|
|
|
Loss before income tax benefit
|
|
|
|
|
(29,579)
|
|
|
|
|
|
(47,818)
|
|
|
|
Income tax benefit
|
|
|
|
|
(4,351)
|
|
|
|
|
|
(13,357)
|
|
|
|
Net loss
|
|
|
|
|
(25,228)
|
|
|
|
|
|
(34,461)
|
|
|
|
Net loss attributable to noncontrolling interest
|
|
|
|
|
(344)
|
|
|
|
|
|
(97)
|
|
|
|
Net loss attributable to Company
|
|
|
|
$
|
(24,884)
|
|
|
|
|
$
|
(34,364)
|
|
|
|
Net loss per share, basic and diluted
|
|
|
|
$
|
(63.41)
|
|
|
|
|
$
|
(88.72)
|
|
|
|
Weighted average shares outstanding, basic and diluted
|
|
|
|
|
392,431
|
|
|
|
|
|
387,353
|
|
|
The accompanying notes are an integral part of these consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Consolidated Statements of Comprehensive Loss
(in thousands)
|
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Net loss
|
|
|
|
$
|
(25,228)
|
|
|
|
|
$
|
(34,461)
|
|
|
|
Other comprehensive income (loss), net of tax:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustments
|
|
|
|
|
795
|
|
|
|
|
|
(39)
|
|
|
|
Comprehensive loss
|
|
|
|
|
(24,433)
|
|
|
|
|
|
(34,500)
|
|
|
|
Comprehensive loss attributable to noncontrolling interest
|
|
|
|
|
(344)
|
|
|
|
|
|
(97)
|
|
|
|
Comprehensive loss attributable to Company
|
|
|
|
$
|
(24,089)
|
|
|
|
|
$
|
(34,403)
|
|
|
The accompanying notes are an integral part of these consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Consolidated Statements of Stockholders’ Equity
(in thousands, except share amounts)
|
|
|
|
Common Stock
|
|
|
Additional
Paid-In
Capital
|
|
|
Accumulated
Deficit
|
|
|
Accumulated
Other
Comprehensive
Income (Loss)
|
|
|
Noncontrolling
Interest
|
|
|
Total
Stockholders’
Equity
|
|
|
|
|
|
Number of
Shares
|
|
|
Amount
|
|
|
Balance – December 28, 2018
|
|
|
|
|
387,182
|
|
|
|
|
$
|
—
|
|
|
|
|
$
|
395,836
|
|
|
|
|
$
|
16,230
|
|
|
|
|
$
|
—
|
|
|
|
|
$
|
64
|
|
|
|
|
$
|
412,130
|
|
|
|
Net loss
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(34,364)
|
|
|
|
|
|
—
|
|
|
|
|
|
(97)
|
|
|
|
|
|
(34,461)
|
|
|
|
Foreign currency translation adjustments
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(39)
|
|
|
|
|
|
—
|
|
|
|
|
|
(39)
|
|
|
|
Capital contributions
|
|
|
|
|
419
|
|
|
|
|
|
—
|
|
|
|
|
|
255,510
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
132
|
|
|
|
|
|
255,642
|
|
|
|
Equity-based compensation expense
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
3,673
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
3,673
|
|
|
|
Repurchase of equity units
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(18)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(18)
|
|
|
|
Balance – December 27, 2019
|
|
|
|
|
387,601
|
|
|
|
|
$
|
—
|
|
|
|
|
$
|
655,001
|
|
|
|
|
$
|
(18,134)
|
|
|
|
|
$
|
(39)
|
|
|
|
|
$
|
99
|
|
|
|
|
$
|
636,927
|
|
|
|
Net loss
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(24,884)
|
|
|
|
|
|
—
|
|
|
|
|
|
(344)
|
|
|
|
|
|
(25,228)
|
|
|
|
Foreign currency translation adjustments
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
795
|
|
|
|
|
|
—
|
|
|
|
|
|
795
|
|
|
|
Capital contributions
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
400
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
561
|
|
|
|
|
|
961
|
|
|
|
Equity-based compensation expense
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
4,284
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
4,284
|
|
|
|
Additional share issuance
|
|
|
|
|
7,177
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Balance – December 25, 2020
|
|
|
|
|
394,778
|
|
|
|
|
$
|
—
|
|
|
|
|
$
|
659,685
|
|
|
|
|
$
|
(43,018)
|
|
|
|
|
$
|
756
|
|
|
|
|
$
|
316
|
|
|
|
|
$
|
617,739
|
|
|
The accompanying notes are an integral part of these consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Consolidated Statements of Cash Flows
(in thousands)
|
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
$
|
(25,228)
|
|
|
|
|
$
|
(34,461)
|
|
|
|
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
|
57,972
|
|
|
|
|
|
39,657
|
|
|
|
Amortization of debt issuance costs
|
|
|
|
|
6,101
|
|
|
|
|
|
3,895
|
|
|
|
Unrealized loss on interest rate cap
|
|
|
|
|
5
|
|
|
|
|
|
257
|
|
|
|
Deferred income taxes
|
|
|
|
|
(5,423)
|
|
|
|
|
|
(13,772)
|
|
|
|
Loss on sale and disposal of property and equipment
|
|
|
|
|
29
|
|
|
|
|
|
—
|
|
|
|
(Gain) loss on sale of business
|
|
|
|
|
(979)
|
|
|
|
|
|
561
|
|
|
|
Equity-based compensation
|
|
|
|
|
4,284
|
|
|
|
|
|
3,673
|
|
|
|
Bad debt expense
|
|
|
|
|
1,094
|
|
|
|
|
|
838
|
|
|
|
Fair value adjustment to contingent value rights
|
|
|
|
|
800
|
|
|
|
|
|
314
|
|
|
|
Change in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
|
|
(4,231)
|
|
|
|
|
|
(3,191)
|
|
|
|
Inventories
|
|
|
|
|
7,862
|
|
|
|
|
|
(9,332)
|
|
|
|
Prepaid expenses and other assets
|
|
|
|
|
1,932
|
|
|
|
|
|
1,934
|
|
|
|
Accounts payable and accrued liabilities
|
|
|
|
|
20,009
|
|
|
|
|
|
5,528
|
|
|
|
Net cash provided by (used in) operating activities
|
|
|
|
|
64,227
|
|
|
|
|
|
(4,099)
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
|
|
(10,245)
|
|
|
|
|
|
(4,496)
|
|
|
|
Proceeds from sale of business
|
|
|
|
|
600
|
|
|
|
|
|
—
|
|
|
|
Receipt of payment on notes receivable
|
|
|
|
|
79
|
|
|
|
|
|
86
|
|
|
|
Acquisition of businesses, net of cash acquired
|
|
|
|
|
—
|
|
|
|
|
|
(584,192)
|
|
|
|
Net cash used in investing activities
|
|
|
|
|
(9,566)
|
|
|
|
|
|
(588,602)
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from long-term debt
|
|
|
|
|
—
|
|
|
|
|
|
390,000
|
|
|
|
Payments on long-term debt
|
|
|
|
|
(6,824)
|
|
|
|
|
|
(2,923)
|
|
|
|
Payments of debt issuance costs
|
|
|
|
|
—
|
|
|
|
|
|
(20,198)
|
|
|
|
Proceeds from revolving credit facility
|
|
|
|
|
52,000
|
|
|
|
|
|
34,000
|
|
|
|
Payments on revolving credit facility
|
|
|
|
|
(57,000)
|
|
|
|
|
|
(38,000)
|
|
|
|
Repurchase of equity units
|
|
|
|
|
—
|
|
|
|
|
|
(18)
|
|
|
|
Proceeds from capital contributions
|
|
|
|
|
961
|
|
|
|
|
|
255,043
|
|
|
|
Net cash (used in) provided by financing activities
|
|
|
|
|
(10,863)
|
|
|
|
|
|
617,904
|
|
|
|
Effect of exchange rate changes on cash and cash equivalents
|
|
|
|
|
483
|
|
|
|
|
|
(125)
|
|
|
|
Net increase in cash and cash equivalents
|
|
|
|
|
44,281
|
|
|
|
|
|
25,078
|
|
|
|
Cash and cash equivalents – Beginning of period
|
|
|
|
|
33,177
|
|
|
|
|
|
8,099
|
|
|
|
Cash and cash equivalents – End of period
|
|
|
|
$
|
77,458
|
|
|
|
|
$
|
33,177
|
|
|
|
Supplementary cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash payments for interest
|
|
|
|
$
|
42,845
|
|
|
|
|
$
|
21,939
|
|
|
|
Cash paid (refunds) for taxes, net
|
|
|
|
$
|
217
|
|
|
|
|
$
|
(1,591)
|
|
|
|
Noncash investing and financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditure in accounts payable
|
|
|
|
$
|
140
|
|
|
|
|
$
|
349
|
|
|
|
Noncash equity contribution
|
|
|
|
$
|
428
|
|
|
|
|
$
|
599
|
|
|
The accompanying notes are an integral part of these consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
1.
Description of Business
Crackle Holdings LP (the “Parent”) was formed on June 14, 2017 by affiliates of Hellman & Friedman (the “Sponsor”) for the purposes of purchasing Snap One Holdings Corp., (formerly Crackle Intermediate Corp.) and its subsidiaries (collectively, the “Company”). On August 3, 2017, Parent acquired all of the Company’s outstanding equity interests. Since the acquisition of the Company by Parent on August 3, 2017, the Company has been controlled by funds managed by the Sponsor.
The Company provides products and support to its professional integrator-customers that enable them to deliver technology solutions to their residential and small business end users (“end consumers”). The Company’s product offering consists of both proprietary and third-party products in such categories as home automation, networking, audio, video, remote management and lighting as well as infrastructure products such as racks, mounts and cables.
2.
Significant Accounting Policies
Basis of Presentation — The consolidated financial statements have been prepared in conformity with generally accepted accounting principles in the United States of America (GAAP). The consolidated financial statements include the accounts of the Company and all subsidiaries required to be consolidated. All intercompany balances and transactions have been eliminated in the consolidated financial statements.
The Company’s fiscal year is the 52 or 53 week period that ends on the last Friday of December. Fiscal years 2020 and 2019 were 52-week periods.
Use of Accounting Estimates — The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported and disclosed in the consolidated financial statements and accompanying notes. Accordingly, the actual amounts could differ from those estimates.
Significant estimates relied upon in preparing these consolidated financial statements include, but are not limited to, the amortization period associated with customer relationships, estimated standalone selling prices associated with products that contain distinct performance obligations not sold separately, warranty reserves, excess and obsolete inventory reserves, impairment of long-lived assets, impairment of indefinite lived intangibles and goodwill, assumptions related to the valuation of contingent value rights (“CVRs”) and incentive units, the valuation allowance associated with deferred tax assets, and the valuation of assets and liabilities associated with acquisitions. If actual amounts differ from estimates, revisions are included in the consolidated statements of operations in the period the actual amounts become known.
Segment Information — Operating segments are identified as components of an enterprise for which discrete financial information is available for evaluation by the chief operating decision-maker, or CODM, in making decisions regarding resource allocation and assessing performance. The Company’s CODM is its Chief Executive Officer. The Company’s CODM views its operations and manages the business as a single operating segment and reportable segment.
Fair Value Measurements — GAAP defines fair value as the price that would be received for selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. A fair value measurement assumes that the transaction to sell the asset or transfer the liability occurs in the principal market for the asset or liability or, in the absence of a principal market, the most advantageous market. Assets and liabilities recorded at fair value are measured and classified in accordance with a three-tier fair value hierarchy based on the observability of the inputs available in the market used to measure fair value:
Level 1 — Valuations based on unadjusted quoted prices for identical instruments in active markets that are available as of the measurement date.
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
Level 2 — Valuations based on quoted prices in markets that are not active or for which all significant inputs are observable, either directly or indirectly.
Level 3 — Valuations based on inputs that are unobservable and significant to the overall fair value measurement.
This fair value hierarchy requires entities to maximize the use of observable inputs and minimize the use of unobservable inputs.
The Company’s financial instruments that are remeasured at fair value on a recurring basis include contingent value rights and the interest rate cap (see Note 8). Additionally, cash and cash equivalents, accounts receivable, net, prepaid expenses, accounts payable, and accrued liabilities are classified as Level 1 and the carrying value of these assets and liabilities approximate their fair value due to the short-term nature of these financial instruments. See Note 9 for further details on fair value measurements.
Certain non-financial assets, such as property and equipment, goodwill and other intangible assets, are adjusted to fair value when an impairment charge is recognized using predominantly Level 2 and Level 3 inputs.
Cash and Cash Equivalents — The Company considers all cash on hand, credit card receivables and short-term investments with original maturities of three months or less to be cash and cash equivalents.
Accounts Receivable, Net — Accounts receivable are recorded at the invoiced amount less allowances for doubtful accounts and do not bear interest. The allowance for nonpayment by customers is based on the creditworthiness and historical payment experience of the Company’s customers, age of receivables and current market conditions. Provisions for uncollectible receivables are recorded in selling, general and administrative expenses in the consolidated statements of operations. The Company writes off accounts receivable balances to the allowance for doubtful accounts when it becomes likely that they will not be collected.
Changes in the Company’s allowance for doubtful accounts for the years ended December 25, 2020 and December 27, 2019 are as follows:
|
|
Allowance for doubtful accounts – December 28, 2018
|
|
|
|
$
|
615
|
|
|
|
|
Bad debt expense
|
|
|
|
|
838
|
|
|
|
|
Write-offs
|
|
|
|
|
(697)
|
|
|
|
|
Allowance for doubtful accounts acquired
|
|
|
|
|
1,380
|
|
|
|
|
Allowance for doubtful accounts – December 27, 2019
|
|
|
|
|
2,136
|
|
|
|
|
Bad debt expense
|
|
|
|
|
1,094
|
|
|
|
|
Write-offs
|
|
|
|
|
(877)
|
|
|
|
|
Allowance for doubtful accounts – December 25, 2020
|
|
|
|
$
|
2,353
|
|
|
Concentration of Credit Risk — The Company’s cash and cash equivalents and accounts receivable are potentially subject to concentration of credit risk. Certain balances in cash and cash equivalents exceed the Federal Deposit Insurance Corporation limit of $250. The Company believes credit risk related to these deposits is minimal. Accounts receivable are derived from revenue earned from customers. For the years ended December 25, 2020 and December 27, 2019, no customer accounted for more than 10% of net sales. No individual customer accounted for more than 10% of accounts receivable, net, at December 25, 2020 or December 27, 2019.
Property and Equipment, Net — Property and equipment, net is stated at cost. Depreciation is computed using the straight-line method over the estimated useful lives of the assets. Leasehold improvements are amortized over the shorter of the useful life of the related assets or the lease term. Expenditures for repairs
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
and maintenance are charged to expense as incurred. For assets sold or otherwise disposed of, the cost and related accumulated depreciation are removed from the accounts, and any related gain or loss is reflected in selling, general and administrative expenses on the consolidated statements of operations.
The following table summarizes the estimated useful lives of each respective asset category:
|
|
Equipment
|
|
|
2 – 10 years
|
|
|
|
Computers and software
|
|
|
3 – 5 years
|
|
|
|
Furniture and fixtures
|
|
|
2 – 7 years
|
|
|
|
Leasehold Improvements
|
|
|
Shorter of 15 years or life of lease
|
|
Property and equipment, net is reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. The recoverability of property and equipment, net is evaluated by comparing the carrying amount to the estimated undiscounted cash flows. If the carrying amount exceeds the estimated undiscounted cash flows, an impairment charge would be recognized for the amount by which the carrying amount exceeds the fair value of the property and equipment, net. There were no impairment losses recognized by the Company for the years ended December 25, 2020 and December 27, 2019.
Internal-Use Software — The Company capitalizes costs associated with customized internal-use software systems once they have reached the application development stage. Such capitalized costs include external direct costs utilized in developing or obtaining the applications and payroll and payroll-related expenses for employees who are directly associated with the development of the applications. Capitalization of such costs begins when the preliminary project stage is complete and ceases at the point in which the project is substantially complete and is ready for its intended purpose.
Goodwill and Other Intangible Assets — Goodwill and identifiable indefinite lived intangible assets are tested for impairment annually as of the end of the third quarter of each fiscal year, or more frequently upon the occurrence of certain events or substantive changes in circumstances that indicate impairment is more likely than not.
In assessing potential goodwill impairment, the Company has the option to first assess qualitative factors to determine whether events or circumstances indicate it is more likely than not that the fair value of the Company’s net assets is less than the carrying amount of the Company’s single reporting unit. If the qualitative factors indicate it is more likely than not that the fair value of net assets is less than its carrying amount, the Company performs a quantitative impairment test. In the quantitative assessment, the Company compares the fair value of the reporting unit to its carrying value. The Company estimates the fair value of the reporting unit using generally accepted valuation techniques which include a weighted combination of income and market approaches. The income approach incorporates a discounted future cash flows analysis with key assumptions in the cash flow model for future revenues, operating costs, working capital changes, capital expenditures, and a discount rate that approximates the Company’s weighted-average cost of capital. The market approach considers the Company’s results of operations and information about the Company’s publicly traded competitors, such as earnings multiples, making adjustments to the selected competitors based on size, strengths and weaknesses, as well as publicly announced acquisition transactions.
The Company’s valuation methodology for assessing impairment requires management to make judgments and assumptions based on historical experience and projections of future operating performance. If these assumptions differ materially from future results, the Company may record impairment charges in the future.
The Company performed annual impairment tests for goodwill and indefinite lived intangible assets at September 25, 2020 and September 27, 2019 and concluded there was no impairment.
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
The Company reviews identifiable definite lived intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. For the years ended December 25, 2020 and December 27, 2019, the Company determined there were no indicators of impairment relating to identifiable definite lived intangible assets. The Company amortizes definite lived intangible assets using the straight-line method over their estimated useful lives. See Note 7.
Notes Receivable — Notes receivable are presented in other assets. The Company accrues interest on notes receivable based on the contractual terms of the notes. As of December 25, 2020, and December 27, 2019, the outstanding notes receivable balance was $5,115 and $4,740, respectively, and no allowance was recorded against the balance.
Self-Insured Liabilities — The Company is self-insured for employee medical coverage. The Company records a liability for estimates of the aggregate ultimate losses and claims incurred but not reported. Adjustments to the reserve are made when the facts and circumstances change. If actual settlements of medical claims are greater than estimated amount, additional expense will be recognized. As of December 25, 2020, and December 27, 2019, the liability was $1,215 and $425, respectively.
Contingent Value Rights — In connection with the acquisition of the Company by the Parent, the Company issued CVRs to the sellers. Each CVR gives the holder the ability to earn cash payments based on the return of the Sponsor’s original investment hitting stated thresholds. The CVRs were issued at two thresholds. The first CVR is payable to the holders when the Sponsor’s return on investment grows to between 2.25 and 2.5 times the Sponsor’s original investment. The second CVR is payable to the holders when the Sponsor’s return on investment grows to between 2.5 and 2.67 times the Sponsor’s original investment. The Company records CVR obligations at fair value (see Note 9). Contingent consideration obligations generally become due and payable to the holders of these rights if specified future events occur or conditions are met. There were no amounts due and payable during the fiscal years ended December 25, 2020 and December 27, 2019.
Warranties — The Company provides assurance-type warranties on most of its proprietary products covering periods that vary between one year and the lifetime of the product. The warranties cover products that are defective under normal conditions of use and are in-line with industry standards. The Company estimates the costs that may be incurred under its warranties and records the liability at the time product sales are recorded. The warranty liability is primarily based on historical failure rates and costs to repair or replace the product, including any necessary shipping costs. Changes in the Company’s accrued warranty liability for the years ended December 25, 2020 and December 27, 2019, are as follows:
|
|
Accrued warranty – December 28, 2018
|
|
|
|
$
|
11,335
|
|
|
|
|
Warranty claims
|
|
|
|
|
(9,686)
|
|
|
|
|
Warranty provisions
|
|
|
|
|
15,795
|
|
|
|
|
Acquired warranty liability
|
|
|
|
|
2,545
|
|
|
|
|
Accrued warranty – December 27, 2019
|
|
|
|
|
19,989
|
|
|
|
|
Warranty claims
|
|
|
|
|
(12,252)
|
|
|
|
|
Warranty provisions
|
|
|
|
|
8,786
|
|
|
|
|
Accrued warranty – December 25, 2020
|
|
|
|
$
|
16,523
|
|
|
As of December 25, 2020, the Company has recorded accrued warranty liabilities of $11,767 in accrued liabilities and $4,756 in other liabilities in the accompanying consolidated balance sheet. As of December 27, 2019, the Company has recorded accrued warranty of $11,686 in accrued liabilities and $8,303 in other liabilities.
Revenue Recognition — The Company sells hardware products to professional installers, who then resell the products to end consumers, in the installation of an audio/video, IT, smart-home or surveillance-related
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
package. In certain instances, the Company sells specific products directly to end consumers. The Company’s products consist of proprietary hardware products with and without embedded software, as well as third-party products. The Company provides services associated with product sales including the ability to access the Company’s hosted OvrC application (“hosting”), technical support, subscription services, and access to unspecified software updates and upgrades. The OvrC application provides the Company’s integrators with a cloud-based remote management and monitoring platform to assist end consumers. These services are typically provided at no additional charge to the customer.
For product sales, revenue is recognized when the customer obtains control of the product, which occurs upon shipment, in an amount that reflects the consideration expected to be received in exchange for those products. For services, revenue is recognized ratably over the contract period in an amount that reflects the consideration expected to be received in exchange for those services as the customer receives such services on a consistent basis throughout the contract period. The technical support represents a series of distinct performance obligations that have the same pattern of transfer to the customer and are recognized as a single performance obligation ratably over the estimated life of the related product.
The Company’s contracts with integrators, distributors and retailers can include promises to transfer multiple products and services. Determining whether multiple products and services are considered distinct performance obligations that should be accounted for separately rather than as a combined performance obligation can require significant judgment.
For contracts with multiple performance obligations, the Company allocates the contract’s transaction price to each performance obligation based on the relative standalone selling price (“SSP”). Judgment is required to determine the SSP for each distinct performance obligation that is not sold separately, including technical support, customer reward programs, unspecified software updates and upgrades, and hosting. In instances where SSP is not directly observable, the primary method used to estimate the SSP is the expected cost plus an estimated margin approach, under which the Company forecasts the expected costs of satisfying a performance obligation and then adds an appropriate margin for that distinct service based on margins for similar services sold on a standalone basis.
For hardware products sold with embedded software, the products are dependent on and highly interrelated with the underlying software and accounted for as a single performance obligation with revenue recognized at the point in time when control is transferred to the customer, which is at the time the product is shipped. In cases where there is more than one performance obligation, a portion of the transaction price is allocated to hosting, unspecified software updates and upgrades, and technical support based on a relative stand-alone selling price method, as these services are provided at no additional charge. The allocated transaction price and corresponding revenue is deferred at the time of sale and recognized ratably over the estimated life of the related devices as this method best depicts the progress towards the completion of the related performance obligation.
The Company offers a subscription service that allows consumers to control and monitor their homes remotely and allows the end consumer’s respective integrator to perform remote diagnostic services. With a subscription, the integrator simultaneously receives and consumes the benefits provided by the Company throughout the subscription period as the Company makes service available for use. There is a single performance obligation associated with the subscription services and the related revenue is deferred and recognized ratably over the contract period, which is typically one year, as this method best depicts the progress towards the completion of the related performance obligation.
The Company evaluates whether the Company is the principal or the agent for all customer sales. Generally, the Company reports revenue on a gross basis (the amount billed to customers is recorded as revenue, and the amount paid to vendors is recorded as cost of sales, exclusive of depreciation and amortization). The Company is the principal in these instances because the Company controls the inventory before it is transferred to customers. The Company’s control is evidenced by the sole ability to monetize the inventory, being primarily responsible to customers, having discretion in pricing, or a combination of
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
these factors. The Company also generates revenue through agency for certain third-party product sales where the supplier is the party responsible for ensuring fulfillment of the orders, has the obligation to mitigate any issues the customers may have with the products, and has the discretion in establishing the price for the products. In such cases, the Company does not control the promised good before it is transferred. The Company records sales for which the Company acts as an agent on a net basis.
The Company has various customer rewards programs (“marketing incentive programs”), which enable participants to earn points for qualifying rewards. The points are redeemed for rewards, including various prizes or product credits for future purchases. The marketing incentive programs provide the customer a material right and give rise to a separate performance obligation. The related revenue and expense incurred are recognized at the time of redemption, expiration, or forfeiture, as that is the point at which the performance obligation related to this incentive program is satisfied. As of December 25, 2020, and December 27, 2019, deferred revenue relating to marketing incentive programs was $1,508 and $2,024, respectively. The deferred revenue relating to marketing incentive programs is recorded in accrued liabilities on the Company’s consolidated balance sheets. The expense associated with the marketing incentive programs was $1,672 for the year ended December 25, 2020 and included in cost of sales, exclusive of depreciation and amortization, in the accompanying consolidated statements of operations. There was no expense associated with marketing incentive programs for the year ended December 27, 2019.
Certain customers may receive cash-based incentives or credits (“volume rebates”) which are accounted for as variable consideration. The Company records reductions to revenue for integrator incentives at the time of the initial sale, which is based on estimates of the sales volume customers will reach during the measured period.
Revenue is recognized net of estimated discounts, rebates, and return allowances. The Company estimates the reduction to sales and cost of sales, exclusive of depreciation and amortization for returns based on current sales levels and the Company’s historical return trends. Sales return allowances and rebates were $7,403 and $6,549 as of December 25, 2020 and December 27, 2019, respectively.
The Company has elected to account for shipping and handling costs as activities to fulfill the promise to transfer the goods. As a result of this accounting policy election, the Company does not consider shipping and handling activities as promised services to its customers. Therefore, shipping and handling costs billed to customers are recorded in net sales, and the related costs in selling, general and administrative expenses.
Payment terms and conditions vary by contract type, although terms generally include a requirement of payment within 30 days. In instances where the timing of revenue recognition differs from the timing of invoicing, the Company has determined the contracts do not include a significant financing component. The invoicing terms provide customers with a simplified and predictable way to purchase products and services and are not intended to provide the Company with financing from its customers. The Company records revenue net of any taxes collected from customers, which are subsequently remitted to governmental authorities.
ASC 606 requires companies to recognize an asset for the incremental costs of obtaining a contract with a customer if the entity expects to recover those costs. The Company has elected to immediately expense contract acquisition costs that would be amortized in one year or less. The Company recognizes an asset for the incremental costs of obtaining a contract with a customer if the benefit of those costs is expected to be longer than one year. These incremental costs were not material for all periods presented. There were no capitalized costs to fulfill a contract with a customer.
Selling, General and Administrative Expenses — Selling, general and administrative expenses include office expenses such as payroll and occupancy costs, costs related to warehousing, distribution, outbound transportation to the Company’s customers, warranty, advertising, purchasing, insurance, non-income based taxes, research and development, and corporate overhead costs.
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
The Company includes the cost of shipping and handling products sold to customers in selling, general and administrative expenses, and records the cost as incurred. Shipping charges billed to customers are included in net sales. For the years ended December 25, 2020 and December 27, 2019, shipping and handling costs totaled $21,993 and $18,340, respectively.
Research and Development Expenses — Research and development expenses consist primarily of personnel-related expenses for employees working on the product development and software and device engineering teams, including salaries, bonuses, equity-based compensation, benefits and other personnel costs, consulting and contractor expenses, as well as costs for prototypes, facilities, and travel. Research and development expenses were $51,967 and $41,520 for the years ended December 25, 2020 and December 27, 2019, respectively.
Advertising — Advertising costs, which are expensed as incurred, consist primarily of direct mail and print advertising, internet marketing and advertising, and trade show events. Advertising expenses were $4,476 and $5,653 for the years ended December 25, 2020 and December 27, 2019, respectively.
Equity-Based Compensation — The Company recognizes equity-based compensation expense based on the fair value of the awards at the grant date. The Company uses the Black-Scholes option-pricing model (“OPM”), which uses certain subjective assumptions in determining the fair value of the awards. Compensation cost is recognized ratably over the vesting period of the related equity-based compensation award. Forfeitures are accounted for as they occur. For further discussion, see Note 12.
Other Income — Other income primarily consists of interest income, gains and losses on disposal of businesses, and foreign currency remeasurement and transaction gains and losses.
Income Taxes — The Company files a consolidated federal income tax return and accounts for income taxes in accordance with ASC 740, Income Taxes, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the consolidated financial statements or income tax returns. Under this method, deferred income tax assets and liabilities are recognized based on the differences between the consolidated financial statement amounts and income tax basis of assets and liabilities using enacted tax rates in effect for the period in which the differences are expected to be recovered or settled. Valuation allowances are established, when necessary, to reduce deferred income tax assets to the amount expected to be realized (see Note 13).
The Company records liabilities for income tax positions taken, or expected to be taken, when those positions are deemed uncertain to be upheld upon examination by taxing authorities. Interest and penalties, if incurred, would be recorded within the income tax provision in the accompanying consolidated statements of operations.
Foreign Currency Translation and Foreign Currency Transactions — The functional currency of the Company’s foreign subsidiaries are the pound sterling for the United Kingdom, Germany and Serbia; the Australian dollar for Australia; and the U.S. dollar for China and India. For subsidiaries with a functional currency different from the U.S. dollar, the subsidiaries’ assets and liabilities have been translated to U.S. dollars using the exchange rates in effect at the balance sheet dates. Statements of operations amounts have been translated using the monthly average exchange rate for each year. Foreign currency translation gains or losses are reflected in accumulated other comprehensive loss as a component of equity in the accompanying consolidated balance sheets. Foreign currency remeasurement and transaction gains and losses are included in other income.
Net Loss Per Share — The Company calculates net loss per share by dividing the net loss by the weighted average number of common shares outstanding. The Company had no potentially dilutive securities for the periods presented.
Emerging Growth Company Status — The JOBS Act permits an “emerging growth company” such as us to take advantage of an extended transition period to comply with new or revised accounting standards
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
applicable to public companies until those standards would otherwise apply to private companies. The Company has elected not to “opt out” of such extended transition period, which means that when a standard is issued or revised and it has different application dates for public or private companies, the Company will adopt the new or revised standard at the time private companies adopt the new or revised standard and will do so until such time that the Company either (i) irrevocably elects to “opt out” of such extended transition period or (ii) no longer qualifies as an emerging growth company. The Company may choose to early adopt any new or revised accounting standards whenever such early adoption is permitted for private companies.
Recently Adopted Accounting Pronouncements — In January 2017, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2017-04, Intangibles — Goodwill and Other (Topic 350) — Simplifying the Test for Goodwill Impairment, which removes step two of the goodwill impairment test, which requires a hypothetical purchase price allocation. A goodwill impairment amount will now be the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carrying amount of goodwill. Recently, the FASB issued ASU 2019-10, which deferred the effective date for annual or interim goodwill impairment tests to fiscal years beginning after December 15, 2022, with early adoption permitted for goodwill impairment tests performed after January 1, 2017. The Company adopted this standard for the year starting December 28, 2019. The adoption of this standard has not had a material impact on the Company’s consolidated financial statements.
In August 2018, the FASB issued ASU No. 2018-13, Fair Value Measurement (Topic 820): Changes to the Disclosure Requirement for Fair Value Measurement, which provides guidance to improve the effectiveness of fair value measurement disclosures in notes to the consolidated financial statements. The update removes several existing disclosure requirements, including but not limited to: (i) the amount of and reasons for transfers between Level 1 and Level 2 for the fair value hierarchy, (ii) the policy for timing of transfers between levels and (iii) the valuation processes for Level 3 fair value measurements. The update also modifies and clarifies several existing disclosure requirements. The Company adopted this standard for the year ended December 25, 2020. The adoption of this guidance did not have a material impact on the Company’s consolidated financial statements.
Recent Accounting Pronouncements Pending Adoption — In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842), which establishes the principles to report transparent and economically neutral information about the assets and liabilities that arise from leases. This new guidance requires lessees to recognize the lease assets and lease liabilities that arise from leases in the statement of financial position and to disclose qualitative and quantitative information about lease transactions, such as information about variable lease payments and options to renew and terminate leases. Recently, the FASB issued ASU 2020-05, which deferred the effective date to fiscal years beginning after December 15, 2021, and interim periods within fiscal years beginning after December 15, 2022. Adoption of the new standard is expected to result in the recognition of right-of-use assets and operating lease liabilities related to currently classified operating leases. The Company is still evaluating the materiality of the impact of this standard on its consolidated financial statements and disclosures.
In June 2016, the FASB issued ASU 2016-13, “Financial Instruments — Credit Losses”. The ASU sets forth a “current expected credit loss” (“CECL”) model which requires the Company to measure all expected credit losses for financial instruments held at the reporting date based on historical experience, current conditions, and reasonable supportable forecasts. This replaces the existing incurred loss model and is applicable to the measurement of credit losses on financial assets measured at amortized cost and applies to some off-balance sheet credit exposures. This ASU was effective for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years, with early adoption permitted. In November 2019, the FASB issued ASU 2019-10 which deferred the effective date to fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. The Company is currently evaluating the impact this guidance will have on its consolidated financial statements.
In August 2018, the FASB issued ASU 2018-15, “Intangibles — Goodwill and Other — Internal-Use Software (Subtopic 350-40): Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
Arrangement That is a Service Contract”. The guidance aligns the requirements for capitalizing implementation costs incurred in a cloud computing arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-use software. This standard is effective for annual reporting periods beginning after December 15, 2020, and interim periods within annual periods beginning after December 15, 2021. The Company is currently evaluating the impact this guidance will have on its consolidated financial statements.
In March 2020, the FASB issued ASU 2020-04, “Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting,” which provides optional guidance for a limited period of time to ease the potential burden in accounting for (or recognizing the benefits of) reference rate reform on financial reporting. The amendments in ASU 2020-04 are elective and apply to all entities, subject to meeting certain criteria, that have contract, hedging relationships, and other transactions that reference London Interbank Offered Rate (LIBOR) or another reference rate expected to be discontinued because of reference rate reform. The Company may elect to apply the amendments in ASU 2020-04 to contracts that reference LIBOR or a reference rate that is expected to discontinue as a result of reference rate reform through December 31, 2022. The Company is in the process of reviewing its debt obligations that use LIBOR as the reference rate and is currently evaluating the potential impact that the adoption of this ASU will have on its consolidated financial statements.
3.
Acquisitions
All of the Company’s acquisitions have been accounted for under ASC 805, Business Combinations. Accordingly, the accounts of the acquired companies, after adjustments to reflect fair values assigned to assets and liabilities, have been included in the consolidated financial statements from their respective dates of acquisition. There were no material purchase price adjustments made subsequent to the initial recognition of assets and liabilities. As such, the accounting for the business combinations outlined below was complete as of December 27, 2019. There were no material acquisitions during the year ended December 25, 2020.
The Company records purchase price in excess of amounts allocated to identifiable assets and liabilities as goodwill. Goodwill includes, but is not limited to, the value of the workforce in place, ability to generate profits and cash flows, and an established going concern.
Customer relationships have been valued using the multi-period excess earnings method, a derivative of the income approach. The multi-period excess earnings method estimates the discounted net earnings attributable to the customer relationships that were acquired after considering items, such as possible customer attrition. Estimated useful lives were determined based on the length and trend of projected cash flows. The length of the projected cash flow period was determined based on how quickly the customer relationships are expected to amortize, which is based on the Company’s historical experience in renewing and extending similar customer relationships and future expectations for renewing and extending similar existing customer relationships. The useful life of the customer relationships intangible assets represents the number of years over which the Company expects the customer relationships to economically contribute to the business.
The trade names have been valued using the relief from royalty method under the income approach to estimate the cost savings that will accrue to the Company, which would otherwise have to pay royalties or license fees on revenue earned through the use of the assets. Estimated useful lives were determined based on management’s estimate of the period the name will be in use.
Technology has been valued using the relief from royalty method to value technology related to three major categories: Other Home Automation, Lighting and Speakers. The relief from royalty method, a derivative of the income approach, was used to estimate the cost savings that will accrue to the Company, which would otherwise have to pay royalties or license fees on revenue earned through the use of the asset. Estimated useful lives were determined based on management’s estimate of the period the technology will be in use.
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
Transactions Completed in Fiscal Year 2019 — On March 14, 2019, the Company executed a stock purchase agreement with Marketing Representatives, Inc. (“MRI”), a New England based distributor of audiovisual equipment to home installers for cash consideration of $9,260, net of cash of $201, to expand the Company’s retail presence. The MRI Acquisition was funded by a combination of the Company’s cash on hand and borrowings.
On July 17, 2019, the Company executed a stock purchase agreement with Custom Plus Distributing, Inc. (“CPD”), a West Coast based distributor of audio-visual equipment to home installers for $12,507, net of cash of $814, to expand the Company’s retail presence. The CPD Acquisition was funded by a combination of the Company’s cash on hand and borrowings.
On May 8, 2019, the Company entered into an agreement and plan of merger to acquire all the issued and outstanding shares of common stock of Control4 Corporation (“C4” or “Control4”). On August 1, 2019, the transaction was executed for $563,024, net of cash of $21,272, to expand the Company’s product offerings. The acquisition of Control4 was funded through a cash contribution from Sponsor to the Company of $218,695, proceeds from the incremental borrowing under the amendment to the Company’s credit agreement of $365,002 (see Note 8), and the rollover shareholders’ interest valued at $599.
Together, these three acquisitions are referred to as the “2019 acquisitions”. The allocation of the purchase price for the 2019 acquisitions is as follows:
|
|
|
|
MRI
|
|
|
CPD
|
|
|
C4
|
|
|
Total
|
|
|
Accounts receivable
|
|
|
|
$
|
902
|
|
|
|
|
$
|
437
|
|
|
|
|
$
|
21,725
|
|
|
|
|
$
|
23,064
|
|
|
|
Inventories
|
|
|
|
|
5,908
|
|
|
|
|
|
6,084
|
|
|
|
|
|
49,654
|
|
|
|
|
|
61,646
|
|
|
|
Prepaid expenses and other current assets
|
|
|
|
|
84
|
|
|
|
|
|
64
|
|
|
|
|
|
8,716
|
|
|
|
|
|
8,864
|
|
|
|
Property and equipment
|
|
|
|
|
219
|
|
|
|
|
|
174
|
|
|
|
|
|
8,914
|
|
|
|
|
|
9,307
|
|
|
|
Other intangible assets
|
|
|
|
|
3,397
|
|
|
|
|
|
8,078
|
|
|
|
|
|
297,152
|
|
|
|
|
|
308,627
|
|
|
|
Deferred tax assets
|
|
|
|
|
166
|
|
|
|
|
|
150
|
|
|
|
|
|
675
|
|
|
|
|
|
991
|
|
|
|
Other assets
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
1,038
|
|
|
|
|
|
1,038
|
|
|
|
Total identifiable assets acquired
|
|
|
|
|
10,676
|
|
|
|
|
|
14,987
|
|
|
|
|
|
387,874
|
|
|
|
|
|
413,537
|
|
|
|
Accounts payable
|
|
|
|
|
2,694
|
|
|
|
|
|
4,153
|
|
|
|
|
|
20,551
|
|
|
|
|
|
27,398
|
|
|
|
Accrued liabilities
|
|
|
|
|
950
|
|
|
|
|
|
681
|
|
|
|
|
|
39,256
|
|
|
|
|
|
40,887
|
|
|
|
Other liabilities
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
6,985
|
|
|
|
|
|
6,985
|
|
|
|
Deferred tax liabilities
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
41,003
|
|
|
|
|
|
41,003
|
|
|
|
Total liabilities assumed
|
|
|
|
|
3,644
|
|
|
|
|
|
4,834
|
|
|
|
|
|
107,795
|
|
|
|
|
|
116,273
|
|
|
|
Total fair value of net assets, excluding goodwill
|
|
|
|
|
7,032
|
|
|
|
|
|
10,153
|
|
|
|
|
|
280,079
|
|
|
|
|
|
297,264
|
|
|
|
Goodwill
|
|
|
|
|
2,228
|
|
|
|
|
|
2,354
|
|
|
|
|
|
282,945
|
|
|
|
|
|
287,527
|
|
|
|
Total purchase consideration, net of cash
|
|
|
|
$
|
9,260
|
|
|
|
|
$
|
12,507
|
|
|
|
|
$
|
563,024
|
|
|
|
|
$
|
584,791
|
|
|
Accounts receivable, prepaid expenses and other current assets, accounts payable, and accrued liabilities and other current liabilities (with the exception of deferred revenue as discussed below) were stated at their historical carrying values, which approximated their fair value given the short-term nature of these assets and liabilities for the 2019 acquisitions.
The cumulative fair value of accounts receivables acquired in the 2019 acquisitions includes gross amounts due of $24,444, of which $1,380 is expected to be uncollectible.
Inventories were also stated at their historical carrying value, which approximated their fair value based on the nature of the inventory acquired and analysis of current replacement costs and obsolescence.
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
Property and equipment acquired consisted of equipment, computers and software, furniture and fixtures, and leasehold improvements. The historical carrying value of property and equipment was considered to approximate the fair value based on the nature of the assets acquired and analysis of physical deterioration and obsolescence.
For income tax purposes, a carryover basis in goodwill of $1,698, $1,146, and $356 will be deductible in future periods for MRI, CPD and C4, respectively.
The Company recorded intangible assets related to the 2019 acquisitions based on their estimated fair values, which consisted of the following:
|
|
|
|
Useful Lives
(Years)
|
|
|
MRI
|
|
|
CPD
|
|
|
C4
|
|
|
Total
|
|
|
Customer Relationships
|
|
|
13 – 25
|
|
|
|
$
|
2,575
|
|
|
|
|
$
|
7,144
|
|
|
|
|
$
|
155,000
|
|
|
|
|
$
|
164,719
|
|
|
|
Trade name
|
|
|
2 – 10
|
|
|
|
|
822
|
|
|
|
|
|
934
|
|
|
|
|
|
47,000
|
|
|
|
|
|
48,756
|
|
|
|
Technology – Other Home Automation
|
|
|
5
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
65,152
|
|
|
|
|
|
65,152
|
|
|
|
Technology – Lighting
|
|
|
10
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
24,000
|
|
|
|
|
|
24,000
|
|
|
|
Technology – Speakers
|
|
|
15
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
6,000
|
|
|
|
|
|
6,000
|
|
|
|
Total Intangible Assets
|
|
|
|
|
|
|
$
|
3,397
|
|
|
|
|
$
|
8,078
|
|
|
|
|
$
|
297,152
|
|
|
|
|
$
|
308,627
|
|
|
Long-term liabilities assumed consisted primarily of warranty reserves and deferred revenue. The long-term warranty reserves are primarily based on historical failure rates, costs to repair or replace the product, and any necessary shipping costs, which is considered to approximate the fair value of the remaining obligation for the 2019 acquisitions.
Deferred revenue was valued using the bottom-up method, a derivative of the income approach, whereby the estimated costs required to fulfill the obligation plus an appropriate profit margin were discounted to fair value, resulting in a cumulative balance for the 2019 acquisitions of $4,971 in accrued liabilities and $3,123 in other liabilities.
The Company recognized $11,828 of transaction-related expenses, consisting primarily of advisory, legal, and other professional fees related to the 2019 acquisitions. These transaction-related expenses were incurred by and for the benefit of the Company, and were included in selling, general and administrative expenses in the consolidated statements of operations.
The operating results of C4, MRI and CPD have been included in the Company’s consolidated statements of operations and comprehensive loss since the respective acquisition dates. The following table shows the net sales and net income (loss) attributable to each acquired entity from the acquisition date until the end of the Company’s fiscal year ending December 27, 2019.
|
Acquired entity
|
|
|
Time Period
|
|
|
Net Sales
|
|
|
Net Income (Loss)
|
|
|
MRI
|
|
|
March 14, 2019 to December 27, 2019
|
|
|
|
$
|
26,854
|
|
|
|
|
$
|
825
|
|
|
|
CPD
|
|
|
July 17, 2019 to December 27, 2019
|
|
|
|
$
|
15,693
|
|
|
|
|
$
|
(300)
|
|
|
|
Control4
|
|
|
August 1, 2019 to December 27, 2019
|
|
|
|
$
|
108,377
|
|
|
|
|
$
|
(8,084)
|
|
|
Unaudited Pro Forma Information — The unaudited pro forma information below presents the consolidated results of operations for the fiscal year ending December 27, 2019, as if the acquisitions had occurred on the first day of the fiscal year (December 28, 2018). The adjustments reflected in the pro forma results relate to interest expense on the debt to fund the acquisitions, the amortization of acquired intangibles, adjustments for revenue recognition and the related tax effects of these adjustments.
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
|
|
|
|
2019
|
|
|
Net sales
|
|
|
|
$
|
763,783
|
|
|
|
Net loss
|
|
|
|
|
(69,377)
|
|
|
This information is presented for informational purposes only and does not necessarily represent what the combined company’s results of operations would have been if the acquisition had occurred as indicated or serve to project such results in future periods. The pro forma results do not include any anticipated synergies, cost savings or other expected benefits of an acquisition.
4.
Revenue and Geographic Information
Contract Balances — The Company invoices each order upon hardware shipment and recognizes revenue for each distinct performance obligation when transfer of control has occurred, which may extend over a period of three years. Amounts invoiced in advance of revenue recognition are recorded as deferred revenue on the consolidated balance sheets. Deferred revenue primarily relates to unspecified software updates and upgrades, hosting, technical support, marketing incentive programs, and subscription services. The following table represents the changes in deferred revenue:
|
|
Deferred revenue – December 28, 2018
|
|
|
|
$
|
9,292
|
|
|
|
|
Amounts billed, but not recognized
|
|
|
|
|
16,596
|
|
|
|
|
Recognition of revenue
|
|
|
|
|
(10,162)
|
|
|
|
|
Deferred revenue acquired
|
|
|
|
|
8,094
|
|
|
|
|
Deferred revenue – December 27, 2019
|
|
|
|
|
23,820
|
|
|
|
|
Amounts billed, but not recognized
|
|
|
|
|
28,366
|
|
|
|
|
Recognition of revenue
|
|
|
|
|
(21,720)
|
|
|
|
|
Deferred revenue – December 25, 2020
|
|
|
|
$
|
30,466
|
|
|
The Company recorded deferred revenue of $18,654 in accrued liabilities and $11,812 in other liabilities as of December 25, 2020. The Company recorded deferred revenue of $14,642 in accrued liabilities and $9,178 in other liabilities as of December 27, 2019.
Disaggregation of Revenue — The following table sets forth revenue from the United States and all international integrators and distributors for the years ended December 25, 2020 and December 27, 2019:
|
|
|
|
2020
|
|
|
2019
|
|
|
United States
|
|
|
|
$
|
719,429
|
|
|
|
|
$
|
528,634
|
|
|
|
International
|
|
|
|
|
94,684
|
|
|
|
|
|
62,208
|
|
|
|
Total
|
|
|
|
$
|
814,113
|
|
|
|
|
$
|
590,842
|
|
|
Additionally, the Company’s revenue includes amounts recognized over time and at a point in time, and are as follows for the years ended December 25, 2020 and December 27, 2019:
|
|
|
|
2020
|
|
|
2019
|
|
|
Products transferred at a point in time
|
|
|
|
$
|
792,393
|
|
|
|
|
$
|
580,623
|
|
|
|
Services transferred over time
|
|
|
|
|
21,720
|
|
|
|
|
|
10,219
|
|
|
|
Total
|
|
|
|
$
|
814,113
|
|
|
|
|
$
|
590,842
|
|
|
Disaggregation of Property and Equipment — Property and equipment, net, by geography as of December 25, 2020 and December 27, 2019 were as follows:
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
|
|
|
|
2020
|
|
|
2019
|
|
|
United States
|
|
|
|
$
|
15,550
|
|
|
|
|
$
|
16,827
|
|
|
|
International
|
|
|
|
|
4,658
|
|
|
|
|
|
3,282
|
|
|
|
Total
|
|
|
|
$
|
20,208
|
|
|
|
|
$
|
20,109
|
|
|
5.
Inventories, Net
Inventory is stated at the lower of cost or net realizable value, cost being determined under the moving-average method, first-in, first-out (FIFO) basis, or specific identification. Inventory costs include the net acquisition cost from the factory, the cost of transporting the product to the Company’s warehouses, and product assembly costs. Reserves for slow-moving and obsolete inventories are provided on historical experience, inventory aging, and product demand. The Company evaluates the adequacy of these reserves and makes adjustments to reserves, as required.
As of December 25, 2020, and December 27, 2019, the Company’s inventory consisted of the following:
|
|
|
|
2020
|
|
|
2019
|
|
|
Raw Materials
|
|
|
|
$
|
11,340
|
|
|
|
|
$
|
8,813
|
|
|
|
Work In Process
|
|
|
|
|
591
|
|
|
|
|
|
2,178
|
|
|
|
Finished Goods
|
|
|
|
|
155,618
|
|
|
|
|
|
160,943
|
|
|
|
Reserve For Obsolete and Slow Moving Inventory
|
|
|
|
|
(10,450)
|
|
|
|
|
|
(6,589)
|
|
|
|
Total Inventory
|
|
|
|
$
|
157,099
|
|
|
|
|
$
|
165,345
|
|
|
Changes in the Company’s reserve for obsolete and slow-moving inventory as of December 25, 2020 and December 27, 2019, consisted of the following:
|
|
Inventory Reserve – December 28, 2018
|
|
|
|
$
|
878
|
|
|
|
|
Valuation adjustment
|
|
|
|
|
3,740
|
|
|
|
|
Write-offs
|
|
|
|
|
(1,457)
|
|
|
|
|
Inventory reserves acquired
|
|
|
|
|
3,428
|
|
|
|
|
Inventory Reserve – December 27, 2019
|
|
|
|
|
6,589
|
|
|
|
|
Valuation adjustment
|
|
|
|
|
4,579
|
|
|
|
|
Write-offs
|
|
|
|
|
(718)
|
|
|
|
|
Inventory Reserve – December 25, 2020
|
|
|
|
$
|
10,450
|
|
|
6.
Property and Equipment, Net
Property and equipment, net, as of December 25, 2020 and December 27, 2019, consisted of the following:
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
|
|
|
|
2020
|
|
|
2019
|
|
|
Equipment
|
|
|
|
$
|
11,422
|
|
|
|
|
$
|
7,001
|
|
|
|
Computers and software
|
|
|
|
|
20,490
|
|
|
|
|
|
18,416
|
|
|
|
Furniture and fixtures
|
|
|
|
|
3,240
|
|
|
|
|
|
4,784
|
|
|
|
Leasehold improvements
|
|
|
|
|
8,673
|
|
|
|
|
|
5,519
|
|
|
|
Construction in progress
|
|
|
|
|
2,035
|
|
|
|
|
|
1,205
|
|
|
|
Total property and equipment
|
|
|
|
|
45,860
|
|
|
|
|
|
36,925
|
|
|
|
Less: Accumulated depreciation
|
|
|
|
|
(25,652)
|
|
|
|
|
|
(16,816)
|
|
|
|
Property and equipment, net
|
|
|
|
$
|
20,208
|
|
|
|
|
$
|
20,109
|
|
|
Total depreciation expense for the years ended December 25, 2020 and December 27, 2019, was $10,481 and $8,169, respectively.
7.
Goodwill and Other Intangible Assets, Net
Goodwill for the years ended December 25, 2020 and December 27, 2019, was $559,735. Goodwill increased by $287,527 during the year ended December 27, 2019 due to the 2019 acquisitions (see Note 3). There were no changes to goodwill during the year ended December 25, 2020.
As of December 25, 2020, and December 27, 2019, other intangible assets, net, consisted of the following:
|
2020
|
|
|
Estimated
Useful Life
|
|
|
Gross
Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Net Carrying
Amount
|
|
|
Customer relationships
|
|
|
5 – 25 years
|
|
|
|
$
|
494,333
|
|
|
|
|
$
|
(70,060)
|
|
|
|
|
$
|
424,273
|
|
|
|
Technology
|
|
|
5 – 15 years
|
|
|
|
|
95,078
|
|
|
|
|
|
(22,406)
|
|
|
|
|
|
72,672
|
|
|
|
Trade names – definite
|
|
|
2 – 10 years
|
|
|
|
|
54,360
|
|
|
|
|
|
(10,253)
|
|
|
|
|
|
44,107
|
|
|
|
Trade names – indefinite
|
|
|
indefinite
|
|
|
|
|
76,564
|
|
|
|
|
|
—
|
|
|
|
|
|
76,564
|
|
|
|
Total intangible assets
|
|
|
|
|
|
|
$
|
720,335
|
|
|
|
|
$
|
(102,719)
|
|
|
|
|
$
|
617,616
|
|
|
|
2019
|
|
|
Estimated
Useful Life
|
|
|
Gross
Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Net Carrying
Amount
|
|
|
Customer relationships
|
|
|
5 – 25 years
|
|
|
|
$
|
494,333
|
|
|
|
|
$
|
(44,930)
|
|
|
|
|
$
|
449,403
|
|
|
|
Technology
|
|
|
5 – 15 years
|
|
|
|
|
95,078
|
|
|
|
|
|
(6,589)
|
|
|
|
|
|
88,489
|
|
|
|
Trade names – definite
|
|
|
2 – 10 years
|
|
|
|
|
54,360
|
|
|
|
|
|
(3,692)
|
|
|
|
|
|
50,668
|
|
|
|
Trade names – indefinite
|
|
|
indefinite
|
|
|
|
|
76,564
|
|
|
|
|
|
—
|
|
|
|
|
|
76,564
|
|
|
|
Total intangible assets
|
|
|
|
|
|
|
$
|
720,335
|
|
|
|
|
$
|
(55,211)
|
|
|
|
|
$
|
665,124
|
|
|
Total amortization expense for intangible assets for the years ended December 25, 2020 and December 27, 2019, was $47,491 and $31,488, respectively. The weighted-average useful life remaining for amortizing definite lived intangible assets was approximately 16.0 years as of December 25, 2020.
As of December 25, 2020, the estimated amortization expense for intangible assets for the next five fiscal years and thereafter are as follows:
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
|
|
2021
|
|
|
|
$
|
47,274
|
|
|
|
|
2022
|
|
|
|
|
46,188
|
|
|
|
|
2023
|
|
|
|
|
45,049
|
|
|
|
|
2024
|
|
|
|
|
38,667
|
|
|
|
|
2025
|
|
|
|
|
31,075
|
|
|
|
|
Thereafter
|
|
|
|
|
332,799
|
|
|
|
|
Total
|
|
|
|
$
|
541,052
|
|
|
8.
Debt Agreements
On August 4, 2017, the Company’s wholly owned subsidiary, Wirepath LLC (the “Borrower”) entered into a credit agreement (the “Credit Agreement”), consisting of a $265,000 senior secured term loan (the “Initial Term Loan”) and a $50,000 senior secured revolving credit facility (the “Revolving Credit Facility”). The Initial Term Loan matures on August 4, 2024, and the Revolving Credit Facility matures on August 4, 2022, and are both collateralized by substantially all of the Company’s assets. Debt issuance costs of $9,696, consisting primarily of arrangement fees and professional fees, were capitalized in connection with the Initial Term Loan. Additionally, deferred debt issuance costs of $1,829 were capitalized in connection with the Revolving Credit Facility, consisting primarily of arrangement fees and discount.
On February 5, 2018, the Borrower repriced the Initial Term Loan facility pursuant to an amendment to reduce the margin under the Initial Term Loan by 75 basis points and reduce the margin under the Revolving Credit Facility by 75 basis points. On October 31, 2018, the Borrower repriced the Initial Term Loan facility pursuant to an incremental amendment to reduce the margin under the Initial Term Loan by 50 basis points, increased the aggregate amount of the Initial Term Loan to $292,355, and further reduced the margin under the Revolving Credit Facility by 50 basis points. The Company capitalized $1,054 and $889 of costs incurred with the February and October 2018 amendments, respectively, that will be amortized over the life of the debt. On August 1, 2019, the Borrower amended the Credit Agreement to borrow an additional $390,000 senior secured term loan (the “Incremental Term Loan” and, together with the Initial Term Loan, as amended, the “Term Loans”) and increased the commitments under the Revolving Credit Facility from $50,000 to $60,000. The Incremental Term Loan has the same maturity as the Initial Term Loan. Debt issuance costs of $20,198 incurred in connection with the 2019 amendment have been deferred and are being amortized over the life of the related debt. Debt issuance costs are amortized using a straight-line method over the period from the date of issuance or amendment through the maturity date, which the Company determined to approximate the effective interest method.
Borrowings under the Term Loans and the Revolving Credit Facility bear interest at a variable rate, at the Borrower’s option, of either (i) a eurodollar rate based on the London interbank offered rate (“LIBOR”) for a specific interest period plus an applicable margin, subject to a eurodollar rate floor of 0.00%, or (ii) an alternate base rate plus an applicable margin, subject to a base rate floor of 0.00%. Interest is payable quarterly for the Term Loans and the Revolving Credit Facility. The margins for the Initial Term Loan are fixed at 4.00% per annum for eurodollar rate loans and 3.00% per annum for base rate loans. The margins for the Incremental Term Loan are fixed at 4.75% per annum for eurodollar rate loans and 3.75% per annum for base rate loans. The margins for the Revolving Credit Facility range from 3.50% to 4.00% per annum for eurodollar rate loans and 2.50% to 3.00% per annum for base rate loans, depending on the applicable first lien secured leverage ratio. Unused commitments under the Revolving Credit Facility are subject to a 0.50% availability fee.
The LIBOR rate for the Initial Term Note and the Revolving Credit Facility is defined as LIBOR (0.22% as of December 25, 2020), plus the applicable margin (4.00% as of December 25, 2020), amounting to an effective rate of 4.22% as of December 25, 2020. The LIBOR rate for the Incremental Term Note is
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
defined as LIBOR (0.22% as of December 25, 2020), plus the applicable margin (4.75% as of December 25, 2020), amounting to an effective rate of 4.97% as of December 25, 2020.
On December 31, 2018, the Company purchased an interest rate cap to guard against unexpected increases in the LIBOR to which the Company’s debt instruments are tied. Pursuant to the agreements, the Company has capped LIBOR at 3.55% with respect to the aggregate notional amount of $189,600, decreasing by scheduled principal payments on the Initial Term Loan through the expiration of the interest rate cap agreements in December 2021. In the event LIBOR exceeds 3.55%, the Company will pay interest at the capped rate plus the applicable margin. In the event LIBOR is less than 3.55%, the Company will pay interest at the prevailing LIBOR rate plus the applicable margin. The asset is recorded at fair value, see Note 9.
The Term Loans amortize in fixed equal quarterly installments in an amount equal to 1.0% per annum of the total aggregate principal amount thereof immediately after borrowing, with the balance due at maturity. The Borrower may voluntarily prepay loans or reduce commitments under the Credit Agreement, in whole or in part, subject to minimum amounts, with prior notice but without premium or penalty (subject to customary exceptions). The Company may also be required to make additional payments under the financing agreement equal to a percentage of the Company’s annual excess cash flows or net proceeds from any non-ordinary course asset sales or certain debt issuances, if any. In accordance with these provisions, the Company has an obligation to make a mandatory excess cash flow payment offer related to the term loans of $14,325 to the lender. The lender has the option to decline the prepayment. The entire amount of the expected payment has been classified within current maturities of long-term debt on the consolidated balance sheet as of December 25, 2020.
The Borrower’s obligations under the Credit Agreement are guaranteed by its direct parent company, its wholly owned subsidiary Crackle Purchaser LLC (formerly known as Crackle Purchaser Corp.) and each of the Borrower’s current and future direct and indirect subsidiaries other than (i) foreign subsidiaries, (ii) unrestricted subsidiaries, (iii) non-wholly owned subsidiaries, (iv) immaterial subsidiaries and (v) certain holding companies of foreign subsidiaries, and are secured by a first lien on substantially all of their assets, including the capital stock of subsidiaries (subject to certain exceptions).
As of December 25, 2020, the Company had no borrowings under the Revolving Credit Facility and $4,894 of outstanding letters of credit. The amount available under the Revolving Credit Facility was $55,106 as of December 25, 2020.
As of December 27, 2019, the Company had $5,000 in borrowings under the Revolving Credit Facility and additional $2,200 of outstanding letters of credit. The amount available under the Revolving Credit Facility was $52,800 as of December 27, 2019.
As of December 25, 2020, the future scheduled maturities of the above notes payable are as follows:
|
|
2021
|
|
|
|
$
|
21,149
|
|
|
|
|
2022
|
|
|
|
|
6,824
|
|
|
|
|
2023
|
|
|
|
|
6,824
|
|
|
|
|
2024
|
|
|
|
|
637,811
|
|
|
|
|
Total future maturities of long-term debt
|
|
|
|
|
672,608
|
|
|
|
|
Unamortized debt issuance costs
|
|
|
|
|
(20,595)
|
|
|
|
|
Total indebtedness
|
|
|
|
|
652,013
|
|
|
|
|
Less: Current maturities of long-term debt
|
|
|
|
|
21,149
|
|
|
|
|
Long-term debt
|
|
|
|
$
|
630,864
|
|
|
Unamortized costs related to issuance of the Term Loans were $20,595 and $26,330 as of December 25, 2020 and December 27, 2019 and are presented as a direct deduction from the carrying amount of long-term
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
debt. Unamortized costs related to the issuance of the Revolving Credit Facility were $583 and $948 as of December 25, 2020 and December 27, 2019 and are included in other assets in the consolidated balance sheets. The costs related to debt issuances are amortized to interest expense over the life of the related debt. As of December 25, 2020, the future amortization of debt issuance costs is as follows:
|
|
2021
|
|
|
|
$
|
6,101
|
|
|
|
|
2022
|
|
|
|
|
5,951
|
|
|
|
|
2023
|
|
|
|
|
5,735
|
|
|
|
|
2024
|
|
|
|
|
3,391
|
|
|
|
|
Total
|
|
|
|
$
|
21,178
|
|
|
Interest expense as of December 25, 2020 and December 27, 2019 consisted of the following:
|
|
|
|
2020
|
|
|
2019
|
|
|
Interest expense from Revolving Credit Facility
|
|
|
|
$
|
1,632
|
|
|
|
|
$
|
1,146
|
|
|
|
Interest expense from Initial Term Note
|
|
|
|
|
14,841
|
|
|
|
|
|
18,889
|
|
|
|
Interest expense from Incremental Term Note
|
|
|
|
|
22,935
|
|
|
|
|
|
11,086
|
|
|
|
Interest expense from Rate Cap
|
|
|
|
|
20
|
|
|
|
|
|
228
|
|
|
|
Amortization of debt issuance costs
|
|
|
|
|
6,101
|
|
|
|
|
|
3,895
|
|
|
|
Total Interest expense
|
|
|
|
$
|
45,529
|
|
|
|
|
$
|
35,244
|
|
|
Debt Covenants and Default Provisions — The Credit Agreement contains various customary affirmative and negative covenants, including, but not limited to, restrictions on the Borrower and its restricted subsidiaries’ ability to incur or guarantee indebtedness; grant or incur liens or security interests on assets; merge and consolidate with other companies; sell or otherwise dispose of assets; make acquisitions, loans or investments; pay dividends or make other distributions in respect of, or repurchase or redeem capital stock; prepay, redeem or repurchase certain subordinated debt; enter into certain transactions with affiliates; enter into agreements which would restrict certain subsidiaries’ abilities to pay dividends; amend organizational documents or change the Borrower’s line of business or fiscal year or quarters. The financial covenants the Company is measured against are consolidated earnings before interest, taxes, depreciation and amortization, adjusted for allowable add-backs specified in the Credit Agreement (“consolidated EBITDA”), and associated ratios, as defined in the Credit Agreement. The Borrower was in compliance with such covenants as of December 25, 2020 and December 27, 2019.
In addition, the Revolving Credit Facility is subject to a first lien secured leverage ratio of 8.15 to 1:00, tested quarterly if, and only if, the aggregate principal amount from the revolving facility loans, letters of credit (to the extent not cash collateralized or backstopped or, in the aggregate, not in excess of $5,000) and swingline loans outstanding and/or issued, as applicable, exceeds 35.0% of the total amount of the Revolving Credit Facility commitments.
The Credit Agreement provides that upon the occurrence of certain events of default, the Borrower’s obligations thereunder may be accelerated, and the lending commitments terminated. Such events of default include payment defaults to the lenders, material inaccuracies of representations and warranties, covenant defaults, defaults on other material indebtedness, voluntary and involuntary bankruptcy proceedings, material monetary judgments, change of control, material ERISA/pension plan events and other customary events of default. No such events had occurred as of December 25, 2020.
9.
Fair Value Measurement
Fair Value of Financial Instruments — The fair values and related carrying values of financial instruments that are not required to be remeasured at fair value on the consolidated statements of operations were as follows:
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
|
|
|
|
December 25, 2020
|
|
|
December 27, 2019
|
|
|
|
|
|
Carrying
Amount
|
|
|
Fair Value
|
|
|
Carrying
Amount
|
|
|
Fair Value
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes receivable, net
|
|
|
|
$
|
5,115
|
|
|
|
|
$
|
5,494
|
|
|
|
|
$
|
4,740
|
|
|
|
|
$
|
4,905
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Initial Term Loan
|
|
|
|
|
286,508
|
|
|
|
|
|
267,169
|
|
|
|
|
|
289,431
|
|
|
|
|
|
249,635
|
|
|
|
Incremental Term Loan
|
|
|
|
|
386,100
|
|
|
|
|
|
384,652
|
|
|
|
|
|
390,000
|
|
|
|
|
|
380,250
|
|
|
The fair value of notes receivable are estimated using a discounted cash flow analysis using interest rates currently offered for loans with similar credit quality which represent Level 2 inputs. The fair value of long-term debt was established using current market rates for similar instruments traded in secondary markets representing Level 2 inputs. The fair value of the Revolving Credit Facility approximates carrying value as the related interest rates approximate the Company’s incremental borrowing rate for similar obligations.
Assets and Liabilities that are Measured at Fair Value on a Recurring Basis — The fair value of the interest rate cap is determined by using widely accepted valuation techniques and based on its maturity, observable market-based inputs including interest rate curves and is considered to be a Level 2 measurement. The fair value of the interest rate cap was $262 as of December 27, 2019 and had no value as of December 25, 2020.
The Company utilizes the OPM in order to determine the fair value of the CVRs. Any future increase in the fair value of the CVR obligations, based on an increased likelihood that the underlying milestones will be achieved, and the associated payment or payments will, therefore, become due and payable, will result in a charge to selling, general and administrative expenses in the period in which the increase is determined. Similarly, any future decrease in the fair value of the CVR obligations will result in a reduction in selling, general and administrative expenses. Accordingly, the CVRs are classified as Level 3.
|
|
|
|
Fair value at
December 25,
2020
|
|
|
Valuation
Technique
|
|
|
Unobservable
Input
|
|
|
Volatility
|
|
|
Contingent Value Rights
|
|
|
|
$
|
4,000
|
|
|
|
|
|
OPM
|
|
|
|
|
|
Volatility
|
|
|
|
|
|
51%
|
|
|
Changes in the CVRs for the years ended December 25, 2020 and December 27, 2019 were as follows:
|
|
CVR fair value – December 28, 2018
|
|
|
|
$
|
2,886
|
|
|
|
|
Fair value adjustments
|
|
|
|
|
314
|
|
|
|
|
CVR fair value – December 27, 2019
|
|
|
|
|
3,200
|
|
|
|
|
Fair value adjustments
|
|
|
|
|
800
|
|
|
|
|
CVR fair value – December 25, 2020
|
|
|
|
$
|
4,000
|
|
|
CVR liabilities are classified as other liabilities in the accompanying consolidated balance sheets. Adjustments to the fair value of CVR liabilities are included in selling, general and administrative expenses in the consolidated statements of operations.
There were no transfers into or out of level 3 investments during the years ended December 25, 2020 and December 27, 2019.
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
10. Accrued Liabilities
Accrued liabilities as of December 25, 2020 and December 27, 2019, consisted of the following:
|
|
|
|
2020
|
|
|
2019
|
|
|
Payroll, vacation, and bonus accruals
|
|
|
|
$
|
29,700
|
|
|
|
|
$
|
18,641
|
|
|
|
Deferred revenue
|
|
|
|
|
18,654
|
|
|
|
|
|
14,642
|
|
|
|
Warranty reserve
|
|
|
|
|
11,767
|
|
|
|
|
|
11,686
|
|
|
|
Interest payable
|
|
|
|
|
7,576
|
|
|
|
|
|
10,992
|
|
|
|
Customer rebate program
|
|
|
|
|
2,140
|
|
|
|
|
|
1,767
|
|
|
|
IBNR
|
|
|
|
|
1,215
|
|
|
|
|
|
425
|
|
|
|
Rent accrual
|
|
|
|
|
965
|
|
|
|
|
|
1,120
|
|
|
|
Outbound shipping
|
|
|
|
|
648
|
|
|
|
|
|
421
|
|
|
|
Deferred purchase payment
|
|
|
|
|
500
|
|
|
|
|
|
3,346
|
|
|
|
Other accrued liabilities
|
|
|
|
|
7,493
|
|
|
|
|
|
6,534
|
|
|
|
Total accrued liabilities
|
|
|
|
$
|
80,658
|
|
|
|
|
$
|
69,574
|
|
|
11. Retirement Plan
The Company has a legacy 401(k) plan that covers eligible employees as defined by the plan agreement. As of January 1, 2020, the Company matches 100% of employee contributions to the plan, up to 3% of the employees’ total compensation, and 50% of employee contributions to the plan, up to 6% of the employees’ total compensation. Prior to January 1, 2020, the Company matched 50% of employee contributions to the plan, up to 3% of the employees’ total compensation. As a result of the Control4 acquisition, transitioning employees remained on their legacy 401(k) benefit plan through December 31, 2019. Under this plan, the Company matched 100% of the first 1% of employee contributions and 70% of the next 5% of employee contributions, which vested immediately.
Company contributions to the plan, net of forfeitures, were $3,727 and $2,069 for the years ended December 25, 2020 and December 27, 2019, respectively.
12. Equity Agreements and Incentive Equity Plans
Parent Incentive Plan — In August 2017, the Parent entered into an amended and restated limited partnership agreement and unitholders’ agreement. These agreements, among other things, established the distribution rights and allocation of profits and losses associated with the membership units of the Parent.
In October 2017, the Parent approved the 2017 Incentive Plan, which established the terms and provided for grants of certain incentive units to employees, officers, directors, consultants, and advisors of the Company containing service-based and/or market-based vesting criteria. Class B-1 Incentive Units (“B-1 Units”) become vested in installments over a five-year period, subject to the grantee’s continued employment or service. Class B-2 Incentive Units (“B-2 Units”) have both service-based and market-based vesting conditions, as they are subject to the same service conditions as the B-1 Units, but also require the achievement of a specified return hurdle in order to vest.
The fair value of equity-classified awards is determined on the date of grant and is not remeasured. All B-1 Units and B-2 Units are classified as equity awards. For B-2 Units, the determination of the fair value of these awards takes into consideration the likelihood of achievement of the market condition. The fair value of incentive units granted during the years ended December 25, 2020 and December 27, 2019 was estimated using an OPM with the following key assumptions:
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
|
|
|
|
2020
|
|
|
2019
|
|
|
Expected holding period
|
|
|
4 years
|
|
|
5 years
|
|
|
Risk-free rate of return
|
|
|
0.20 – 0.30%
|
|
|
1.76%
|
|
|
Expected dividend yield
|
|
|
—%
|
|
|
—%
|
|
|
Expected volatility
|
|
|
47 – 51%
|
|
|
30%
|
|
|
Discount for lack of marketability
|
|
|
20 – 25%
|
|
|
20%
|
|
The Company estimated a discount for lack of marketability (“DLOM”) using a put option model. The DLOM reflects the lower value placed on securities that are not freely transferable, as compared to those that trade frequently in established markets.
The Company recognizes compensation expense for all share-based awards granted on a straight-line basis over the requisite service periods of the awards, which is equivalent to the service-based vesting term. For the B-2 Units, compensation expense is recognized if the requisite service is rendered, regardless of whether the market condition is satisfied.
Incentive unit activity for the years ended December 25, 2020 and December 27, 2019 was as follows:
|
|
|
|
B-1 Incentive Units
|
|
|
B-2 Incentive Units
|
|
|
|
|
|
Number of
Units
(in 000’s)
|
|
|
Weighted-
Average
Grant-Date
Fair Value
|
|
|
Number of
Units
(in 000’s)
|
|
|
Weighted-
Average
Grant-Date
Fair Value
|
|
|
Outstanding units-December 28, 2018
|
|
|
|
|
43,088
|
|
|
|
|
$
|
0.29
|
|
|
|
|
|
22,542
|
|
|
|
|
$
|
0.04
|
|
|
|
Units granted in 2019
|
|
|
|
|
32,652
|
|
|
|
|
|
0.40
|
|
|
|
|
|
2,290
|
|
|
|
|
|
0.21
|
|
|
|
Units forfeited in 2019
|
|
|
|
|
(4,542)
|
|
|
|
|
|
0.28
|
|
|
|
|
|
(4,327)
|
|
|
|
|
|
0.03
|
|
|
|
Units repurchased in 2019
|
|
|
|
|
(46)
|
|
|
|
|
|
0.27
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Outstanding units-December 27, 2019
|
|
|
|
|
71,152
|
|
|
|
|
|
0.34
|
|
|
|
|
|
20,505
|
|
|
|
|
|
0.05
|
|
|
|
Units granted in 2020
|
|
|
|
|
7,509
|
|
|
|
|
|
0.42
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Units forfeited in 2020
|
|
|
|
|
(7,922)
|
|
|
|
|
|
0.37
|
|
|
|
|
|
(683)
|
|
|
|
|
|
0.03
|
|
|
|
Units repurchased in 2020
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Outstanding units-December 25,2020
|
|
|
|
|
70,739
|
|
|
|
|
$
|
0.34
|
|
|
|
|
|
19,822
|
|
|
|
|
$
|
0.06
|
|
|
|
Vested units-December 25,2020
|
|
|
|
|
28,718
|
|
|
|
|
$
|
0.31
|
|
|
|
|
|
—
|
|
|
|
|
$
|
—
|
|
|
|
Nonvested units-December 25,2020
|
|
|
|
|
42,021
|
|
|
|
|
$
|
0.37
|
|
|
|
|
|
19,822
|
|
|
|
|
$
|
0.06
|
|
|
During the year ended December 25, 2020, 12,578 B-1 Units vested with a total grant-date fair value of $4,260. During the year ended December 27, 2019, 8,588 B-1 Units with a total grant-date fair value of $2,546 vested.
The Company recognized approximately $4,284 and $3,673 of compensation expense within selling, general and administrative expenses in the accompanying consolidated statements of operations during the years ended December 25, 2020 and December 27, 2019, respectively.
As of December 25, 2020, there was approximately $14,644 of unrecognized compensation expense related to outstanding incentive units, which is expected to be recognized subsequent to December 25, 2020, over a weighted-average period of approximately three years.
Control4 Equity Awards — In connection with the Control4 Acquisition, the Company agreed to a settlement of Control4 equity awards that were outstanding immediately prior to the acquisition date, consisting of stock options (“C4 Stock Options”) and restricted stock units (“C4 RSUs” and, together with
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
C4 Stock Options, “C4 Equity Awards”). C4 Stock Options that were fully vested and exercisable prior to the acquisition were cancelled, and each holder was entitled to receive an amount in cash equal to the product of the excess, if any, of the Merger Consideration (defined as $23.91 per share) over the exercise price per share of the C4 Stock Option, multiplied by the total number of shares subject to the C4 Stock Options. C4 RSUs that were fully vested prior to the acquisition were cancelled, and each holder was entitled to receive an amount in cash for each unit equal to the Merger Consideration. C4 Equity Awards that were not vested immediately prior to the acquisition were cancelled, and each holder was entitled to receive similar consideration as the respective vested awards, subject to the vesting conditions of the original awards, but modified to include only service-based vesting criteria of up to three years.
As of the acquisition date, 2,998 shares of C4 Equity Awards were cancelled and converted into rights to receive cash payments (the “Replacement Awards”). The Company recognized $16,719 as consideration transferred in the business combination, representing the amount of cash consideration earned by C4 Equity Award holders as of the acquisition date. This amount was recorded within accrued liabilities and other current liabilities upon consummation of the acquisition.
Following the acquisition, 1,708 and 843 Replacement Award units were redeemed in cash, and 25 and 179 Replacement Award units were forfeited during the years ended December 25, 2020 and December 27, 2019, respectively. As of December 25, 2020, 243 Replacement Award units remain outstanding, consisting of 27 vested and 216 unvested units.
For the Replacement Awards that were not vested as of the acquisition date, compensation expense is recognized on a straight-line basis over the period the employee performs services during the remaining vesting period. The Company recognized $7,353 and $10,790 of compensation expense relating to the Replacement Awards within selling, general and administrative expenses in the accompanying consolidated statement of operations during the years ended December 25, 2020 and December 27, 2019.
There was approximately $5,467 of unrecognized compensation expense related to the nonvested Replacement Awards, which is expected to be recognized subsequent to December 25, 2020, over a weighted-average period of approximately 1 year. Total unrecognized compensation expense will be adjusted for future forfeitures.
13. Income Taxes
Loss before income taxes, excluding loss for noncontrolling interests, consists of the following:
|
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Domestic
|
|
|
|
$
|
(26,998)
|
|
|
|
|
$
|
(43,760)
|
|
|
|
Foreign
|
|
|
|
|
(2,237)
|
|
|
|
|
|
(3,961)
|
|
|
|
Total
|
|
|
|
$
|
(29,235)
|
|
|
|
|
$
|
(47,721)
|
|
|
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
The components of income tax benefit for the years ended December 25, 2020 and December 27, 2019, were as follows:
|
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Current
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
|
$
|
—
|
|
|
|
|
$
|
—
|
|
|
|
State
|
|
|
|
|
96
|
|
|
|
|
|
202
|
|
|
|
Foreign
|
|
|
|
|
976
|
|
|
|
|
|
213
|
|
|
|
Total
|
|
|
|
|
1,072
|
|
|
|
|
|
415
|
|
|
|
Deferred
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
|
|
(8,778)
|
|
|
|
|
|
(12,852)
|
|
|
|
State
|
|
|
|
|
3,756
|
|
|
|
|
|
(822)
|
|
|
|
Foreign
|
|
|
|
|
(401)
|
|
|
|
|
|
(98)
|
|
|
|
Total
|
|
|
|
|
(5,423)
|
|
|
|
|
|
(13,772)
|
|
|
|
Income tax benefit
|
|
|
|
$
|
(4,351)
|
|
|
|
|
$
|
(13,357)
|
|
|
The tax effects of temporary differences and carryforwards that gave rise to deferred tax assets and liabilities as of December 25, 2020 and December 27, 2019, are as follows:
|
|
|
|
2020
|
|
|
2019
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating loss
|
|
|
|
$
|
24,766
|
|
|
|
|
$
|
22,017
|
|
|
|
Interest carryforward
|
|
|
|
|
6,549
|
|
|
|
|
|
8,294
|
|
|
|
Accrued liabilities and reserves
|
|
|
|
|
11,380
|
|
|
|
|
|
11,038
|
|
|
|
Uniform capitalization
|
|
|
|
|
1,231
|
|
|
|
|
|
2,761
|
|
|
|
Capital loss carryforward
|
|
|
|
|
8,719
|
|
|
|
|
|
—
|
|
|
|
R&D Credits
|
|
|
|
|
17,072
|
|
|
|
|
|
12,823
|
|
|
|
Deferred revenue
|
|
|
|
|
3,022
|
|
|
|
|
|
2,389
|
|
|
|
Depreciable property
|
|
|
|
|
1,917
|
|
|
|
|
|
820
|
|
|
|
Other
|
|
|
|
|
522
|
|
|
|
|
|
694
|
|
|
|
Total deferred tax assets
|
|
|
|
|
75,178
|
|
|
|
|
|
60,836
|
|
|
|
Valuation allowance
|
|
|
|
|
(15,658)
|
|
|
|
|
|
(3,251)
|
|
|
|
Total deferred tax assets, net of valuation allowance
|
|
|
|
|
59,520
|
|
|
|
|
|
57,585
|
|
|
|
Deferred tax liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of intangible assets
|
|
|
|
|
(103,381)
|
|
|
|
|
|
(109,470)
|
|
|
|
Amortization of goodwill
|
|
|
|
|
(10,035)
|
|
|
|
|
|
(6,799)
|
|
|
|
Transaction costs
|
|
|
|
|
(449)
|
|
|
|
|
|
(1,086)
|
|
|
|
Total deferred tax liabilities
|
|
|
|
|
(113,865)
|
|
|
|
|
|
(117,355)
|
|
|
|
Net deferred tax liabilities
|
|
|
|
$
|
(54,345)
|
|
|
|
|
$
|
(59,770)
|
|
|
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
The components of the Company’s net deferred tax liabilities as of December 25, 2020 and December 27, 2019, are as follows:
|
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Domestic deferred tax liabilities
|
|
|
|
$
|
(55,518)
|
|
|
|
|
$
|
(60,542)
|
|
|
|
Foreign deferred tax assets
|
|
|
|
|
1,173
|
|
|
|
|
|
772
|
|
|
|
Net deferred tax liabilities
|
|
|
|
$
|
(54,345)
|
|
|
|
|
$
|
(59,770)
|
|
|
The Company’s deferred tax assets related to net operating losses and credits are shown net of their related unrecognized tax benefit.
Significant judgment is required in determining the Company’s provision for income taxes and recording valuation allowances against deferred tax assets. In evaluating the ability to recover its deferred tax assets, in full or in part, the Company considers all available positive and negative evidence, including past operating results, forecast of future market growth, forecasted earnings, future taxable income, and prudent and feasible tax planning strategies.
Given its overall deferred tax liability position, the Company expects to fully utilize its U.S. federal and state net operating loss carryforward balances with an exception of a portion of the Utah state net operating loss. However, the Company expects a small portion of their U.S. federal research and development credits to expire unused in the next few years along with the majority of their remaining state research and equipment credits. A partial valuation allowance has been established for the portion of credits expected to expire unused. The Company will continue to maintain a full valuation allowance against the foreign tax credit carryovers. In 2020, the Company sold the stock of their fully owned subsidiary, Autonomic Controls, Inc., for $1,104, incurring a capital loss of $35,039 for tax purposes. The Company has determined the capital loss will not be utilized due to insufficient capital gains. A full valuation allowance has been recorded against this asset for both federal and state.
The Company determined, based on the available evidence, that it is uncertain whether certain of its jurisdictions will generate sufficient future taxable income and of the correct character to recognize certain of these deferred tax assets. As a result, the Company’s deferred tax asset for net operating losses, capital loss carryforwards and credits reflect a valuation allowance of $15,658 and $3,251 as of December 25, 2020 and December 27, 2019, respectively.
Net operating loss and tax credit carryforwards as of December 25, 2020 are as follows:
|
|
|
|
Amount
|
|
|
Expiration
Years
|
|
|
Net operating losses, federal
|
|
|
|
$
|
68,274
|
|
|
|
2027 – 2038
|
|
|
Net operating losses, federal
|
|
|
|
|
18,726
|
|
|
|
Indefinite
|
|
|
Net operating losses, state
|
|
|
|
|
78,197
|
|
|
|
2021 – 2039
|
|
|
Net operating losses, state
|
|
|
|
|
2,282
|
|
|
|
Indefinite
|
|
|
Tax credit carryforwards, federal
|
|
|
|
|
22,251
|
|
|
|
2023 – 2040
|
|
|
Tax credit carryforwards, state
|
|
|
|
|
2,366
|
|
|
|
2021 – 2030
|
|
|
Net operating losses, foreign
|
|
|
|
|
18,569
|
|
|
|
2022 – 2029
|
|
|
Capital loss carryforwards, federal
|
|
|
|
|
35,039
|
|
|
|
2025
|
|
|
Capital loss carryforwards, state
|
|
|
|
|
22,640
|
|
|
|
2025
|
|
The Company has performed a Section 382 analysis related to the ownership change that occurred when the Company acquired Control4. While an annual limitation does exist related to the net operating
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
losses and credits carried forward from Control4, the Company does not anticipate that this limitation will cause any net operating losses and credits to expire before their utilization. U.S. Federal net operating losses incurred after 2017 are subject to an 80% limitation on taxable income.
The Company recorded gross unrecognized tax (expense) benefits of $(187) and $7,234 during the years ended December 25, 2020 and December 27, 2019, respectively. During the next 12 months, a federal statute of limitation related to uncertain tax positions will lapse, resulting in a reduction in unrecognized tax benefit and an expense of $76.
The Company’s treatment of interest and penalties related to the resolution of uncertain tax positions is to report them as a component of income tax expense. However, the Company’s current unrecognized tax benefits are presented net with their related deferred tax assets, therefore, no interest and penalties have been included in the Company’s income tax expense for years ended December 25, 2020 and December 27, 2019.
|
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balances, beginning
|
|
|
|
$
|
8,281
|
|
|
|
|
$
|
1,047
|
|
|
|
Additions for tax position of the current year
|
|
|
|
|
538
|
|
|
|
|
|
7,234
|
|
|
|
Reduction for tax positions of prior years for:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes in judgement
|
|
|
|
|
(670)
|
|
|
|
|
|
—
|
|
|
|
Lapses of applicable statutes of limitations
|
|
|
|
|
(55)
|
|
|
|
|
|
—
|
|
|
|
Balances, ending
|
|
|
|
$
|
8,094
|
|
|
|
|
$
|
8,281
|
|
|
The Company files income tax returns in the United States, including various state and local jurisdictions. The Company’s subsidiaries file income tax returns in the United Kingdom, Australia, China, Germany, India, New Zealand, Switzerland, and Serbia. The Company is subject to federal income tax as well as income tax of multiple state and foreign jurisdictions. The Company is no longer subject to income tax examinations for the following jurisdictions and years: federal, for years before 2017; state and local, for years before 2016; or foreign, for years before 2015. However, federal net operating loss and credit carryforwards from all years are subject to examination and adjustments for at least three years following the year in which the attributes are used.
Starting December 27, 2019, and forward, the Company’s position is that its overseas subsidiaries will not invest undistributed earnings indefinitely. Future unremitted earnings when distributed are expected to be either distributions of GILTI or Sub F — previously taxed income or eligible for 100% dividends received deduction. The withholding on any unremitted earnings and related state income taxes on such earnings are not considered material. Therefore, the Company has not provided deferred U.S. income taxes from non-U.S. subsidiaries.
The reconciliation of the Company’s effective income tax rate with the statutory rate is as follows:
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
|
|
|
|
December 25,
2020
|
|
|
December 27,
2019
|
|
|
Fiscal Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal income tax rate
|
|
|
|
|
21.00%
|
|
|
|
|
|
21.00%
|
|
|
|
State income taxes
|
|
|
|
|
1.57
|
|
|
|
|
|
1.60
|
|
|
|
Foreign income taxes
|
|
|
|
|
1.03
|
|
|
|
|
|
0.23
|
|
|
|
Deferred rate change
|
|
|
|
|
(6.00)
|
|
|
|
|
|
(0.25)
|
|
|
|
Foreign tax rate differences
|
|
|
|
|
(1.31)
|
|
|
|
|
|
(0.03)
|
|
|
|
Autonomic sale (Tax)
|
|
|
|
|
29.82
|
|
|
|
|
|
0.00
|
|
|
|
Incentive stock compensation
|
|
|
|
|
(3.08)
|
|
|
|
|
|
(1.64)
|
|
|
|
Research and development tax credits
|
|
|
|
|
14.37
|
|
|
|
|
|
26.21
|
|
|
|
Valuation allowance
|
|
|
|
|
(41.61)
|
|
|
|
|
|
(2.03)
|
|
|
|
Changes in uncertain tax positions
|
|
|
|
|
0.64
|
|
|
|
|
|
(15.80)
|
|
|
|
Other items, net
|
|
|
|
|
(1.55)
|
|
|
|
|
|
(0.94)
|
|
|
|
Effective income tax rate
|
|
|
|
|
14.88%
|
|
|
|
|
|
28.35%
|
|
|
Due to pretax losses in the years ended December 25, 2020 and December 27, 2019, the effective rate items listed above with negative signs represent increases to income tax expense and positive amounts represent decreases to income tax expense.
In March 2021, the U.S. Internal Revenue Service (“IRS”) began an examination of the Company’s 2018 U.S. federal income tax return. Although this examination is part of a routine and recurring cycle, the Company cannot predict the final outcome or expected conclusion date of the audit.
14.
Commitments and Contingencies
Legal Proceedings — During the normal course of business, the Company is occasionally involved with various claims and litigation. Reserves are established in connection with such matters when a loss is probable, and the amount of such loss can be reasonably estimated. As of December 25, 2020, and December 27, 2019, no material reserves were recorded. The determination of probability and the estimation of the actual amount of any such loss are inherently unpredictable, and it is therefore possible that the eventual outcome of such claims and litigation could exceed the estimated reserves, if any. However, the Company does not expect the outcome of the matters currently pending will have a material adverse effect on the consolidated financial statements.
Lease Commitments — The Company leases offices, warehouse space, and distribution centers. These leases are classified as operating leases with various expiration dates through July 2028. In addition to base rent, the Company is obligated to reimburse certain common area maintenance costs required to operate the facilities. Substantially all the leases include renewal options with varying terms. The Company recognizes rental expense and amortizes tenant improvement allowances on a straight-line basis over the stated lease term, including renewal periods if reasonably assured. Total rental expense for the years ended December 25, 2020 and December 27, 2019, was approximately $10,909 and $6,388, respectively.
Snap One Holdings Corp. and Subsidiaries
Notes to the Consolidated Financial Statements
(in thousands, except share and per share amounts)
As of December 25, 2020, future minimum lease payments under non-cancelable lease commitments for the next five fiscal years and thereafter were as follows:
|
|
2021
|
|
|
|
$
|
11,400
|
|
|
|
|
2022
|
|
|
|
|
8,147
|
|
|
|
|
2023
|
|
|
|
|
6,895
|
|
|
|
|
2024
|
|
|
|
|
6,175
|
|
|
|
|
2025
|
|
|
|
|
4,761
|
|
|
|
|
Thereafter
|
|
|
|
|
4,620
|
|
|
|
|
Total future minimum lease payments
|
|
|
|
$
|
41,998
|
|
|
15. Stockholders’ Equity
Common Stock — Holders of voting common stock are entitled to one vote per share and to receive dividends. The Company had noncontrolling interests of $316 and $99 as of December 25, 2020 and December 27, 2019, respectively, related to a joint venture formed prior to 2018.
Changes in noncontrolling interests each period include net income attributable to noncontrolling interests and cash contributions by minority partners to the Company’s consolidated subsidiaries. Cash contributions by minority partners were $561 and $132 for the years ended December 25, 2020 or December 27, 2019, respectively.
16. Loss Per Share
Basic loss per share represents net loss divided by the weighted-average shares outstanding. Diluted loss per share is the same as basic income or loss per share, as the Company had no potentially dilutive securities during either of the years ended December 25, 2020 or December 27, 2019. The following table presents the calculations of basic and diluted loss per share for the years ended:
|
|
|
|
2020
|
|
|
2019
|
|
|
Net Loss attributable to Company
|
|
|
|
$
|
(24,884)
|
|
|
|
|
$
|
(34,364)
|
|
|
|
Weighted-average shares outstanding-basic and diluted
|
|
|
|
|
392,431
|
|
|
|
|
|
387,353
|
|
|
|
Loss per share-basic and diluted
|
|
|
|
|
(63.41)
|
|
|
|
|
|
(88.72)
|
|
|
17.
Related Parties
The Company received no capital contributions from Parent during the year ended December 25, 2020 and $254,205 during the year ended December 27, 2019. There were no other related party transactions to report.
18.
Subsequent Events
In preparing its consolidated financial statements, the Company has evaluated subsequent events through April 19, 2021, which is the date the consolidated financial statements were available to be issued. The Company determined that no subsequent events have occurred that would require recognition in the consolidated financial statements or disclosure in the notes to consolidated financial statements.
******
Schedule I — Registrant’s Condensed Financial Statements
(Dollar amounts in thousands)
SNAP ONE HOLDINGS CORP. (PARENT COMPANY ONLY)
STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
|
|
|
|
2020
|
|
|
2019
|
|
|
Net loss from unconsolidated entities
|
|
|
|
$
|
(24,884)
|
|
|
|
|
$
|
(34,364)
|
|
|
|
Other comprehensive loss from unconsolidated entities
|
|
|
|
|
795
|
|
|
|
|
|
(39)
|
|
|
|
Total comprehensive loss
|
|
|
|
$
|
(24,089)
|
|
|
|
|
$
|
(34,403)
|
|
|
Schedule I — Registrant’s Condensed Financial Statements
(Dollar amounts in thousands)
SNAP ONE HOLDINGS CORP. (PARENT COMPANY ONLY)
BALANCE SHEETS
|
|
|
|
2020
|
|
|
2019
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investments in unconsolidated subsidiary
|
|
|
|
$
|
617,423
|
|
|
|
|
$
|
636,828
|
|
|
|
Total assets
|
|
|
|
$
|
617,423
|
|
|
|
|
$
|
636,828
|
|
|
|
Liabilities and Stockholders’ Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Company’s stockholders’ equity
|
|
|
|
$
|
617,423
|
|
|
|
|
$
|
636,828
|
|
|
|
Total liabilities and stockholders’ equity
|
|
|
|
$
|
617,423
|
|
|
|
|
$
|
636,828
|
|
|
Schedule I — Registrant’s Condensed Financial Statements
(Dollar amounts in thousands)
SNAP ONE HOLDINGS CORP. (PARENT COMPANY ONLY)
STATEMENTS OF CASH FLOWS
|
|
|
|
2020
|
|
|
2019
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
$
|
(24,884)
|
|
|
|
|
$
|
(34,364)
|
|
|
|
Adjustments to reconcile net loss to net cash provided by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from unconsolidated entities
|
|
|
|
|
24,884
|
|
|
|
|
|
34,364
|
|
|
|
Net cash used in operating activities
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investment in unconsolidated entities
|
|
|
|
|
—
|
|
|
|
|
|
(254,911)
|
|
|
|
Net cash provided by investing activities
|
|
|
|
|
—
|
|
|
|
|
|
(254,911)
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital contributions
|
|
|
|
|
—
|
|
|
|
|
|
254,911
|
|
|
|
Net cash used in financing activities
|
|
|
|
|
—
|
|
|
|
|
|
254,911
|
|
|
|
Net change in cash and cash equivalents
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Cash at beginning of period
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Cash at end of period
|
|
|
|
$
|
—
|
|
|
|
|
$
|
—
|
|
|
Schedule I — Registrant’s Condensed Financial Statements
(Dollar amounts in thousands)
Notes to Condensed Financial Information of Parent
1.
BASIS OF PRESENTATION
These condensed Snap One Holdings Corp. (“Parent Company”) only financial statements have been prepared in accordance with Rule 12-04 of Regulation S-X, as the restricted net assets of the subsidiaries of the Parent Company exceed 25% of the consolidated net assets of the Parent Company as stipulated by Rule 5-04, Section I from Regulation S-X. One of the Parent Company’s subsidiaries holds a credit agreement that contains certain covenants including restrictions on the subsidiary’s ability to incur or guarantee indebtedness or pay dividends and establishes requirements to maintain certain financial ratios based on earnings before interest, taxes, depreciation and amortization, adjusted for allowable add-backs. See Note 8 to the consolidated financial statements for more information.
These condensed Parent Company only financial statements have been prepared using the same accounting principles and policies described in the notes to the consolidated financial statements, with the only exception being that the Parent Company accounts for investments in its subsidiaries using the equity method. These condensed financial statements should be read in conjunction with the consolidated financial statements and related notes thereto.
Snap One Holdings Corp. and Subsidiaries
Unaudited Condensed Consolidated Balance Sheet
(in thousands, except share amounts and par value)
|
|
|
|
March 26,
2021
|
|
|
December 25,
2020
|
|
|
Assets
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$
|
48,943
|
|
|
|
|
$
|
77,458
|
|
|
|
Accounts receivable, net
|
|
|
|
|
56,313
|
|
|
|
|
|
49,363
|
|
|
|
Inventories, net
|
|
|
|
|
167,647
|
|
|
|
|
|
157,099
|
|
|
|
Prepaid expenses and other current assets
|
|
|
|
|
12,176
|
|
|
|
|
|
9,650
|
|
|
|
Total current assets
|
|
|
|
|
285,079
|
|
|
|
|
|
293,570
|
|
|
|
Long-term assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment, net
|
|
|
|
|
20,074
|
|
|
|
|
|
20,208
|
|
|
|
Goodwill
|
|
|
|
|
559,735
|
|
|
|
|
|
559,735
|
|
|
|
Other intangible assets, net
|
|
|
|
|
606,157
|
|
|
|
|
|
617,616
|
|
|
|
Other assets
|
|
|
|
|
6,885
|
|
|
|
|
|
6,409
|
|
|
|
Total assets
|
|
|
|
$
|
1,477,930
|
|
|
|
|
$
|
1,497,538
|
|
|
|
Liabilities and stockholders’ equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current maturities of long-term debt
|
|
|
|
$
|
6,824
|
|
|
|
|
$
|
21,149
|
|
|
|
Accounts payable
|
|
|
|
|
61,930
|
|
|
|
|
|
68,941
|
|
|
|
Accrued liabilities
|
|
|
|
|
73,023
|
|
|
|
|
|
80,658
|
|
|
|
Total current liabilities
|
|
|
|
|
141,777
|
|
|
|
|
|
170,748
|
|
|
|
Long-term liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt, net of current portion
|
|
|
|
|
644,916
|
|
|
|
|
|
630,864
|
|
|
|
Deferred income tax liabilities, net
|
|
|
|
|
54,724
|
|
|
|
|
|
55,518
|
|
|
|
Other liabilities
|
|
|
|
|
23,802
|
|
|
|
|
|
22,669
|
|
|
|
Total liabilities
|
|
|
|
|
865,219
|
|
|
|
|
|
879,799
|
|
|
|
Commitments and contingencies (Note 13)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders’ equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock, $0.001 par value, 500,000 shares authorized; and 394,778 shares issued and outstanding at March 26, 2021 and December 25, 2020
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Additional paid in capital
|
|
|
|
|
660,745
|
|
|
|
|
|
659,685
|
|
|
|
Accumulated deficit
|
|
|
|
|
(49,032)
|
|
|
|
|
|
(43,018)
|
|
|
|
Accumulated other comprehensive income
|
|
|
|
|
704
|
|
|
|
|
|
756
|
|
|
|
Company’s stockholders’ equity
|
|
|
|
|
612,417
|
|
|
|
|
|
617,423
|
|
|
|
Noncontrolling interest
|
|
|
|
|
294
|
|
|
|
|
|
316
|
|
|
|
Total stockholders’ equity
|
|
|
|
|
612,711
|
|
|
|
|
|
617,739
|
|
|
|
Total liabilities and stockholders’ equity
|
|
|
|
$
|
1,477,930
|
|
|
|
|
$
|
1,497,538
|
|
|
The accompanying notes are an integral part of these condensed consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Unaudited Condensed Consolidated Statements of Operations
(in thousands, except share amounts and per share)
|
|
|
|
Three Months Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
Net sales
|
|
|
|
$
|
220,468
|
|
|
|
|
$
|
172,611
|
|
|
|
Costs and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales, exclusive of depreciation and amortization
|
|
|
|
|
128,876
|
|
|
|
|
|
100,390
|
|
|
|
Selling, general and administrative expenses
|
|
|
|
|
75,357
|
|
|
|
|
|
67,386
|
|
|
|
Depreciation and amortization
|
|
|
|
|
13,712
|
|
|
|
|
|
14,483
|
|
|
|
Total costs and expenses
|
|
|
|
|
217,945
|
|
|
|
|
|
182,259
|
|
|
|
Income (loss) from operations
|
|
|
|
|
2,523
|
|
|
|
|
|
(9,648)
|
|
|
|
Other expenses (income):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
|
|
9,535
|
|
|
|
|
|
12,803
|
|
|
|
Other (income) expense
|
|
|
|
|
(213)
|
|
|
|
|
|
883
|
|
|
|
Total other expenses
|
|
|
|
|
9,322
|
|
|
|
|
|
13,686
|
|
|
|
Loss before income tax benefit
|
|
|
|
|
(6,799)
|
|
|
|
|
|
(23,334)
|
|
|
|
Income tax benefit
|
|
|
|
|
(763)
|
|
|
|
|
|
(4,316)
|
|
|
|
Net loss
|
|
|
|
|
(6,036)
|
|
|
|
|
|
(19,018)
|
|
|
|
Net loss attributable to noncontrolling interest
|
|
|
|
|
(22)
|
|
|
|
|
|
(24)
|
|
|
|
Net loss attributable to Company
|
|
|
|
|
(6,014)
|
|
|
|
|
|
(18,994)
|
|
|
|
Net loss per share, basic and diluted
|
|
|
|
|
(15.23)
|
|
|
|
|
|
(49.00)
|
|
|
|
Weighted average shares outstanding, basic and diluted
|
|
|
|
|
394,778
|
|
|
|
|
|
387,601
|
|
|
The accompanying notes are an integral part of these condensed consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Unaudited Condensed Consolidated Statements of Comprehensive Loss
(in thousands)
|
|
|
|
Three Months Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
Net loss
|
|
|
|
$
|
(6,036)
|
|
|
|
|
$
|
(19,018)
|
|
|
|
Other comprehensive loss, net of tax:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustments
|
|
|
|
|
(52)
|
|
|
|
|
|
(434)
|
|
|
|
Comprehensive loss
|
|
|
|
|
(6,088)
|
|
|
|
|
|
(19,452)
|
|
|
|
Comprehensive loss attributable to noncontrolling interest
|
|
|
|
|
(22)
|
|
|
|
|
|
(24)
|
|
|
|
Comprehensive loss attributable to Company
|
|
|
|
$
|
(6,066)
|
|
|
|
|
$
|
(19,428)
|
|
|
The accompanying notes are an integral part of these condensed consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Unaudited Condensed Consolidated Statements of Stockholders’ Equity
(in thousands, except share amounts)
|
|
|
|
Common Stock
|
|
|
Additional
Paid-In
Capital
|
|
|
Accumulated
Deficit
|
|
|
Accumulated
Other
Comprehensive
Income (Loss)
|
|
|
Noncontrolling
Interest
|
|
|
Total
Stockholders’
Equity
|
|
|
|
|
|
Number of
Shares
|
|
|
Amount
|
|
|
Balance – December 25,
2020
|
|
|
|
|
394,778
|
|
|
|
|
$
|
—
|
|
|
|
|
$
|
659,685
|
|
|
|
|
$
|
(43,018)
|
|
|
|
|
$
|
756
|
|
|
|
|
$
|
316
|
|
|
|
|
$
|
617,739
|
|
|
|
Net loss
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(6,014)
|
|
|
|
|
|
—
|
|
|
|
|
|
(22)
|
|
|
|
|
|
(6,036)
|
|
|
|
Foreign currency translation
adjustments
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(52)
|
|
|
|
|
|
—
|
|
|
|
|
|
(52)
|
|
|
|
Equity-based compensation expense
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
1,060
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
1,060
|
|
|
|
Balance – March 26, 2021
|
|
|
|
|
394,778
|
|
|
|
|
$
|
—
|
|
|
|
|
$
|
660,745
|
|
|
|
|
$
|
(49,032)
|
|
|
|
|
$
|
704
|
|
|
|
|
$
|
294
|
|
|
|
|
$
|
612,711
|
|
|
|
|
|
|
Common Stock
|
|
|
Additional
Paid-In
Capital
|
|
|
Accumulated
Deficit
|
|
|
Accumulated
Other
Comprehensive
Income (Loss)
|
|
|
Noncontrolling
Interest
|
|
|
Total
Stockholders’
Equity
|
|
|
|
|
|
Number of
Shares
|
|
|
Amount
|
|
|
Balance – December 27,
2019
|
|
|
|
|
387,601
|
|
|
|
|
$
|
—
|
|
|
|
|
$
|
655,001
|
|
|
|
|
$
|
(18,134)
|
|
|
|
|
$
|
(39)
|
|
|
|
|
$
|
99
|
|
|
|
|
$
|
636,927
|
|
|
|
Net loss
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(18,994)
|
|
|
|
|
|
—
|
|
|
|
|
|
(24)
|
|
|
|
|
|
(19,018)
|
|
|
|
Foreign currency translation
adjustments
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(434)
|
|
|
|
|
|
—
|
|
|
|
|
|
(434)
|
|
|
|
Equity-based compensation expense
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
1,362
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
1,362
|
|
|
|
Balance – March 27, 2020
|
|
|
|
|
387,601
|
|
|
|
|
$
|
—
|
|
|
|
|
$
|
656,363
|
|
|
|
|
$
|
(37,128)
|
|
|
|
|
$
|
(473)
|
|
|
|
|
$
|
75
|
|
|
|
|
$
|
618,837
|
|
|
The accompanying notes are an integral part of these condensed consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Unaudited Condensed Consolidated Statements of Cash Flows
(in thousands)
|
|
|
|
Three Months Ended
|
|
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
$
|
(6,036)
|
|
|
|
|
$
|
(19,018)
|
|
|
|
Adjustments to reconcile net loss to net cash used in operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
|
13,712
|
|
|
|
|
|
14,483
|
|
|
|
Amortization of debt issuance costs
|
|
|
|
|
1,525
|
|
|
|
|
|
1,525
|
|
|
|
Unrealized loss on interest rate cap
|
|
|
|
|
—
|
|
|
|
|
|
3
|
|
|
|
Deferred income taxes
|
|
|
|
|
(795)
|
|
|
|
|
|
(3,778)
|
|
|
|
Loss on sale and disposal of property and equipment
|
|
|
|
|
259
|
|
|
|
|
|
20
|
|
|
|
Equity-based compensation
|
|
|
|
|
1,060
|
|
|
|
|
|
1,362
|
|
|
|
Bad debt expense
|
|
|
|
|
76
|
|
|
|
|
|
322
|
|
|
|
Fair value adjustment to contingent value rights
|
|
|
|
|
1,310
|
|
|
|
|
|
(300)
|
|
|
|
Change in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
|
|
(7,027)
|
|
|
|
|
|
(2,413)
|
|
|
|
Inventories
|
|
|
|
|
(10,548)
|
|
|
|
|
|
8,629
|
|
|
|
Prepaid expenses and other assets
|
|
|
|
|
(2,653)
|
|
|
|
|
|
1,613
|
|
|
|
Accounts payable and accrued liabilities
|
|
|
|
|
(14,750)
|
|
|
|
|
|
(16,123)
|
|
|
|
Net cash used in operating activities
|
|
|
|
|
(23,867)
|
|
|
|
|
|
(13,675)
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
|
|
(2,050)
|
|
|
|
|
|
(2,405)
|
|
|
|
Receipt of payment on notes receivable
|
|
|
|
|
—
|
|
|
|
|
|
22
|
|
|
|
Other
|
|
|
|
|
(429)
|
|
|
|
|
|
—
|
|
|
|
Net cash used in investing activities
|
|
|
|
|
(2,479)
|
|
|
|
|
|
(2,383)
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments on long-term debt
|
|
|
|
|
(1,797)
|
|
|
|
|
|
(2,288)
|
|
|
|
Proceeds from revolving credit facility
|
|
|
|
|
—
|
|
|
|
|
|
47,375
|
|
|
|
Payment of deferred initial public offering costs
|
|
|
|
|
(349)
|
|
|
|
|
|
—
|
|
|
|
Net cash (used in) provided by financing activities
|
|
|
|
|
(2,146)
|
|
|
|
|
|
45,087
|
|
|
|
Effect of exchange rate changes on cash and cash equivalents
|
|
|
|
|
(23)
|
|
|
|
|
|
(372)
|
|
|
|
Net (decrease) increase in cash and cash equivalents
|
|
|
|
|
(28,515)
|
|
|
|
|
|
28,657
|
|
|
|
Cash and cash equivalents – Beginning of period
|
|
|
|
|
77,458
|
|
|
|
|
|
33,177
|
|
|
|
Cash and cash equivalents – End of period
|
|
|
|
$
|
48,943
|
|
|
|
|
$
|
61,834
|
|
|
|
Supplementary cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash payments for interest
|
|
|
|
$
|
8,106
|
|
|
|
|
$
|
11,643
|
|
|
|
Cash paid (refund) for taxes, net
|
|
|
|
$
|
485
|
|
|
|
|
$
|
(10)
|
|
|
|
Noncash investing and financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditure in accounts payable
|
|
|
|
$
|
67
|
|
|
|
|
$
|
810
|
|
|
The accompanying notes are an integral part of these condensed consolidated financial statements
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
1.
Description of Business
Crackle Holdings LP (the “Parent”) was formed on June 14, 2017 by affiliates of Hellman and Friedman (the “Sponsor”) for the purposes of purchasing Snap One Holdings Corp., (formerly Crackle Intermediate Corp.) and its subsidiaries (collectively, the “Company”). On August 3, 2017, Parent acquired all of the Company’s outstanding equity interests. Since the acquisition of the Company by Parent on August 3, 2017, the Company has been controlled by funds managed by the Sponsor.
The Company provides products and support to its professional integrator-customers that enable them to deliver technology solutions to their residential and small business end users. The Company’s product offering consists of both proprietary and third-party products in such categories as home automation, networking, audio, video, remote management, and lighting as well as infrastructure products such as racks, mounts, and cables.
2.
Significant Accounting Policies
Basis of Presentation — The accompanying condensed consolidated financial statements have been prepared in conformity with generally accepted accounting principles in the United States of America (GAAP) for interim financial statements. The condensed consolidated financial statements were prepared on the same basis as the audited consolidated financial statements and, in the opinion of management, reflect all adjustments, consisting of only normal recurring adjustments, necessary to present fairly the Company’s financial position, results of operations and cash flows for the periods presented. The condensed consolidated financial statements include the accounts of the Company and all subsidiaries required to be consolidated. All intercompany balances and transactions have been eliminated in the condensed consolidated financial statements. The condensed consolidated balance sheet as of December 25, 2020 has been derived from the audited consolidated financial statements of the Company.
The accompanying condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto, for fiscal year 2020.
The Company’s fiscal year is the 52 or 53 week period that ends on the last Friday of December. Fiscal years 2021 and 2020 are 52-week periods. The three months ended March 26, 2021 and March 27, 2020 were 13 week periods.
Use of Accounting Estimates — The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported and disclosed in the condensed consolidated financial statements and accompanying notes. Accordingly, the actual amounts could differ from those estimates. If actual amounts differ from estimates, revisions are included in the condensed consolidated statements of operations in the period the actual amounts become known.
Recent Accounting Pronouncements Pending Adoption — In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842), which establishes the principles to report transparent and economically neutral information about the assets and liabilities that arise from leases. This new guidance requires lessees to recognize the lease assets and lease liabilities that arise from leases in the statement of financial position and to disclose qualitative and quantitative information about lease transactions, such as information about variable lease payments and options to renew and terminate leases. Recently, the FASB issued ASU 2020-05, which deferred the effective date to fiscal years beginning after December 15, 2021, and interim periods within fiscal years beginning after December 15, 2022. Adoption of the new standard is expected to result in the recognition of right-of-use assets and operating lease liabilities related to currently classified operating leases. The Company is still evaluating the materiality of the impact of this standard on its condensed consolidated financial statements and disclosures.
In June 2016, the FASB issued ASU 2016-13, “Financial Instruments — Credit Losses”. The ASU sets forth a “current expected credit loss” (“CECL”) model which requires the Company to measure all expected credit losses for financial instruments held at the reporting date based on historical experience, current
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
conditions, and reasonable supportable forecasts. This replaces the existing incurred loss model and is applicable to the measurement of credit losses on financial assets measured at amortized cost and applies to some off-balance sheet credit exposures. This ASU was effective for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years, with early adoption permitted. In November 2019, the FASB issued ASU 2019-10 which deferred the effective date to fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. The Company is currently evaluating the impact this guidance will have on its condensed consolidated financial statements.
In August 2018, the FASB issued ASU 2018-15, “Intangibles — Goodwill and Other — Internal-Use Software (Subtopic 350-40): Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement That is a Service Contract”. The guidance aligns the requirements for capitalizing implementation costs incurred in a cloud computing arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-use software. This standard is effective for annual reporting periods beginning after December 15, 2020, and interim periods within annual periods beginning after December 15, 2021. The Company is currently evaluating the impact this guidance will have on its condensed consolidated financial statements.
Recently Adopted Accounting Pronouncements — In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes. This update simplifies accounting for income taxes by eliminating some exceptions to the general approach in ASC 740, Income Taxes, related to intraperiod tax allocation, the methodology for calculating income tax in an interim period and the recognition of deferred tax liabilities for outside basis differences. This update is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2020, with early adoption permitted. The amendments in this update should be applied on either a retrospective basis, a modified retrospective basis or prospectively, depending on the provision within the amendment. The Company adopted the standard for the fiscal year beginning December 26, 2020. Adoption of the standard did not have a material impact on the condensed consolidated financial statements.
3.
Revenue and Geographic Information
Contract Balances — Amounts invoiced in advance of revenue recognition are recorded as deferred revenue on the condensed consolidated balance sheets. Deferred revenue primarily relates to unspecified software updates and upgrades, hosting, technical support, marketing incentive programs, and subscription services. The following table represents the changes in deferred revenue for the three months ended March 26, 2021 and March 27, 2020:
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
Deferred revenue – beginning of period
|
|
|
|
$
|
30,466
|
|
|
|
|
$
|
23,820
|
|
|
|
Amounts billed, but not recognized
|
|
|
|
|
6,661
|
|
|
|
|
|
6,630
|
|
|
|
Recognition of revenue
|
|
|
|
|
(6,063)
|
|
|
|
|
|
(5,603)
|
|
|
|
Deferred revenue – end of period
|
|
|
|
$
|
31,064
|
|
|
|
|
$
|
24,847
|
|
|
The Company recorded deferred revenue of $19,154 in accrued liabilities and $11,910 in other liabilities as of March 26, 2021. The Company recorded deferred revenue of $18,654 in accrued liabilities and $11,812 in other liabilities as of December 25, 2020.
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
Disaggregation of Revenue — The following table sets forth revenue from the United States and all international dealers and distributors for the three months ended March 26, 2021 and March 27, 2020:
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
United States
|
|
|
|
$
|
194,078
|
|
|
|
|
$
|
154,468
|
|
|
|
International
|
|
|
|
|
26,390
|
|
|
|
|
|
18,143
|
|
|
|
Total
|
|
|
|
$
|
220,468
|
|
|
|
|
$
|
172,611
|
|
|
Additionally, the Company’s revenue includes amounts recognized over time and at a point in time, and are as follows for the three months ended March 26, 2021 and March 27, 2020:
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
Products transferred at a point in time
|
|
|
|
$
|
214,405
|
|
|
|
|
$
|
167,008
|
|
|
|
Services transferred over time
|
|
|
|
|
6,063
|
|
|
|
|
|
5,603
|
|
|
|
Total
|
|
|
|
$
|
220,468
|
|
|
|
|
$
|
172,611
|
|
|
As of March 26, 2021, and December 25, 2020, the Company’s accounts receivable, net consisted of the following:
|
|
|
|
March 26,
2021
|
|
|
December 25,
2020
|
|
|
Accounts receivable
|
|
|
|
$
|
58,692
|
|
|
|
|
$
|
51,716
|
|
|
|
Allowance for doubtful accounts
|
|
|
|
|
(2,379)
|
|
|
|
|
|
(2,353)
|
|
|
|
Accounts receivable, net
|
|
|
|
$
|
56,313
|
|
|
|
|
$
|
49,363
|
|
|
4.
Inventories, Net
As of March 26, 2021, and December 25, 2020, the Company’s inventory consisted of the following:
|
|
|
|
March 26,
2021
|
|
|
December 25,
2020
|
|
|
Raw Materials
|
|
|
|
$
|
5,193
|
|
|
|
|
$
|
11,340
|
|
|
|
Work In Process
|
|
|
|
|
566
|
|
|
|
|
|
591
|
|
|
|
Finished Goods
|
|
|
|
|
173,043
|
|
|
|
|
|
155,618
|
|
|
|
Reserve For Obsolete and Slow Moving Inventory
|
|
|
|
|
(11,155)
|
|
|
|
|
|
(10,450)
|
|
|
|
Total Inventories, net
|
|
|
|
$
|
167,647
|
|
|
|
|
$
|
157,099
|
|
|
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
5.
Other Intangible Assets, Net
As of March 26, 2021, and December 25, 2020, Other intangible assets, net, consisted of the following:
As of March 26, 2021:
|
|
|
|
Estimated
Useful Life
|
|
|
Gross
Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Net
Carrying
Amount
|
|
|
Customer relationships
|
|
|
5 – 25 years
|
|
|
|
$
|
494,762
|
|
|
|
|
$
|
(76,354)
|
|
|
|
|
$
|
418,408
|
|
|
|
Technology
|
|
|
5 – 15 years
|
|
|
|
|
95,078
|
|
|
|
|
|
(26,359)
|
|
|
|
|
|
68,719
|
|
|
|
Trade names – definite
|
|
|
2 – 10 years
|
|
|
|
|
54,360
|
|
|
|
|
|
(11,894)
|
|
|
|
|
|
42,466
|
|
|
|
Trade names – indefinite
|
|
|
indefinite
|
|
|
|
|
76,564
|
|
|
|
|
|
—
|
|
|
|
|
|
76,564
|
|
|
|
Total intangible assets
|
|
|
|
|
|
|
$
|
720,764
|
|
|
|
|
$
|
(114,607)
|
|
|
|
|
$
|
606,157
|
|
|
As of December 25, 2020:
|
|
|
|
Estimated
Useful Life
|
|
|
Gross
Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Net
Carrying
Amount
|
|
|
Customer relationships
|
|
|
5 – 25 years
|
|
|
|
$
|
494,333
|
|
|
|
|
$
|
(70,060)
|
|
|
|
|
$
|
424,273
|
|
|
|
Technology
|
|
|
5 – 15 years
|
|
|
|
|
95,078
|
|
|
|
|
|
(22,406)
|
|
|
|
|
|
72,672
|
|
|
|
Trade names – definite
|
|
|
2 – 10 years
|
|
|
|
|
54,360
|
|
|
|
|
|
(10,253)
|
|
|
|
|
|
44,107
|
|
|
|
Trade names – indefinite
|
|
|
indefinite
|
|
|
|
|
76,564
|
|
|
|
|
|
—
|
|
|
|
|
|
76,564
|
|
|
|
Total intangible assets
|
|
|
|
|
|
|
$
|
720,335
|
|
|
|
|
$
|
(102,719)
|
|
|
|
|
$
|
617,616
|
|
|
Total amortization expense for intangible assets for the three months ended March 26, 2021 and March 27, 2020, was $11,888 and $11,875, respectively. The weighted-average useful life remaining for amortizing definite lived intangible assets was approximately 15.8 years as of March 26, 2021.
As of March 26, 2021, the estimated amortization expense for intangible assets for the next five fiscal years and thereafter are as follows:
|
|
Remainder of 2021
|
|
|
|
$
|
35,504
|
|
|
|
|
2022
|
|
|
|
|
46,331
|
|
|
|
|
2023
|
|
|
|
|
45,193
|
|
|
|
|
2024
|
|
|
|
|
38,691
|
|
|
|
|
2025
|
|
|
|
|
31,075
|
|
|
|
|
2026 and thereafter
|
|
|
|
|
332,799
|
|
|
|
|
Total
|
|
|
|
$
|
529,593
|
|
|
6.
Debt Agreements
On August 4, 2017, the Company’s wholly owned subsidiary, Wirepath LLC (the “Borrower”) entered into a credit agreement (as amended from time to time, the “Credit Agreement”), consisting of a senior secured term loan (the “Initial Term Loan”) and a senior secured revolving credit facility (the “Revolving Credit Facility”). On February 5, 2018, the Borrower repriced the Credit Agreement to reduce the margin on the Initial Term Loan and Revolving Credit Facility. On October 31, 2018, the Borrower repriced the Initial Term Loan facility to further reduce the margin under the Initial Term Loan, increased the aggregate amount of the Initial Term Loan, and further reduced the margin under the Revolving Credit Facility. On
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
August 1, 2019, the Borrower amended the Credit Agreement to borrow an additional senior secured term loan (the “Incremental Term Loan” and, together with the Initial Term Loan, as amended, the “Term Loans”) and increased the commitments under the Revolving Credit Facility. The Company makes fixed equal quarterly installments on the Term Loans in an amount equal to 1.0% per annum of the total aggregate principal thereof immediately after borrowing, with balance due at maturity.
|
Instrument
|
|
|
Maturity Date
|
|
|
Amount
|
|
|
Interest Rate
|
|
|
Effective rate
(as of March 26,
2021)
|
|
|
Credit Agreement (as amended)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Initial Term Loan
|
|
|
|
|
8/4/2024
|
|
|
|
|
|
292,355
|
|
|
|
LIBOR plus 4.00%
|
|
|
|
|
4.25%
|
|
|
|
Incremental Term Loan
|
|
|
|
|
8/4/2024
|
|
|
|
|
|
390,000
|
|
|
|
LIBOR plus 4.75%
|
|
|
|
|
5.00%
|
|
|
|
Revolving Credit Facility
|
|
|
|
|
8/4/2022
|
|
|
|
|
|
60,000
|
|
|
|
LIBOR plus 4.00%
|
|
|
|
|
4.25%
|
|
|
|
Credit Agreement (at origination)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Initial Term Loan
|
|
|
|
|
8/4/2024
|
|
|
|
|
|
265,000
|
|
|
|
LIBOR plus 5.25%
|
|
|
|
|
|
|
|
|
Revolving Credit Facility
|
|
|
|
|
8/4/2022
|
|
|
|
|
|
50,000
|
|
|
|
LIBOR plus 5.25%
|
|
|
|
|
|
|
|
The Company may also be required to make additional payments under the financing agreement equal to a percentage of the Company’s annual excess cash flows or net proceeds from any non-ordinary course asset sales or certain debt issuances, if any. The lender has the option to decline the prepayment. As of December 25, 2020, in accordance with these provisions, the Company estimated a mandatory excess cash flow payment offer related to the term loans of $14,325 to the lender. The entire amount of the expected payment was classified within current maturities of long-term debt on the consolidated balance sheet as of December 25, 2020. Subsequent to the issuance of the Company’s audited financial statements as of and for the period ended December 25, 2020, the Company elected an option available in the financing agreement to accelerate expected cash outlays in fiscal year 2021 that would eliminate the requirement for an excess cash flow payment for fiscal year 2020. As a result, the estimated excess cash payment was not made and only the contractual payments under the financing agreement are considered current maturities of long-term debt as of March 26, 2021.
As of March 26, 2021 and December 25, 2020, the Company had no borrowings outstanding under the Revolving Credit Facility and $4,894 of outstanding letters of credit. The amount available under the Revolving Credit Facility was $55,106 as of March 26, 2021 and December 25, 2020. The Company borrowed $47,375 under the Revolving Credit Facility during the three months ended March 27, 2020 in order to enhance liquidity as a precautionary measure in response to the COVID-19 pandemic and the borrowings were repaid in full later in the year ending December 25, 2020.
As of March 26, 2021, the future scheduled maturities of the above notes payable are as follows:
|
|
Remainder of 2021
|
|
|
|
$
|
6,824
|
|
|
|
|
2022
|
|
|
|
|
6,824
|
|
|
|
|
2023
|
|
|
|
|
6,824
|
|
|
|
|
2024
|
|
|
|
|
650,430
|
|
|
|
|
Total future maturities of long-term debt
|
|
|
|
|
670,902
|
|
|
|
|
Unamortized debt issuance costs
|
|
|
|
|
(19,162)
|
|
|
|
|
Total indebtedness
|
|
|
|
$
|
651,740
|
|
|
|
|
Less: Current maturities of long-term debt
|
|
|
|
|
6,824
|
|
|
|
|
Long-term debt
|
|
|
|
$
|
644,916
|
|
|
Unamortized costs related to issuance of the Term Loans were $19,162 and $20,595 as of March 26, 2021 and December 25, 2020 and are presented as a direct deduction from the carrying amount of long-term
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
debt. Unamortized costs related to the issuance of the Revolving Credit Facility were $491 and $583 as of March 26, 2021 and December 25, 2020 and are included in other assets in the condensed consolidated balance sheets. The costs related to debt issuances are amortized to interest expense over the life of the related debt. As of March 26, 2021, the future amortization of debt issuance costs is as follows:
|
|
Remainder of 2021
|
|
|
|
$
|
4,576
|
|
|
|
|
2022
|
|
|
|
|
5,951
|
|
|
|
|
2023
|
|
|
|
|
5,735
|
|
|
|
|
2024
|
|
|
|
|
3,391
|
|
|
|
|
Total
|
|
|
|
$
|
19,653
|
|
|
Debt Covenants and Default Provisions — There have been no changes to the debt covenants or default provisions related to the Company’s outstanding debt arrangements or other obligations during the current year. The Company was in compliance with all debt covenants as of March 26, 2021 and December 25, 2020. For additional information on the Company’s debt arrangements, debt covenants and default provisions, see Note 8, Debt Agreements, of the consolidated financial statements for the year ended December 25, 2020.
7.
Fair Value Measurement
Fair Value of Financial Instruments — The fair values and related carrying values of financial instruments that are not required to be remeasured at fair value on the condensed consolidated statements of operations were as follows:
|
|
|
|
As of March 26, 2021
|
|
|
As of December 25, 2020
|
|
|
|
Carrying
Amount
|
|
|
Fair
Value
|
|
|
Carrying
Amount
|
|
|
Fair
Value
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes receivable, net
|
|
|
|
|
5,211
|
|
|
|
|
|
5,291
|
|
|
|
|
$
|
5,115
|
|
|
|
|
$
|
5,494
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Initial Term Loan
|
|
|
|
|
285,777
|
|
|
|
|
|
269,345
|
|
|
|
|
|
286,508
|
|
|
|
|
|
267,169
|
|
|
|
Incremental Term Loan
|
|
|
|
$
|
385,125
|
|
|
|
|
$
|
381,755
|
|
|
|
|
$
|
386,100
|
|
|
|
|
$
|
384,652
|
|
|
The fair value of notes receivable are estimated using a discounted cash flow analysis using interest rates currently offered for loans with similar credit quality which represent Level 2 inputs. The fair value of long-term debt was established using current market rates for similar instruments traded in secondary markets representing Level 2 inputs. The fair value of the Revolving Credit Facility approximates carrying value as the related interest rates approximate the Company’s incremental borrowing rate for similar obligations. Additionally, cash and cash equivalents, accounts receivable, net, prepaid expenses, accounts payable, and accrued liabilities are classified as Level 1 and the carrying value of these assets and liabilities approximate their fair value due to the short-term nature of these financial instruments.
Assets and Liabilities that are Measured at Fair Value on a Recurring Basis — The fair value of the interest rate cap is determined by using widely accepted valuation techniques and based on its maturity, observable market-based inputs including interest rate curves and is considered to be a Level 2 measurement. The interest rate cap had no value as of March 26, 2021 and December 25, 2020.
The Company utilizes the option-pricing method, which was used with the Black-Scholes option-pricing model (“OPM”) in order to determine the fair value of the CVRs. Any future increase in the fair value of the CVR obligations, based on an increased likelihood that the underlying milestones will be achieved, and the associated payment or payments will, therefore, become due and payable, will result in a
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
charge to selling, general and administrative expenses in the period in which the increase is determined. Similarly, any future decrease in the fair value of the CVR obligations will result in a reduction in selling, general and administrative expenses. Accordingly, the CVRs are classified as Level 3.
|
|
|
|
Fair value at
March 26,
2021
|
|
|
Valuation
Technique
|
|
|
Unobservable
Input
|
|
|
Volatility
|
|
|
Contingent Value Rights
|
|
|
|
$
|
5,310
|
|
|
|
|
|
OPM
|
|
|
|
|
|
Volatility
|
|
|
|
|
|
57.3%
|
|
|
Changes in the CVRs for the three months ended March 26, 2021 and March 27, 2020 were as follows:
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
CVR fair value – beginning of period
|
|
|
|
$
|
4,000
|
|
|
|
|
$
|
3,200
|
|
|
|
Fair value adjustments
|
|
|
|
|
1,310
|
|
|
|
|
|
(300)
|
|
|
|
CVR fair value – end of period
|
|
|
|
$
|
5,310
|
|
|
|
|
$
|
2,900
|
|
|
CVR liabilities are classified as other liabilities in the accompanying condensed consolidated balance sheets and to the fair value of CVR liabilities are included in selling, general and administrative expenses in the condensed consolidated statements of operations.
There were no transfers into or out of Level 3 investments during the three months ended March 26, 2021 or March 27, 2020.
8.
Accrued Liabilities
Accrued liabilities as of March 26, 2021 and December 25, 2020, consisted of the following:
|
|
|
|
March 26,
2021
|
|
|
December 25,
2020
|
|
|
Payroll, vacation, and bonus accruals
|
|
|
|
$
|
17,593
|
|
|
|
|
$
|
29,700
|
|
|
|
Deferred revenue
|
|
|
|
|
19,154
|
|
|
|
|
|
18,654
|
|
|
|
Warranty reserve
|
|
|
|
|
14,002
|
|
|
|
|
|
11,767
|
|
|
|
Interest payable
|
|
|
|
|
7,480
|
|
|
|
|
|
7,576
|
|
|
|
Sales return allowance
|
|
|
|
|
4,071
|
|
|
|
|
|
3,741
|
|
|
|
Customer rebate program
|
|
|
|
|
1,966
|
|
|
|
|
|
2,140
|
|
|
|
IBNR
|
|
|
|
|
1,500
|
|
|
|
|
|
1,215
|
|
|
|
Taxes
|
|
|
|
|
1,363
|
|
|
|
|
|
752
|
|
|
|
Other accrued liabilities
|
|
|
|
|
5,894
|
|
|
|
|
|
5,113
|
|
|
|
Total accrued liabilities
|
|
|
|
$
|
73,023
|
|
|
|
|
$
|
80,658
|
|
|
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
9.
Warranties
Changes in the Company’s accrued warranty liability for the three months ended March 25, 2021 and March 27, 2020, are as follows:
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
Accrued warranty – beginning of period
|
|
|
|
$
|
16,523
|
|
|
|
|
$
|
19,989
|
|
|
|
Warranty claims
|
|
|
|
|
(4,002)
|
|
|
|
|
|
(2,954)
|
|
|
|
Warranty provisions
|
|
|
|
|
5,707
|
|
|
|
|
|
2,629
|
|
|
|
Accrued warranty – end of period
|
|
|
|
$
|
18,228
|
|
|
|
|
$
|
19,664
|
|
|
As of March 26, 2021, the Company has recorded accrued warranty liabilities of $14,002 in accrued liabilities and $4,226 in other liabilities in the accompanying consolidated balance sheet. As of December 25, 2020, the Company has recorded accrued warranty of $11,767 in accrued liabilities and $4,756 in other liabilities.
10.
Retirement Plan
The Company has a legacy 401(k) plan that covers eligible employees as defined by the plan agreement. As of January 1, 2020, the Company matches 100% of employee contributions to the plan, up to 3% of the employees’ total compensation, and 50% of employee contributions to the plan, up to 6% of the employees’ total compensation. Company contributions to the plan, net of forfeitures, were $1,170 and $1,155 for the three months ended March 26, 2021 and March 27, 2020, respectively.
11.
Equity Agreements and Incentive Equity Plans
Parent Incentive Plan — In October 2017, the Parent approved the Class B Unit Incentive Plan, which established the terms and provided for grants of certain incentive units to employees, officers, directors, consultants, and advisors of the Company containing service-based and/or market-based vesting criteria. Class B-1 Incentive Units (“B-1 Units”) become vested in installments over a five-year period, subject to the grantee’s continued employment or service. Class B-2 Incentive Units (“B-2 Units”) have both service-based and market-based vesting conditions, as they are subject to the same service conditions as the B-1 Units, but also require the achievement of a specified return hurdle in order to vest.
The assumptions used in the OPM model to determine the fair value of incentive units granted during the three months ended March 26, 2021 were as follows:
|
|
|
|
March 26, 2021
|
|
|
Expected holding period
|
|
|
4 years
|
|
|
Risk-free rate of return
|
|
|
—%
|
|
|
Expected dividend yield
|
|
|
—%
|
|
|
Expected volatility
|
|
|
57.3%
|
|
|
Discount for lack of marketability
|
|
|
10%
|
|
The Company estimated a discount for lack of marketability (“DLOM”) using a put option model. The DLOM reflects the lower value placed on securities that are not freely transferable, as compared to those that trade frequently in established markets.
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
The summary of the Company’s incentive unit activity as of March 26, 2021 is as follows:
|
|
|
|
B-1 Incentive Units
|
|
|
B-2 Incentive Units
|
|
|
|
Number of
Units
(in 000’s)
|
|
|
Weighted-
Average
Grant-Date
Fair Value
|
|
|
Number of
Units
(in 000’s)
|
|
|
Weighted-
Average
Grant-Date
Fair Value
|
|
|
Outstanding units-December 25, 2020
|
|
|
|
|
70,739
|
|
|
|
|
$
|
0.34
|
|
|
|
|
|
19,822
|
|
|
|
|
$
|
0.06
|
|
|
|
Units granted
|
|
|
|
|
1,200
|
|
|
|
|
|
0.51
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Units forfeited
|
|
|
|
|
3,010
|
|
|
|
|
|
0.39
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Outstanding units-March 26, 2021
|
|
|
|
|
68,929
|
|
|
|
|
$
|
0.34
|
|
|
|
|
|
19,822
|
|
|
|
|
$
|
0.06
|
|
|
|
Vested units-March 26, 2021
|
|
|
|
|
31,550
|
|
|
|
|
$
|
0.31
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Nonvested units-March 26, 2021
|
|
|
|
|
37,379
|
|
|
|
|
$
|
0.37
|
|
|
|
|
|
19,822
|
|
|
|
|
$
|
0.06
|
|
|
During the three months ended March 26, 2021, 2,832 B-1 Units vested with a total grant-date fair value of $878. The Company recognized $1,060 and $1,362 of compensation expense within selling, general and administrative expenses in the accompanying condensed consolidated statements of operations during the three months ended March 26, 2021 and March 27, 2020, respectively.
As of March 26, 2021, there was approximately $12,863 of unrecognized compensation expense related to outstanding incentive units, which is expected to be recognized subsequent to March 26, 2021, over a weighted-average period of approximately four years.
Control4 Equity Awards — In connection with the Control4 Acquisition, the Company agreed to a settlement of Control4 equity awards that were outstanding immediately prior to the acquisition date, consisting of stock options (“C4 Stock Options”) and restricted stock units (“C4 RSUs” and, together with C4 Stock Options, “C4 Equity Awards”). As of the acquisition date, 2,998 shares of C4 Equity Awards were cancelled and converted into rights to receive cash payments (the “Replacement Awards”). During the three months ended March 26, 2021, 6 Replacement Award units were forfeited. As of March 26, 2021, 167 Replacement Award units remain outstanding, consisting of 18 vested and 149 unvested units.
The Company recognized $1,726 and $2,802 of compensation expense relating to the Replacement Awards within selling, general and administrative expenses in the accompanying condensed consolidated statement of operations during the three months ended March 26, 2021 and March 27, 2020, respectively.
There was approximately $3,573 of unrecognized compensation expense related to the nonvested Replacement Awards, which is expected to be recognized subsequent to March 26, 2021 over a weighted-average period of approximately 1 year. Total unrecognized compensation expense will be adjusted for future forfeitures.
12.
Income Taxes
The Company had an effective tax rate for the first three months of 2021 of 11.27% (benefit) compared to 18.52% (benefit) for the first three months of 2020. The decrease in the effective tax rate for the first three months and the difference from the U.S. federal statutory rate of 21% was primarily the result of discrete items recognized related to one-time transaction costs and the adjustment of deferred tax liabilities and the benefit of certain tax credits.
Income tax benefit was $763 during the three months ended March 26, 2021, compared to income tax benefit of $4,316 during the three months ended March 27, 2020.
13.
Commitments and Contingencies
Legal Proceedings — During the normal course of business, the Company is occasionally involved with various claims and litigation. Reserves are established in connection with such matters when a loss is probable,
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
and the amount of such loss can be reasonably estimated. As of March 26, 2021, and December 25, 2020, no material reserves were recorded. The determination of probability and the estimation of the actual amount of any such loss are inherently unpredictable, and it is therefore possible that the eventual outcome of such claims and litigation could exceed the estimated reserves, if any. However, the Company does not expect the outcome of the matters currently pending will have a material adverse effect on the condensed consolidated financial statements.
Lease Commitments — The Company leases offices, warehouse space, and distribution centers. These leases are classified as operating leases with various expiration dates through July 2028. In addition to base rent, the Company is obligated to reimburse certain common area maintenance costs required to operate the facilities. Substantially all the leases include renewal options with varying terms. The Company recognizes rental expense and amortizes tenant improvement allowances on a straight-line basis over the stated lease term, including renewal periods if reasonably assured of being exercised. Total rental expense for the three months ended March 26, 2021 and March 27, 2020, was approximately $3,128 and $2,568, respectively.
14.
Stockholders Equity
Common Stock — Holders of voting common stock are entitled to one vote per share and to receive dividends. The Company had noncontrolling interests of $294 and $316 as of March 26, 2021 and December 25, 2020, respectively, related to a joint venture formed prior to 2018.
Changes in noncontrolling interests each period include net income attributable to noncontrolling interests and cash contributions by minority partners to the Company’s consolidated subsidiaries. There were no cash contributions by minority partners for the three months ended March 26, 2021 or March 27, 2020, respectively.
15.
Loss Per Share
Basic loss per share represents net loss divided by the weighted-average shares outstanding. Diluted loss per share is the same as basic income or loss per share, as the Company had no potentially dilutive securities during either of the three months ended March 26, 2021 or March 27, 2020. The following table presents the calculations of basic and diluted loss per share for the three months ended March 26, 2021 and March 27, 2020:
|
|
|
|
March 26,
2021
|
|
|
March 27,
2020
|
|
|
Net loss attributable to Company
|
|
|
|
|
(6,014)
|
|
|
|
|
|
(18,994)
|
|
|
|
Weighted-average shares outstanding-basic and diluted
|
|
|
|
|
394,778
|
|
|
|
|
|
387,601
|
|
|
|
Loss per share-basic and diluted
|
|
|
|
|
(15.23)
|
|
|
|
|
|
(49.00)
|
|
|
16.
Subsequent Events
In preparing its condensed consolidated financial statements, the Company has evaluated subsequent events through May 21, 2021, which is the date the condensed consolidated financial statements were available to be issued and June 17, 2021, the date on which the condensed consolidated financial statements were reissued.
On May 4, 2021, the Company entered into a Purchase Agreement (the “Purchase Agreement”) pursuant to which it will acquire all of the issued and outstanding shares of ANLA, Inc. (“Access Networks” or “Access”), an enterprise-grade networking solutions provider offering network design, configuration, monitoring and support services and products. The acquisition will enhance the Company’s networking solutions for residential and commercial networks. Under the Purchase Agreement, the Company agreed to a purchase price of up to $38.1 million, consisting of both cash and equity, plus contingent consideration
Snap One Holdings Corp. and Subsidiaries
Notes to the Unaudited Condensed Consolidated Financial Statements
(in thousands, except share and per share amounts)
of up to $2.0 million based upon the achievement of specified financial targets. The acquisition closed on May 28, 2021. The final purchase price and allocation to the net assets acquired is expected to be completed in the second quarter of 2021.
****
|
|
Morgan Stanley
|
|
|
J.P. Morgan
|
|
|
Jefferies
|
|
|
UBS Investment Bank
|
|
BMO Capital MarketsRaymond JamesTruist SecuritiesWilliam Blair
Drexel Hamilton Penserra Securities LLC
R. Seelaus & Co., LLC
Siebert Williams Shank
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than the underwriting discount, payable by the registrant in connection with the sale and distribution of the securities being registered. All amounts are estimated except the Securities and Exchange Commission (the “SEC”) registration fee, the Financial Industry Regulatory Authority (“FINRA”) filing fee and the Nasdaq Global Select Market (the “Nasdaq”) listing fee.
|
|
|
|
Amount To Be Paid
|
|
|
SEC Registration Fee
|
|
|
|
$
|
*
|
|
|
|
FINRA Filing Fee
|
|
|
|
|
*
|
|
|
|
Initial Nasdaq Listing Fee
|
|
|
|
|
*
|
|
|
|
Legal Fees and Expenses
|
|
|
|
|
*
|
|
|
|
Accounting Fees and Expenses
|
|
|
|
|
*
|
|
|
|
Printing Fees and Expenses
|
|
|
|
|
*
|
|
|
|
Blue Sky Fees and Expenses
|
|
|
|
|
*
|
|
|
|
Transfer Agent and Registrar Fees
|
|
|
|
|
*
|
|
|
|
Miscellaneous Expenses
|
|
|
|
|
*
|
|
|
|
Total
|
|
|
|
$
|
*
|
|
|
*
To be provided by amendment.
Item 14. Indemnification of Directors and Officers
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation will provide for this limitation of liability.
Section 145 of the DGCL, provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify such person under Section 145.
Our amended and restated bylaws will provide that we must indemnify and advance expenses to our directors and officers to the full extent authorized by the DGCL.
Further, prior to the completion of the offering, we expect to enter into indemnification agreements with each of our directors and executive officers that may be broader than the specific indemnification provisions contained in our amended and restated bylaws or the DGCL. Such agreements may require us, among other things, to advance expenses and otherwise indemnify our executive officers and directors against certain liabilities that may arise by reason of their status or service as executive officers or directors, to the fullest extent permitted by law. We intend to enter into indemnification agreements with any new directors and executive officers in the future.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, any provision of our amended and restated certificate of incorporation, our bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Notwithstanding the foregoing, we shall not be obligated to indemnify a director or officer in respect of a proceeding (or part thereof) instituted by such director or officer, unless such proceeding (or part thereof) has been authorized by the board of directors pursuant to the applicable procedure outlined in the bylaws.
Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
We expect to maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
The underwriting agreement provides for indemnification by the underwriters of us and our officers and directors, and by us of the underwriters, for certain liabilities arising under the Securities Act or otherwise in connection with this offering.
Item 15. Recent Sales of Unregistered Securities
Since December 31, 2018 the Registrant has granted or issued the following securities of the Registrant which were not registered under the Securities Act:
(1) On August 1, 2019, the Registrant issued 418.45 shares of the Registrant’s common stock, par value $0.01 per share, to Crackle Holdings, L.P., a Delaware limited partnership, in exchange for 25,094.0054 shares of common stock of Control4 Corporation that Crackle Holdings, L.P. had acquired in a previous rollover transaction at a deemed value of $600,000.
(2) On April 24, 2020, the Registrant issued an aggregate of 7,176.85 shares of the Registrant’s common stock to Crackle Holdings, L.P.
None of the foregoing transactions involved any underwriters, underwriting discounts or commissions, or any public offering. Unless otherwise stated, the sales of the above securities were deemed to be exempt from registration under the Securities Act in reliance upon Section 4(a)(2) of the Securities Act as transactions by an issuer not involving any public offering. The recipient of the securities in each of these transactions
represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were placed upon any stock certificates issued in these transactions.
Item 16. Exhibits and Financial Statement Schedules
(a)
Exhibits. See Exhibit Index immediately preceding the signature pages hereto, which is incorporated by reference as if fully set forth herein.
(b)
Financial Statement Schedules. All schedules have been omitted because the information required to be set forth in the schedules is either not applicable or is shown in the financial statements or notes or schedules thereto included in the prospectus.
Item 17. Undertakings
(1)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(2)
The undersigned registrant hereby undertakes that:
(a)
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus as filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(b)
For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
EXHIBIT INDEX
|
Exhibit
Number
|
|
|
Description
|
|
|
|
|
1.1†
|
|
|
|
Form of Underwriting Agreement
|
|
|
|
|
2.1
|
|
|
|
Agreement and Plan of Merger, dated as of June 19, 2017, by and among Crackle Purchaser Corp., Crackle Merger Sub I Corp., Crackle Merger Sub II Corp., General Atlantic (Amplify) Holdco LLC, Amplify Holdings LLC, General Atlantic (Amplify) LLC, GA Escrow, LLC and JWF Rollover, LLC
|
|
|
|
|
3.1
|
|
|
|
|
|
|
|
|
3.2
|
|
|
|
|
|
|
|
|
4.1
|
|
|
|
|
|
|
|
|
5.1
|
|
|
|
|
|
|
|
|
10.1
|
|
|
|
|
|
|
|
|
10.2
|
|
|
|
Credit Agreement, dated as of August 4, 2017 by and among Wirepath LLC, as borrower, Crackle Purchaser Corp. as holdings, the lenders and letter of credit issuers from time to time party thereto, UBS AG, Stamford Branch, as the administrative agent, collateral agent and swingline lender, and the other parties thereto
|
|
|
|
|
10.3
|
|
|
|
Amendment Agreement, dated as of November 1, 2017, to the Credit Agreement, by and among
Wirepath LLC, as borrower, Crackle Purchaser Corp. as holdings, the lenders and letter of credit
issuers from time to time party thereto, UBS AG, Stamford Branch, as the administrative agent,
collateral agent and swingline lender, and the other parties thereto
|
|
|
|
|
10.4
|
|
|
|
Incremental Agreement No. 1, dated as of February 5, 2018, to the Credit Agreement, by and
among Wirepath LLC, as borrower, Crackle Purchaser LLC (f/k/a Crackle Purchaser Corp.), as
holdings, the lenders and letter of credit issuers from time to time party thereto, UBS AG,
Stamford Branch, as the administrative agent, collateral agent and swingline lender, and the other
parties thereto
|
|
|
|
|
10.5
|
|
|
|
Incremental Agreement No. 2, dated as of October 31, 2018, to the Credit Agreement, by and
among Wirepath LLC, as borrower, Crackle Purchaser LLC (f/k/a Crackle Purchaser Corp.), as
holdings, the lenders and letter of credit issuers from time to time party thereto, UBS AG,
Stamford Branch, as the administrative agent, collateral agent and swingline lender, and the other
parties thereto
|
|
|
|
|
10.6
|
|
|
|
Incremental Agreement No. 3, dated as of August 1, 2019, to the Credit Agreement, by and
among Wirepath LLC, as borrower, Crackle Purchaser LLC (f/k/a Crackle Purchaser Corp.), as
holdings, the lenders and letter of credit issuers from time to time party thereto, UBS AG,
Stamford Branch, as the administrative agent, collateral agent and swingline lender, and the other
parties thereto
|
|
|
|
|
10.7*
|
|
|
|
|
|
|
|
|
10.8†*
|
|
|
|
Form of Snap One Holdings Corp. 2021 Incentive Plan
|
|
|
|
|
10.9*
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Form of Option Agreement under the Snap One Holdings Corp. 2021 Incentive Plan
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10.10*
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Form of Restricted Stock Agreement under the Snap One Holdings Corp. 2021 Incentive Plan (Employee)
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Exhibit
Number
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Description
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10.11*
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Form of Restricted Stock Agreement under the Snap One Holdings Corp. 2021 Incentive Plan (Director)
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10.12†*
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Form of Snap One Holdings Corp. 2021 Employee Stock Purchase Plan
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10.13*
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10.14*
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10.15
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10.16*
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Amended and Restated Employment Agreement, dated as of August 4, 2017, by and between Wirepath Home Systems, LLC (d/b/a SnapAV) and John Heyman
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10.17*
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Employment Agreement, dated as of March 22, 2016, by and between Wirepath Home Systems,
LLC (d/b/a SnapAV) and Jeffrey Hindman
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10.18*
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Offer Letter, dated as of August 4, 2017, by and between Wirepath Home Systems, LLC (d/b/a SnapAV) and Jeffrey Hindman
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10.19*
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Employment Agreement, dated as of October 7, 2014, by and between Wirepath Home Systems,
LLC (d/b/a SnapAV) and Michael Carlet
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10.20*
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Offer Letter, dated as of August 4, 2017, by and between Wirepath Home Systems, LLC (d/b/a SnapAV) and Michael Carlet
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21.1
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23.1
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23.2
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24.1
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†
To be filed by amendment.
*
Management contract or compensatory plan or arrangement.
SIGNATURES
Pursuant to the requirements of the Securities Act, we have duly caused this registration statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, North Carolina, on July 2, 2021.
Snap One Holdings Corp.
By:
/s/ John Heyman
Name:
John Heyman
Title:
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John Heyman, Michael Carlet and JD Ellis and each of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, to sign in any and all capacities (including, without limitation, the capacities listed below), the registration statement, any and all amendments (including post-effective amendments) to the registration statement and any and all successor registration statements of Snap One Holdings Corp., including any filings pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done to enable Snap One Holdings Corp. to comply with the provisions of the Securities Act and all the requirements of the Securities and Exchange Commission, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated on July 2, 2021.
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Signature
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Title
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/s/ John Heyman
John Heyman
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Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Michael Carlet
Michael Carlet
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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/s/ Erik Ragatz
Erik Ragatz
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Chairman of the Board
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/s/ Jacob Best
Jacob Best
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Director
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/s/ Annmarie Neal
Annmarie Neal
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Director
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/s/ Martin Plaehn
Martin Plaehn
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Director
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/s/ Adalio Sanchez
Adalio Sanchez
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Director
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/s/ Kenneth R. Wagers III
Kenneth R. Wagers III
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Director
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Exhibit 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
General
atlantic (amplify) holdco llc,
GENERAL ATLANTIC (AMPLIFY) LLC,
amplify
holdings LLC,
CRACKLE
PURCHASER CORP.,
CRACKLE MERGER SUB I CORP.,
CRACKLE MERGER SUB II CORP.,
GA ESCROW, LLC,
as the Seller Representative
AND
JWF ROLLOVER, LLC,
as the Merger Participant Tax Representative
DATED AS OF JUNE 19, 2017
TABLE OF CONTENTS
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Page
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Article 1 DEFINITIONS
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3
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1.1 Definitions
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3
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1.2 Other Capitalized Terms
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15
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1.3 Interpretive Provisions
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18
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Article 2
MERGERS
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19
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2.1 Purchase Price; Blocker Merger; Company Merger
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19
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2.2 Effective Times
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19
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2.3 Effect of Mergers
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20
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2.4 Organizational Documents of the Surviving LLCs
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20
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2.5 Directors and Officers of the Surviving LLCs
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21
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2.6 Effect of the Mergers on Equity Interests
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21
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2.7 Closing Actions
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23
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2.8 Purchase Price Adjustment
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25
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2.9 Delivery of Letter of Transmittal from and after the Closing Date
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29
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2.10 Paying Agent Matters
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29
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2.11 Payment of Deferred Consideration
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29
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2.12 2017 Contingent Value Rights
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30
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2.13 Payments under the Phantom Equity Plan and Withholding
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30
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2.14 Rollover Matters
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31
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2.15 Withholding Rights
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31
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Article 3
THE CLOSING
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31
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3.1 Closing; Closing Date
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31
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3.2 Deliveries by the Company
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32
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3.3 Deliveries by Buyer
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32
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Article 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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33
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4.1 Organization and Qualification
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33
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4.2 Capitalization of the Company
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33
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4.3 Subsidiaries
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34
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4.4 Authority; Binding Obligation
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35
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4.5 No Defaults or Conflicts
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35
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4.6 No Governmental Authorization Required
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36
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4.7 Financial Statements; No Undisclosed Liabilities
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36
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4.8 Intellectual Property
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37
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4.9 Compliance with the Laws
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38
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4.10 Contracts
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39
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4.11 Litigation
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40
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4.12 Taxes
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41
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4.13 Permits
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42
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4.14 Employee Benefit Plans
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43
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4.15 Labor Relations
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44
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4.16 Environmental Compliance
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45
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4.17 Insurance
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45
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4.18 Real Property
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45
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4.19 Affiliate Transactions
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46
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4.20 Absence of Certain Changes or Events
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46
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4.21 Brokers
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46
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4.22 Top Suppliers
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46
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4.23 Exclusivity of Representations
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47
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Article 5
REPRESENTATIONS AND WARRANTIES OF THE BLOCKER SELLER
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47
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5.1 Organization and Qualification
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47
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5.2 Authority; Binding Obligation
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48
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5.3 No Defaults or Conflicts
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48
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5.4 No Governmental Authorization Required
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48
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5.5 Capitalization
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49
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5.6 Compliance With Laws; Litigation
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49
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5.7 Taxes
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49
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5.8 Brokers
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51
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5.9 Exclusivity of Representations
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51
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Article 6
REPRESENTATIONS AND WARRANTIES OF THE PARENT PARTIES
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52
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6.1 Organization
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52
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6.2 Authority; Binding Obligation
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52
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6.3 No Defaults or Conflicts
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52
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6.4 No Authorization or Consents Required
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53
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6.5 Brokers
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53
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6.6 Litigation
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53
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6.7 Reliance
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53
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6.8 Investment Purpose
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53
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6.9 Financing
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54
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Article 7
COVENANTS
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55
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7.1 Conduct of Business of the Company
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55
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7.2 Access to Information; Confidentiality; Public Announcements
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58
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7.3 Filings and Authorizations; Consummation
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59
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7.4 Resignations
|
60
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7.5 Further Assurances
|
60
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7.6 Officer and Director Indemnification and Insurance
|
61
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7.7 Exclusivity
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62
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7.8 Waiver of Conflicts Regarding Representation
|
63
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7.9 Employee Matters
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63
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7.10 Equity Plan Matters
|
64
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7.11 FIRPTA Certificates
|
64
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|
7.12 Access to Books and Records
|
65
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7.13 Blocker Capitalization
|
65
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|
7.14 Tax Matters
|
65
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|
7.15 Financing
|
68
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|
7.16 Financing Assistance
|
69
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|
7.17 Section 280G Matters
|
73
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|
Article 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
|
73
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8.1 Representations and Warranties Accurate
|
74
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8.2 Performance
|
74
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8.3 Officer’s Certificate
|
74
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8.4 Legal Prohibition
|
74
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8.5 HSR Act; Approvals
|
74
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8.6 No Material Adverse Effect
|
75
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8.7 Blocker Capitalization
|
75
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|
Article 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY AND THE BLOCKER SELLER
|
75
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9.1 Representations and Warranties Accurate
|
75
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9.2 Performance
|
75
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9.3 Officer Certificate
|
75
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9.4 Legal Prohibition
|
75
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9.5 HSR Act; Approvals
|
75
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Article 10
TERMINATION
|
76
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10.1 Termination
|
76
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10.2 Survival After Termination
|
77
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10.3 Fees and Expenses Following Termination
|
77
|
|
Article 11
MISCELLANEOUS
|
79
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|
11.1 Nonsurvival of Representations, Warranties and Covenants
|
79
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11.2 Expenses
|
80
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|
11.3 Amendment
|
80
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|
11.4 Entire Agreement
|
80
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|
11.5 Headings
|
80
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|
11.6 Notices
|
80
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11.7 Exhibits and Schedules
|
82
|
|
11.8 Waiver
|
82
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|
11.9 Binding Effect; Assignment
|
82
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|
11.10 No Third Party Beneficiary
|
83
|
|
11.11 Counterparts
|
83
|
|
11.12 Buyer Release
|
83
|
|
11.13 Blocker Seller Release
|
84
|
|
11.14 Governing Law and Jurisdiction
|
85
|
|
11.15 WAIVER OF JURY TRIAL
|
85
|
|
11.16 Conveyance Taxes
|
86
|
|
11.17 Specific Performance
|
86
|
|
11.18 Severability
|
86
|
|
11.19 Limitation on Recourse
|
87
|
|
11.20 Seller Representative Expense Fund
|
87
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|
11.21 Seller Representative
|
88
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|
11.22 Merger Participant Tax Representative
|
89
|
ANNEXES AND EXHIBITS
|
Exhibit A
|
Current Assets and Current Liabilities
|
|
Exhibit B
|
Balance Sheet Rules
|
|
Exhibit C
|
Form of Escrow Agreement
|
|
Exhibit D
|
Form of Member Approval
|
|
|
|
|
Annex I
|
Terms of 2017 Contingent Value Rights
|
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this “Agreement”),
dated as of June 19, 2017, by and among Crackle Purchaser Corp., a Delaware corporation (“Buyer”), Crackle Merger
Sub I Corp., a Delaware corporation and wholly owned subsidiary of Buyer (“Merger Sub I”), Crackle Merger Sub II Corp.,
a Delaware corporation and wholly owned subsidiary of Merger Sub I (“Merger Sub II”, and together with Buyer and Merger
Sub I, the “Parent Parties”), General Atlantic (Amplify) Holdco LLC, a Delaware limited liability company (the “Blocker
Seller”), General Atlantic (Amplify) LLC, a Delaware limited liability company (the “GA Blocker”), Amplify
Holdings LLC, a Delaware limited liability company (the “Company”), GA Escrow, LLC, a Delaware limited liability company,
solely in its capacity as the representative of the Blocker Seller and the Merger Participants (as defined below) (the “Seller
Representative”) and JWF Rollover, LLC, a North Carolina limited liability company, solely in its capacity as the representative
of the Blocker Seller and the Merger Participants with respect to certain tax matters described in Section 7.14 (the “Merger
Participant Tax Representative”).
RECITALS
WHEREAS, the Blocker Seller is the record and beneficial
owner of all of the issued and outstanding equity interests of the GA Blocker (such equity interests, collectively, the “Blocker
Interests”);
WHEREAS, the GA Blocker is the record and beneficial
owner of 1,627,541 Preferred Units (as defined in the Company LLC Agreement) of the Company (the “Blocker Company Units”);
WHEREAS, Buyer wishes to acquire, on the terms and
subject to the conditions set forth in this Agreement, all of the Blocker Interests and the remaining Preferred Units, Common Units (as
defined in the Company LLC Agreement) and Incentive Units of the Company that are not held by the GA Blocker or by Buyer or its Subsidiaries
at the time of the Mergers (as defined below);
WHEREAS, Buyer has formed (i) Merger Sub I, solely
for the purpose of effecting a merger of Merger Sub I with and into the GA Blocker, with the GA Blocker being the surviving limited liability
company (such entity, the “Blocker Surviving LLC”, and such merger, the “Blocker Merger”) on the
terms and subject to the conditions set forth in this Agreement, including Section 264 of the DGCL (as defined below) and Section 18-209
of the DLLCA (as defined below), and (ii) Merger Sub II, solely for the purpose of effecting a merger of Merger Sub II with and into the
Company, with the Company being the surviving limited liability company (such entity, the “Company Surviving LLC”,
and such merger, the “Company Merger”), on the terms and subject to the conditions set forth in this Agreement, including
Section 264 of the DGCL and Section 18-209 of the DLLCA;
WHEREAS, as a result of the (i) Blocker Merger and
the Company Merger (together, the “Mergers”) and (ii) Rollover Contributions (as defined below), Buyer shall own all
of the Blocker Interests and shall own, directly or indirectly, all of the issued and outstanding Preferred Units, Common Units and Incentive
Units of the Company (together with any other equity securities of the Company, the “Company Units”);
WHEREAS, as a condition and material inducement to
the Blocker Seller’s and the Company’s execution and delivery of this Agreement, each of the Guarantors (as defined below),
is executing and delivering to the Company a limited guaranty (each, a “Limited Guaranty”), pursuant to which, and
subject to the terms and conditions thereof, the Guarantors have guaranteed certain of the obligations of the Parent Parties hereunder;
WHEREAS, the managing directors of the GA Blocker
have (i) determined that it is in the best interests of the GA Blocker and its sole member, and declared it advisable, to enter into
this Agreement and (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated hereby, including the Blocker Merger;
WHEREAS, the board of directors of the Company has
unanimously (i) determined that it is in the best interests of the Company and the Company’s equityholders, and declared it
advisable, to enter into this Agreement, (ii) approved the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby, including the Company Merger and (iii) resolved to recommend adoption of this Agreement
by the equityholders of the Company;
WHEREAS, in accordance with Section 7.5
of this Agreement, the Company LLC Agreement (as defined below) and the DLLCA, a majority in interest of the equityholders of the Company
will approve and adopt this Agreement by executing and delivering written consents in the form attached hereto as Exhibit D
(the “Member Approval”);
WHEREAS, the respective boards of directors of Merger
Sub I and Merger Sub II have unanimously (i) determined that it is in the best interests of Merger Sub I and Merger Sub II, as applicable,
and their respective stockholders, and declared it advisable, to enter into this Agreement, (ii) approved the execution, delivery
and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Blocker Merger and the Company
Merger, as applicable, and (iii) resolved to recommend adoption of this Agreement by the stockholders of Merger Sub I and Merger
Sub II, as applicable;
WHEREAS, immediately following the execution of this
Agreement, the sole stockholder of each of Merger Sub I and Merger Sub II will approve and adopt this Agreement by written consent; and
WHEREAS, immediately prior to the consummation of
the transactions contemplated by this Agreement, the Blocker Seller and the GA Blocker will consummate the Blocker Capitalization (as
defined below).
NOW THEREFORE, in consideration
of the foregoing and the respective representations, warranties, covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement agree as follows:
Article 1
DEFINITIONS
1.1
Definitions. The following terms, whenever used herein, shall have the following meanings for all purposes of this Agreement.
“Accounting Methodology” means
GAAP applied on a consistent basis using the accounting principles, methods and practices utilized in preparing the Audited Balance Sheet.
“Acknowledgment Letter” means
a letter agreement, dated as of the date hereof, in the form provided to Buyer prior to the execution of this Agreement, among the holders
of Common Units, the Blocker Seller and Red Ventures.
“Action” means any action, claim,
charge, complaint, examination, hearing, petition, suit, arbitration, mediation or other proceeding, in each case before any Governmental
Authority, whether civil, criminal, administrative or otherwise, in law or in equity.
“Adjustment Escrow Amount” means
$1,398,207.
“Affiliate” means, as to any Person, any
other Person that directly or indirectly controls, is controlled by, or is under common control with such first Person. For purposes of
this definition, “control” of a Person shall mean the power, direct or indirect, to direct or cause the direction of the management
and policies of such Person whether by ownership of voting stock, by Contract or otherwise. Notwithstanding anything to the contrary set
forth in this Agreement, (i) solely for purposes of this Agreement (other than Sections 4.19 and 7.1(a)(xiii), which shall
not be subject to this proviso), no portfolio company of General Atlantic LLC or its Affiliates shall be deemed or treated as an Affiliate
of the Blocker Seller or the Company and (ii) solely for purposes of this Agreement (other than Sections 7.3(e) and 7.3(f),
which shall not be subject to this proviso), no portfolio company of Hellman & Friedman LLC or its Affiliates shall be deemed or treated
as an Affiliate of any Parent Party.
“Aggregate Closing Date
Consideration” means an amount equal to the Enterprise Value (a) plus the sum of (i) the Working Capital
Overage, if any, and (ii) Closing Cash, and (b) minus the sum of (i) the Working Capital Underage, if any,
(ii) Closing Indebtedness, (iii) the Seller Expenses, (iv) the Adjustment Escrow Amount and (v) the Seller Representative
Expense Fund.
“Antitrust Laws” means the HSR
Act, the Sherman Act, the Clayton Act, the Federal Trade Commission Act, and any other United States federal or state or foreign Laws
that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.
“Audited Balance Sheet” shall
have the meaning as set forth in the definition of Financial Statements.
“Audited Financial Statements”
shall have the meaning as set forth in the definition of Financial Statements.
“Balance Sheet Rules” means, collectively,
the Accounting Methodology and the rules set forth on Exhibit B attached hereto; provided that in the event of any conflict
between the Accounting Methodology and the rules set forth on Exhibit B, the rules set forth on Exhibit B shall apply.
“Blocker Note” means that certain
promissory note dated as of June 13, 2013 between the GA Blocker, as the borrower, and Blocker Seller, as the lender, for an aggregate
principal amount of $75,000,000 plus interest accrued thereon.
“Business Day” means any day that
is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by Law
or executive order to close.
“Closing Cash” means all cash
and cash equivalents (including marketable securities but excluding restricted cash, if any) of the Company and the Company Subsidiaries
determined on a consolidated basis as of 11:59 p.m. New York City time on the day immediately prior to the Closing Date, without giving
effect to the transactions contemplated hereby, calculated in accordance with the Balance Sheet Rules and (a) net of any outstanding checks
written by, or wires in transit issued by, the Company or any of its Subsidiaries and (b) not including any amounts: (i) in respect of
any security deposits, (ii) attributable to credit card receivables accounted for in the Company’s and its Subsidiaries credit card
deposits in transit and credit card clearing accounts or (iii) held in escrow in connection with (x) the transactions contemplated by
that certain Stock Purchase Agreement, dated as of December 5, 2016, by and among Wirepath Sub, Autonomic Controls, Inc. and the other
parties named therein, (y) the Visualint Acquisition or (z) any other acquisition by the Company or any of its Subsidiaries.
“Closing Indebtedness” means the
amount of Indebtedness of the Company and the Company Subsidiaries determined on a consolidated basis as of immediately prior to the Closing
on the Closing Date.
“Closing Working Capital” means
the Working Capital as of 11:59 pm New York City time on the day immediately prior to the Closing Date.
“Code” means the Internal Revenue
Code of 1986.
“Commitment Letters” means the
Equity Commitment Letter and the Debt Commitment Letter.
“Company Affiliated Person” means:
(i) any director, manager or executive officer of the Company Group; (ii) the Blocker Seller; (iii) any director, manager or executive
officer of the Blocker Seller; (iv) any spouse or child of any of the individuals referenced in the foregoing clauses; or (v) any Affiliate
of any Person referenced in the foregoing clauses.
“Company Group” means the GA Blocker,
the Company and the Company Subsidiaries.
“Company LLC Agreement” means
the Third Amended and Restated Limited Liability Company Agreement of the Company, dated as of January 26, 2015, as amended, supplemented
or otherwise modified from time to time prior to the date hereof.
“Contract” means any contract,
agreement, lease, license, note, indenture or other binding commitment.
“Current Assets” means, as of
any date, the consolidated current assets of Wirepath and its Subsidiaries set forth under “Current Assets” in the Interim
Balance Sheet, subject to the modifications set forth in Exhibit A attached hereto.
“Current Liabilities” means, as
of any date, the consolidated current liabilities of Wirepath and its Subsidiaries set forth under “Current Liabilities” in
the Interim Balance Sheet, subject to the modifications set forth in Exhibit A attached hereto. For the avoidance of doubt, Current
Liabilities shall exclude all Seller Expenses.
“CVR Payment” has the meaning
set forth in the Company LLC Agreement, which amount shall be determined in accordance with the terms of the EPA.
“date hereof” and “date
of this Agreement” means the date first written above.
“Debt Commitment Letter” means
the debt commitment letter with respect to the Debt Financing, together with all exhibits, schedules or amendments thereto, from each
of the financial institutions identified therein, dated as of the date hereof.
“Debt Financing Sources” means
the lenders, arrangers and bookrunners (or any of their Affiliates) party from time to time to the Debt Commitment Letter or joinders
thereto.
“Deferred Blocker Consideration”
means a cash amount equal to $1,398,207.
“Deferred Company Consideration”
means a cash amount equal to (a) $3,601,793 over (b) the excess (if any) of (i) the Buyer Adjustment Amount, if any, over
(ii) the Adjustment Escrow Amount plus any interest accrued thereon.
“DGCL” means the Delaware General
Corporation Law.
“Distribution Waterfall” means
an allocation of (a) the Aggregate Closing Date Consideration Estimate and (b) the Phantom Unit Payment, each among the Blocker Seller,
the Merger Participants and each holder of Phantom Units, calculated in accordance with the Company LLC Agreement, the Phantom Equity
Plan and Section 7.10 of this Agreement, the Incentive Plan and the Incentive Unit award agreements under the Incentive Plan,
as applicable. For purposes of the Distribution Waterfall, (i) the allocation of the Aggregate Closing Date Consideration Estimate to
the holders of Company Units under the Company LLC Agreement shall, subject to clause (ii) below, be determined by reference to the amounts
that would be received by such holders if an amount of cash equal to the Aggregate Closing Date Consideration Estimate were distributed
by the Company immediately prior to the Closing pursuant to Section 6.4 of the Company LLC Agreement, assuming that all Incentive
Units and Phantom Units that will vest in connection with the Closing had vested immediately prior to such distribution, (ii) for purposes
of the preceding clause (i), all Rollover Units held by Buyer and its Subsidiaries will be taken into account as if they were entitled
to receive such distribution and (iii) the Base Blocker Seller Consideration will equal the amount that would be received by the GA Blocker
in accordance with the preceding clause (i).
“Distribution Waterfall Schedule”
means the schedule of the Distribution Waterfall to be delivered by the Company to the Buyer at least three (3) Business Days prior
to the Closing Date, as it may be revised pursuant to Section 2.8(a).
“DLLCA” means the Delaware Limited
Liability Company Act.
“Encumbrance” means any and all
liens, encumbrances, charges, mortgages, options, pledges, restrictions on transfer, security interests, hypothecations, easements, rights-of-way
or encroachments of any nature whatsoever, whether voluntarily incurred or arising by operation of law.
“Enterprise Value” means an amount
equal to $635,000,000.
“Environment” means any environmental
medium or natural resource, including ambient air, indoor air, surface water, groundwater, drinking water, sediment, surface and subsurface
strata and plant and animal life including biota, fish and wildlife.
“Environmental Claims” means any
written claims, notice of noncompliance or violation or legal proceedings by any Governmental Authority or Person alleging liability arising
under any Environmental Law.
“Environmental
Laws” means any applicable Law relating to pollution or protection of the Environment, including any Law relating to the
exposure to or use, transportation, storage, disposal, release or threatened release of any Hazardous Substance.
“EPA” means the Equity Purchase
Agreement, dated as of May 23, 2013 (as amended), among the Company and the other parties thereto.
“Equity Commitment Letter” means
the equity commitment letter delivered from the Guarantors to Buyer, dated as of the date hereof.
“ERISA” means the Employee Retirement
Income Security Act of 1974.
“Escrow Agent” means Citibank,
N.A. (or any other escrow agent mutually agreed by the parties).
“Escrow Agreement” means the Escrow
Agreement in substantially the form of Exhibit C hereto, subject to such changes as may be required by the Escrow Agent.
“Financial Statements” means (i) the
audited consolidated balance sheet of Wirepath and its Subsidiaries (the “Audited Balance Sheet”), and the related
consolidated statement of operations, statement of members’ equity and statement of cash flows of Wirepath and its Subsidiaries
for the years ended December 31, 2016 and December 31, 2015, together with the notes and schedules thereto (the “Audited
Financial Statements”) and (ii) the unaudited consolidated balance sheet of Wirepath and its Subsidiaries as of March 31,
2017 (the “Interim Balance Sheet”) and the related consolidated statement of operations, statement of members’
equity and statement of cash flows of Wirepath and its Subsidiaries for the three (3) months ended March 31, 2017 (the “Unaudited
Financial Statements”).
“Fraud” means an actual and intentional
misrepresentation of a fact with respect to any representation or warranty in this Agreement made by the Person making such representation
or warranty or any knowing and intentional breach of this Agreement. For the avoidance of doubt, Fraud does not include any fraud claim
based on any torts based on negligence or recklessness.
“Fundamental Representations”
means the representations and warranties of the Company set forth in: Section 4.1(a)(i) (Organization and Qualification)
(solely as Section 4.1(a)(i) applies to the Company), Section 4.2 (Capitalization of the Company) and Section 4.4
(Authority; Binding Obligation).
“GAAP” means United States generally
accepted accounting principles.
“Governmental Authority”
means any nation or government, any state, province, municipal or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administration functions of or pertaining to government, or any government
authority, agency, department, board, tribunal, commission or instrumentality of the United States of America, any foreign
government, any state of the United States of America, or any municipality or other political subdivision thereof, and any court,
tribunal or arbitrator(s) of competent jurisdiction.
“Guarantor” or “Guarantors”
means Hellman & Friedman Capital Partners VIII, L.P., a Cayman Islands exempted limited partnership, Hellman & Friedman Capital
Partners VIII (Parallel), L.P., a Cayman Islands exempted limited partnership, HFCP VIII (Parallel-A), L.P., a Delaware limited partnership,
H&F Executives VIII, L.P., a Cayman Islands exempted limited partnership and H&F Associates VIII, L.P., a Cayman Islands exempted
limited partnership.
“Hazardous Substance” means (a)
any substance defined by or regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601
et seq., the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., the Clean Water Act, 33 U.S.C. §1251
et seq., the Clean Air Act, 42 U.S.C. §7401 et seq., the Toxic Substances Control Act, 15 U.S.C. §2601 et seq., the
Safe Drinking Water Act, 42 U.S.C. §300f et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §1801 et seq.,
the Emergency Planning and Community Right to Know Act, 42 U.S.C. §11001 et seq., the Oil Pollution Act, 15 U.S.C. §2601
et seq., and any state or local equivalents thereof or (b) any other material, chemical or substance, exposure to which is prohibited,
limited or regulated by, or which could give rise to liability under, any applicable Environmental Law.
“HSR Act” means the Hart-Scott-Rodino
Antitrust Improvements Act of 1976.
“Incentive Plan” means the Amplify
Holdings, LLC Equity Incentive Plan.
“Incentive Units” means any and
all Incentive Units of the Company issued and outstanding under the Incentive Plan.
“Indebtedness”
means, of any Person, without duplication, (i) indebtedness for borrowed money or indebtedness issued or incurred in
substitution or exchange for indebtedness for borrowed money, (ii) amounts owing as deferred purchase price for property or
services, including all seller notes and “earn-out” payments (including, that certain promissory note issued in
connection with the Visualint Acquisition), in each case under this clause (ii), as determined in accordance with the Balance Sheet
Rules, (iii) indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security (including
the Loan Agreement), (iv) obligations under any performance bond or letter of credit, but only to the extent drawn or called
prior to the Closing, (v) all capitalized lease obligations as determined in accordance with the Balance Sheet Rules,
(vi) all obligations payable upon settlement or termination on the Closing Date of any obligations of the Company or any of its
Subsidiaries under interest rate swap, currency swap, forward currency, derivative or interest rate contracts or other interest
rate, currency or hedging arrangements, (vii) guarantees with respect to any indebtedness of any other Person of a type described in
clauses (i) through (vi) above and (viii) for clauses (i) through (vii) above, all accrued
interest thereon, if any, and any termination fees, prepayment penalties, “breakage” cost or similar payments associated
with the repayments of such Indebtedness on the Closing Date to the extent paid on the Closing Date. For the avoidance of doubt,
Indebtedness shall not include (A) any obligations under any performance bond or letter of credit to the extent undrawn or
uncalled, (B) any intercompany Indebtedness of the Company and the Company Subsidiaries, (C) any Indebtedness incurred by Buyer
and its Affiliates (and subsequently assumed by the Company or any Company Subsidiary) on the Closing Date, (D) any endorsement
of negotiable instruments for collection in the ordinary course of business (E) any Indebtedness included in the calculation of
Current Liabilities in the determination of Closing Working Capital and (F) any Seller Expenses.
“Intellectual Property” means
all worldwide intellectual property rights, including patents, patent applications, trademarks and service marks, trademark and service
mark applications, trade names, logos, URLs and Internet domain names, social and mobile media identifiers, copyrights, works of authorship,
Software, proprietary know-how and trade secrets, methods and processes.
“Interim Balance Sheet” shall
have the meaning as set forth in the definition of Financial Statements.
“IRS” means the United States
Internal Revenue Service.
“knowledge of Buyer” or any similar
phrase means the actual knowledge of Eric Ragatz, Ben Farkas and Jacob Best, after reasonable inquiry.
“knowledge of the Company” or
any similar phrase means the actual knowledge of John Heyman, Adam Levy, Jeff Hindman, Carlyle Taylor, Galen Paul Hess, Mike Carlet and
Joseph Topinka, after reasonable inquiry.
“Law(s)” means any law (including
common law), statute, regulation, treaty, code, ordinance, policy, rule or other requirement of any Governmental Authority.
“Loan Agreement” means that certain
Credit Agreement, dated as of December 21, 2016, as amended, supplemented or otherwise modified from time to time prior to the date hereof,
by and among Wirepath, as holdings, Wirepath Sub, as the borrower, the lenders from time to time party thereto referred to therein, Antares
Capital LP, as the administrative agent and collateral agent and the other parties thereto.
“Marketing
Period” means the first period of fifteen (15) consecutive Business Days commencing on or after July 5, 2017 and
throughout which (a) Buyer shall have the Required Financial Information, (b) nothing has occurred and no condition exists that
would cause any of the conditions set forth in Article 8 (other than Section 8.5) to fail to be satisfied,
assuming that the Closing Date were to be scheduled for any time during such fifteen (15) consecutive Business Day period and (c)
during the last two (2) Business Days of such fifteen (15) consecutive Business Day period the conditions set forth in Section 8.5
shall have been satisfied; provided, however, that (i) if such fifteen (15) consecutive Business Day period has not
been completed on or prior to August 18, 2017, then such period shall be deemed to have not commenced prior to September 5, 2017 and
(ii) the Marketing Period shall be deemed not to have commenced if, prior to the completion of such fifteen (15) consecutive
Business Day period, (A) independent auditors of Wirepath shall have withdrawn its audit opinion with respect to any year-end
audited financial statements of Wirepath and its Subsidiaries set forth in the Required Financial Information in which case the
Marketing Period shall be deemed not to commence at the earliest unless and until such independent auditors or another nationally
recognized independent accounting firm reasonably acceptable to Buyer has issued an unqualified audit opinion with respect to such
financial statements or (B) any of the financial statements of Wirepath and its Subsidiaries included in the Required Financial
Information shall have been restated or the Company or any of its Affiliates shall have determined or publicly announced that a
restatement of any financial statements of the Wirepath and its Subsidiaries included in the Required Financial Information is
required, in which case the Marketing Period shall be deemed not to commence at the earliest unless and until such restatement has
been completed and the Required Financial Information has subsequently been amended and delivered to Buyer or the Company and its
Affiliates have determined in writing or publicly announced, as applicable, that no such restatement shall be required; provided,
that, if at any time the Company shall in good faith believe that it has provided the Required Financial Information, it may deliver
to Buyer a written notice to that effect (stating when it believes it completed such delivery), in which case the Company shall be
deemed to have complied with clause (a) of this definition as of the date specified in such notice as to the date such delivery was
completed unless Buyer in good faith reasonably believes the Company has not completed the delivery of the Required Financial
Information and, within either three (3) Business Days after the delivery of such notice by the Company if such notice is delivered
on any day prior to 12:01 p.m. New York City time on such day or four (4) Business Days after the delivery of such notice by the
Company if such notice is delivered on any day at or after 12:01 p.m. New York City time on such day, delivers a written notice to
such party to that effect (stating with reasonable specificity the extent to which such Required Financial Information has not been
delivered).
“Material Adverse
Effect” means any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate,
has had or would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise),
results of operations or assets of the Company and the Company Subsidiaries, taken as a whole; provided, however, that
“Material Adverse Effect” shall not include effects on such business, condition (financial or otherwise), results of
operations or assets arising out of or attributable to (i) any change, effect, event, occurrence, state of facts or development
that generally affects the industries in which the Company and the Company Subsidiaries operate (including legal and regulatory
changes), (ii) any regional, national or international economic, financial, social or political change, event, occurrence,
state of facts or development, (iii) effects resulting from changes in the financial, banking or securities markets (including
in each of clauses (i) and (ii) above, and this clause (iii) above, any effects or conditions resulting
from an outbreak or escalation of hostilities, acts of terrorism, political instability or other regional, national or international
calamity, crisis or emergency, or any governmental or other response to any of the foregoing, in each case whether or not involving
the United States), (iv) effects arising from changes in Laws or accounting principles, including from the adoption or addition
of any new Laws or the rescission, expiration or retirement of any current Law, (v) effects relating to any acts of God,
including any natural disaster such as a hurricane or earthquake, (vi) effects relating to the identity of Buyer or its
Affiliates, (vii) effects resulting from compliance with the terms and conditions of this Agreement (other than the first sentence
of Section 7.1(a)) by the Blocker Seller, the Company or any Company Subsidiary, or (viii) any failure by the Company or
any of the Company Subsidiaries to meet any internal or published projections, forecasts or predications of revenues, earnings or
cash flows for any period (although this clause (viii) shall not apply to the facts and circumstances that may have given
rise or contributed to any such failure); provided, further, that, with respect to each of clauses (i), (ii), (iii), (iv)
and (v) above, any such change, effect, event, occurrence, state of facts or development shall only be disregarded and not
taken into account in determining whether a Material Adverse Effect has occurred to the extent that such change, effect, event,
occurrence, state of facts or development does not have a materially disproportionate effect on the Company and the Company
Subsidiaries, taken as a whole, relative to other participants in the industry in which the Company and the Company Subsidiaries
participate.
“Merger Participant Closing Date Consideration”
means the amount of the Aggregate Closing Date Consideration Estimate that is allocable to the Merger Participants as determined in accordance
with the Distribution Waterfall Schedule.
“Merger Participants” means the
holders of Company Units other than (i) the GA Blocker and (ii) for purposes of Section 2.7(a)(ii), the Rollover Sellers,
solely with respect to their respective Rollover Units.
“Paying Agent”
means a paying agent selected by the Seller Representative and reasonably acceptable to Buyer.
“Paying Agent Agreement” means
an agreement by and between the Paying Agent, Buyer, the Company and the Seller Representative, in a form reasonably acceptable to Buyer
and the Company.
“Permitted Encumbrances”
means (i) Encumbrances securing the obligations of the Company and Company Subsidiaries pursuant to the Loan Agreement (which
Encumbrances shall be removed on the Closing Date), (ii) Encumbrances disclosed in the Audited Financial Statements or any
schedules to this Agreement, (iii) Encumbrances for Taxes, assessments and other government charges not yet due and payable or
which are being contested in good faith by appropriate proceedings, (iv) mechanics’, workmen’s, repairmen’s,
warehousemen’s, carriers’ or other like Encumbrances arising in the ordinary course of business of the Company and the
Company Subsidiaries, (v) Encumbrances relating to the transferability of securities under applicable securities Laws,
(vi) Encumbrances securing rental payments under capitalized leases, (vii) Encumbrances in favor of the lessors under the
Leases, or encumbering the fee simple interest (or any superior leasehold interest) in the Leased Property, (viii) zoning,
entitlement, building and other land use regulations and codes imposed by any Governmental Authority having jurisdiction over the
Leased Property, (ix) any condition that may be shown by a current and accurate survey, or that would be apparent as part of a
physical inspection, of the applicable parcel of real property, in each case which does not materially adversely interfere with the
present use of the parcel of real property it affects, (x) defects, exceptions, restrictions, easements, rights-of-way and other
non-monetary Encumbrances on real property that do not materially detract from the current use of the applicable asset or Leased
Property and (xi) non-exclusive licenses of Intellectual Property rights granted in the ordinary course of business.
“Person” means any individual,
corporation (including any not for profit corporation), general or limited partnership, limited liability partnership, joint venture,
estate, trust, firm, company (including any limited liability company or joint stock company), association, organization, entity or Governmental
Authority.
“Personal Data” means any information
that, alone or in combination with other information held by the Company or the Company Subsidiaries, allows the identification of or
contact with a Person or can be used to identify a Person.
“Phantom Equity Plan” means the
Wirepath Home Systems, LLC Phantom Equity Plan.
“Phantom Unit Future Bonus Rights”
means the rights to receive payments scheduled to be made to Phantom Unit holders in December 2017 in connection with the Company’s
December 2016 recapitalization.
“Pre-Closing Tax Period” means
any taxable period ending on or before the Closing Date.
“Pro Rata Share” means, with respect
to the Blocker Seller or any Merger Participant, as the case may be, the amount, expressed as a percentage, equal to the applicable percentage
set forth opposite such Person’s name on the Pro Rata Share Schedule, which percentages shall be calculated: (a) in the case of
Blocker Seller, the number of Company Units owned of record by the GA Blocker immediately prior to the Closing divided by the number of
Outstanding Units (as defined below) and (b) in respect of each Merger Participant the quotient of (A) the number of Company Units held
of record by such Merger Participant immediately prior to the Closing (including in respect of each Rollover Seller, the number of such
Rollover Seller’s Rollover Units) excluding any unvested Incentive Units held of record by such Merger Participant immediately prior
to the Closing that will not vest as a result of the transactions contemplated by this Agreement divided by (B) the number of Outstanding
Units. “Outstanding Units” are all Preferred Units, Common Units and all Incentive Units that are vested or will vest
as a result of the transactions contemplated by this Agreement (including all Rollover Units), in each case that are outstanding immediately
prior to the Closing; provided, that the aggregate Pro Rata Shares of the Blocker Seller and all of the Merger Participants shall
equal 100%.
“Pro Rata Share Schedule”
means the schedule setting forth the Pro Rata Shares of the Blocker Seller and each Merger Participant (including the Rollover
Sellers) to be delivered by the Company to the Buyer at least three (3) Business Days prior to the Closing Date, as it may be
revised pursuant to Section 2.8(a).
“Red Ventures” means Red Ventures,
LLC, a Delaware limited liability company.
“Representatives” means, with
respect to any Person, any director, manager, officer, agent, employee, general partner, member, stockholder, advisor or representative
of such Person.
“Rollover Agreements” means the
rollover agreements entered into by Buyer or its Affiliates, on the one hand, and each Rollover Seller, on the other hand.
“Rollover Contributions” means
the contribution of the Rollover Units held by each Rollover Seller to Buyer or its Affiliates (and any additional direct or indirect
contributions of the Rollover Units by such transferee to the GA Blocker) in accordance with any Rollover Agreements.
“Rollover Seller” means any holder
of Company Units that enters into an agreement with Buyer or its Affiliates providing for the contribution by such holder of Company Units
to Buyer on the Closing Date prior to the Closing.
“Rollover Units” means, collectively,
the Company Units held by each Rollover Seller to be contributed to Buyer or its Affiliates in accordance with any Rollover Agreements.
“Seller Expenses” means,
without duplication, (i) the legal, accounting, financial advisory, and other advisory, transaction, consulting or other fees and
expenses incurred or otherwise payable by the Company Group, the Blocker Seller or the Seller Representative in connection with the
transactions contemplated by this Agreement, including the fees of counsel to the holders of the Common Units, (ii) any and all stay
bonuses, sale bonuses, retention payments, transaction bonuses (including those referenced on Schedule 4.16(g)),
change-in-control payments, all payments under the Phantom Equity Plan including all Phantom Unit Payments, any payments required to
be made pursuant to the Phantom Unit Future Bonus Rights that are not terminated pursuant to Section 7.10(b))),
synthetic equity payments or other similar amounts payable by the Company Group to any director, manager, officer or employee of, or
consultant to, the Company Group in connection with the consummation of the transactions contemplated by this Agreement, (iii) the
employer’s portion of all payroll Taxes payable in connection with the items in clause (ii), (iv) fifty-percent (50%) of all
costs, fees and expenses of the Paying Agent pursuant to the Paying Agent Agreement, (v) all costs, fees, expenses and any other
payments, if any, payable or reimbursable by or on behalf of the Company Group pursuant to any management agreement, monitoring
agreement, transaction and advisory services agreement or other similar Contract, (vi) the payments set forth on Schedule 1.1
and (vii) the aggregate amount of commitments to make future employee loans in respect of Incentive Units which are not terminated
on or prior to the Closing Date with no future obligation or liability of the Company or its Subsidiaries, in each of the foregoing
cases, to the extent not paid (or in the case of clause (vii) repaid or cancelled without future obligations of the Company) prior
to the Closing Date.
“Seller Representative Expense Account”
means the account maintained by the Seller Representative into which the payment required in accordance with Section 2.7(a)(iv)
shall be made and any successor account in which the Seller Representative Expense Fund shall be held by the Seller Representative.
“Seller Representative Expense Fund”
means $500,000, and any earnings on such amount, as such amount may be reduced from time to time by payments made therefrom in accordance
with the terms of this Agreement.
“Software” means computer software
programs, including all source code, object code, specifications, designs and documentation therefor.
“Straddle Period” means any taxable
period that includes, but does not end on, the Closing Date.
“Subsidiary” means, with respect
to a specified Person, any corporation, partnership, limited liability company, limited liability partnership, joint venture or other
legal entity of which the specified Person (either alone or through or together with any other Subsidiary) owns, directly or indirectly,
more than 50% of the voting stock or other equity or partnership interests the holders of which are generally entitled to vote for the
election of the board of directors or other governing body, of such legal entity, its general partner or its managing member, or of which
the specified Person controls the management.
“Surviving LLCs” means the Blocker
Surviving LLC and the Company Surviving LLC.
“Tax” means all federal, state,
county, local, municipal, foreign and other taxes, assessments, duties or similar charges of any kind whatsoever, including all interest,
penalties and additions imposed with respect to such amounts, imposed by any Governmental Authority.
“Tax Representative” means (i)
in the case of matters that relate to the Intended Tax Treatment described in Section 7.14(e)(i) or (ii) or that otherwise
relate to payments before the Closing by the GA Blocker to the Blocker Seller in respect of the Blocker Interests or the Blocker Note,
the Seller Representative, and (ii) otherwise, the Merger Participant Tax Representative.
“Tax Returns” means any report,
declaration, return, information return, claim for refund, election, disclosure, estimate or statement required to be supplied to a Governmental
Authority in connection with Taxes, including any schedule or attachment thereto, and including any amendments thereof.
“Transaction Tax Deductions”
means, without duplication, the following items to the extent such items are deductible for U.S. federal income tax purposes: (i) Seller
Expenses and (ii) all fees, expenses and interest (including amounts treated as interest for U.S. federal income Tax purposes, but excluding
any interest that accrued under the terms of the applicable debt instrument through the Closing Date), original issue discount, unamortized
debt financing costs, breakage fees, tender premiums, consent fees, redemption, retirement or make-whole payments, defeasance in excess
of par or similar amounts accrued or paid in connection with the repayment of the Indebtedness of the Company Group in connection with
the Closing. The parties shall apply the safe harbor election set forth in Internal Revenue Service Revenue Procedure 2011-29 to determine
the amount of any success-based fees for purposes of any financial advisory fees included in clause (i) above.
“Treasury Regulations” means the
Treasury regulations promulgated under the Code.
“Unaudited Financial Statements”
shall have the meaning as set forth in the definition of Financial Statements.
“Visualint Acquisition” means
the transactions contemplated by that certain Asset Purchase Agreement, dated as of November 16, 2016, by and among Wirepath Sub, Cortez
Connect, Inc. and the other parties named therein.
“Wirepath” means Wirepath Home
Systems Holdco LLC.
“Wirepath Sub” means Wirepath
Home Systems, LLC.
“Working Capital” means, at any
date, all Current Assets minus all Current Liabilities as of such date.
“Working Capital Overage” shall
exist when (and shall be equal to the amount by which) the Working Capital Estimate exceeds the Working Capital Target Amount.
“Working Capital Target Amount”
means an amount equal to $36,500,000.
“Working Capital Underage” shall
exist when (and shall be equal to the amount by which) the Working Capital Target Amount exceeds the Working Capital Estimate.
1.2
Other Capitalized Terms. The following terms shall have the meanings specified in the indicated Section of this Agreement:
|
Term
|
Section
|
|
2017 Contingent Value Rights
|
2.12
|
|
9100 Relief
|
7.14(f)
|
|
Access and Assistance Limitations
|
7.2(a)
|
|
Accounting Firm
|
2.8(c)
|
|
Term
|
Section
|
|
Additional Consideration Payment
|
2.8(e)(i)
|
|
Administrative Costs
|
11.20(a)
|
|
Aggregate Closing Date Consideration Estimate
|
2.8(a)
|
|
Agreement
|
Preamble
|
|
Alternative Transaction
|
7.7
|
|
Base Blocker Seller Consideration
|
2.6(a)(i)
|
|
Blocker Capitalization
|
7.13
|
|
Blocker Certificate of Merger
|
2.2(a)
|
|
Blocker Company Units
|
Recitals
|
|
Blocker Interests
|
Recitals
|
|
Blocker Merger
|
Recitals
|
|
Blocker Merger Effective Time
|
2.2(a)
|
|
Blocker Seller
|
Preamble
|
|
Blocker Seller Officer’s Certificate
|
8.3
|
|
Blocker Surviving LLC
|
Recitals
|
|
Buyer
|
Preamble
|
|
Buyer Adjustment Amount
|
2.8(e)(ii)
|
|
Buyer Adjustment Cap
|
2.8(e)(i)
|
|
Buyer Officer’s Certificate
|
9.3
|
|
Buyer Related Parties
|
10.3(c)
|
|
Buyer Termination Fee
|
10.3(a)
|
|
Closing
|
3.1
|
|
Closing Date
|
3.1
|
|
Company
|
Preamble
|
|
Company Certificate of Merger
|
2.2(b)
|
|
Company Merger
|
Recitals
|
|
Company Merger Effective Time
|
2.2(b)
|
|
Company Officer’s Certificate
|
8.3
|
|
Company Plans
|
4.14(a)
|
|
Company Related Parties
|
10.3(c)
|
|
Company Subsidiary
|
4.3(a)
|
|
Company Surviving LLC
|
Recitals
|
|
Company Units
|
Recitals
|
|
Confidential Information
|
7.2(b)
|
|
Confidentiality Agreement
|
7.2(b)
|
|
Consideration Elements
|
2.8(a)
|
|
Debt Financing
|
6.9
|
|
Debt Financing Commitments
|
6.9
|
|
Deferred Consideration
|
2.11(b)
|
|
Equitable Exceptions
|
4.4
|
|
Equity Financing
|
6.9
|
|
Equity Financing Commitments
|
6.9
|
|
Final Aggregate Closing Date Consideration
|
2.8(d)
|
|
Financing
|
6.9
|
|
Financing Commitments
|
6.9
|
|
Term
|
Section
|
|
FIRPTA Certificates
|
7.11
|
|
GA Blocker
|
Preamble
|
|
Indemnified Parties
|
7.6(a)
|
|
Infringing
|
4.8(c)
|
|
Insurance Policies
|
4.17
|
|
Intended Tax Treatment
|
7.14(e)
|
|
Leased Property
|
4.18
|
|
Leases
|
4.18
|
|
Letter of Transmittal
|
2.9(a)
|
|
Limited Guaranty
|
Recitals
|
|
Loan Agreement Payoff Amount
|
7.16(a)(vi)
|
|
Losses
|
7.6(b)
|
|
Material Contracts
|
4.10(k)
|
|
Member Approval
|
Recitals
|
|
Mergers
|
Recitals
|
|
Merger Sub I
|
Preamble
|
|
Merger Sub II
|
Preamble
|
|
Merger Participant Tax Representative
|
Preamble
|
|
Merger Participant Tax Representative Matters
|
11.22(a)
|
|
Multiemployer Plan
|
4.14(a)
|
|
Notice of Disagreement
|
2.8(c)
|
|
Owned Intellectual Property
|
4.8(a)
|
|
Parent Parties
|
Preamble
|
|
Partnership Audit Rules
|
4.12(m)
|
|
Paul, Weiss
|
3.1
|
|
Payoff Letter
|
7.16(a)(vi)
|
|
Permits
|
4.13
|
|
Phantom Unit Payment
|
7.10(b)
|
|
Phantom Units
|
7.10(b)
|
|
Preliminary Closing Statement
|
2.8(a)
|
|
Remaining Funds
|
11.20(c)
|
|
Required Financial Information
|
7.16(a)(i)
|
|
Securities Act
|
6.8
|
|
Seller Released Parties
|
11.12
|
|
Seller Releasing Parties
|
11.13
|
|
Seller Representative
|
Preamble
|
|
Specified Tax Matters
|
7.14(b)
|
|
Statement
|
2.8(b)
|
|
Tax Contest
|
7.14(c)
|
|
Termination Date
|
10.1(ii)
|
|
Working Capital Estimate
|
2.8(a)
|
1.3
Interpretive Provisions. Unless the express context otherwise requires:
(a)
the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(b)
terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa;
(c)
the terms “Dollars” and “$” mean United States Dollars;
(d)
references herein to a specific Section, Subsection, Recital, Schedule or Exhibit shall refer, respectively, to Sections,
Subsections, Recitals, Schedules or Exhibits of this Agreement;
(e)
wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall
be deemed to be followed by the words “without limitation”;
(f)
references herein to any gender shall include each other gender;
(g)
references to “written” or “in writing” include in electronic form;
(h)
references herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors
and assigns; provided, however, that nothing contained in this clause (h) is intended to authorize any assignment or transfer
not otherwise permitted by this Agreement;
(i)
references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity;
(j)
references herein to any Contract (including this Agreement) mean such Contract as amended, supplemented or modified from time
to time in accordance with the terms thereof, and to the extent applicable, hereof;
(k)
with respect to the determination of any period of time, the word “from” means “from and including” and
the words “to” and “until” each means “to but excluding”;
(l)
the word “or” shall be disjunctive but not exclusive;
(m)
references herein to any Law or any license mean such Law or license as amended, modified, codified, reenacted, supplemented or
superseded in whole or in part, and in effect from time to time;
(n)
references herein to any Law shall be deemed also to refer to all rules and regulations promulgated thereunder;
(o)
references to “ordinary course” or “ordinary course of business” means ordinary course of business consistent
with past practice; and
(p)
in the event of a conflict between the Escrow Agreement or the Paying Agent Agreement and any agreement of the parties hereto in
this Agreement, such agreement of the parties hereto in this Agreement shall govern.
The parties to this Agreement have been represented by counsel during
the negotiation and execution of this Agreement and waive the application of any Laws or rule of construction providing that ambiguities
in any agreement or other document shall be construed against the party drafting such agreement or other document.
Article 2
MERGERS
2.1
Purchase Price; Blocker Merger; Company Merger. Upon the terms and subject to the conditions set forth in this Agreement,
in consideration of an aggregate purchase price, to be allocated and delivered as set forth in this Article 2 equal to (x) the
Aggregate Closing Date Consideration Estimate less any amounts thereof allocated to the Rollover Units pursuant to the Distribution Waterfall
Schedule, plus (y) any amounts to be paid to the Blocker Seller or the Merger Participants pursuant to Section 2.8(e), Section 2.11,
Section 2.12 and Section 11.20(c):
(a)
at the Blocker Merger Effective Time (as defined below), Merger Sub I shall be merged with and into the GA Blocker in accordance
with the terms of, and subject to the conditions set forth in, this Agreement, the DGCL and the DLLCA. As a result of the Blocker Merger,
the GA Blocker shall continue as the Blocker Surviving LLC and shall continue its existence under the laws of the State of Delaware, and
the separate existence of Merger Sub I shall cease. The Company Merger shall occur concurrently with the consummation of the Blocker Merger
and each such transaction shall constitute a separate transaction hereunder; and
(b)
at the Company Merger Effective Time (as defined below), Merger Sub II shall be merged with and into the Company in accordance
with the terms of, and subject to the conditions set forth in, this Agreement, the DGCL and the DLLCA. As a result of the Company Merger,
the Company shall continue as the Company Surviving LLC and shall continue its existence under the laws of the State of Delaware, and
the separate existence of Merger Sub II shall cease. The Blocker Merger shall occur concurrently with the consummation of the Company
Merger and each such transaction shall constitute a separate transaction hereunder.
2.2
Effective Times.
(a)
At the Closing, the parties shall file a certificate of merger (the “Blocker Certificate of Merger”), to be
properly executed and filed with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the
DGCL and DLLCA and shall take all such other actions as may be required by applicable Laws to make the Blocker Merger effective as promptly
as practicable. The Blocker Merger shall become effective at the time that the Blocker Certificate of Merger is accepted for filing by
the Secretary of State of the State of Delaware or at such later date and time as may be agreed to by the parties and is specified in
the Blocker Certificate of Merger (such time and date being referred to herein as the “Blocker Merger Effective Time”).
(b)
At the Closing, the parties shall file a certificate of merger (the “Company Certificate of Merger”), to be
properly executed and filed with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL
and DLLCA and shall take all such other actions as may be required by applicable Laws to make the Company Merger effective as promptly
as practicable. The Company Merger shall become effective at the time that the Company Certificate of Merger is accepted for filing by
the Secretary of State of the State of Delaware or at such later date and time as may be agreed to by the parties and is specified in
the Company Certificate of Merger (such time and date being referred to herein as the “Company Merger Effective Time”).
2.3
Effect of Mergers.
(a)
The Blocker Merger shall have the effects set forth in this Agreement, the Blocker Certificate of Merger and the applicable provisions
of the DGCL and DLLCA. Without limiting the generality of the foregoing and subject thereto, by virtue of the Blocker Merger and without
further act or deed, at the Blocker Merger Effective Time all the property, rights, privileges and powers of the GA Blocker and Merger
Sub I shall vest in the Blocker Surviving LLC, and all debts, liabilities and duties of the GA Blocker and Merger Sub I shall become the
debts, liabilities and duties of the Blocker Surviving LLC.
(b)
The Company Merger shall have the effects set forth in this Agreement, the Company Certificate of Merger and the applicable provisions
of the DGCL and DLLCA. Without limiting the generality of the foregoing and subject thereto, by virtue of the Company Merger and without
further act or deed, at the Company Merger Effective Time all the property, rights, privileges and powers of the Company and Merger Sub
II shall vest in the Company Surviving LLC, and all debts, liabilities and duties of the Company and Merger Sub II shall become the debts,
liabilities and duties of the Company Surviving LLC.
2.4
Organizational Documents of the Surviving LLCs.
(a)
At the Blocker Merger Effective Time, by virtue of the Blocker Merger and without any action on the part of Merger Sub I or the
GA Blocker, the limited liability company agreement of the Blocker Surviving LLC shall be in a form determined by Buyer prior to the Blocker
Merger and on file at the Blocker Surviving LLC, until duly amended as provided therein or by applicable Laws (subject to Section 7.6).
(b)
At the Company Merger Effective Time, by virtue of the Company Merger and without any action on the part of Merger Sub II or the
Company, the limited liability company agreement of the Company Surviving LLC shall be in a form determined by Buyer prior to the Company
Merger and on file at the Company Surviving LLC, until duly amended as provided therein or by applicable Laws (subject to Section 7.6).
2.5
Directors and Officers of the Surviving LLCs.
(a)
Each of the parties hereto shall take all necessary action to cause the directors of Merger Sub I and Merger Sub II immediately
prior to the Blocker Merger Effective Time and the Company Merger Effective Time, as applicable, to be the managers of the Blocker Surviving
LLC and the Company Surviving LLC, as applicable, immediately following the Blocker Merger Effective Time and the Company Merger Effective
Time, as applicable, to hold office until their respective successors are duly elected or appointed and qualified or their earlier death,
resignation or removal in accordance with the certificate of formation and the limited liability company agreement of the Blocker Surviving
LLC and the Company Surviving LLC, as applicable.
(b)
The officers the Blocker Surviving LLC shall be the officers appointed by Buyer in writing effective as of the Blocker Merger Effective
Time, until their respective successors are duly appointed and qualified or their earlier death, resignation or removal or otherwise ceasing
to be an officer in accordance with the certificate of formation and the limited liability company agreement of the Blocker Surviving
LLC.
(c)
The officers of the Company as of the Company Merger Effective Time shall be the officers of the Company Surviving LLC, until their
respective successors are duly appointed and qualified or their earlier death, resignation or removal or otherwise ceasing to be an officer
in accordance with the certificate of formation and the limited liability company agreement of the Company Surviving LLC.
2.6
Effect of the Mergers on Equity Interests.
(a)
Blocker Interests. At the Blocker Merger Effective Time, by virtue of the Blocker Merger and without any action on the part
of any party, upon the terms and subject to the conditions set forth in this Agreement:
(i)
All of the Blocker Interests that are issued and outstanding immediately prior to the Blocker Merger Effective Time, shall be
converted into and be exchangeable for the right to receive, without interest: (A) a cash amount equal to the Base Blocker Seller Consideration,
(B) a cash amount equal to the Blocker Seller’s Pro Rata Share of any amounts paid to the Blocker Seller and the Merger Participants
in accordance with Section 2.8(e)(i) or Section 2.8(e)(ii), or released from the Seller Representative Expense
Fund in accordance with Section 11.20(c), (C) the portion of the Deferred Blocker Consideration payable to Blocker Seller
pursuant to Section 2.11(a)(i), (D) the Blocker Seller’s Pro Rata Share of the Deferred Company Consideration and (E)
the Blocker Seller’s Pro Rata Share of any amounts payable to the Blocker Seller and the Merger Participants pursuant to the 2017
Contingent Value Rights (as defined below). The “Base Blocker Seller Consideration” shall be the portion of the Aggregate
Closing Date Consideration Estimate allocable to the Blocker Seller as determined in accordance with the Distribution Waterfall Schedule.
(ii)
With respect to any payment made pursuant to the clauses (A), (B), (C), (D) or (E) of Section 2.6(a)(i), the amount
to be paid to the Blocker Seller for such Blocker Interests held shall be rounded up or down to the nearest whole cent.
(iii)
All Blocker Interests when converted pursuant to this Section 2.6(a), shall be cancelled and no longer be outstanding,
and Blocker Seller shall cease to have any rights with respect thereto except the right to receive the consideration provided for in this
Section 2.6(a). The Blocker Merger will have no effect on the Blocker Company Units, which shall remain outstanding and owned
by the Blocker Surviving LLC.
(b)
Stock of Merger Sub I. At the Blocker Merger Effective Time, by virtue of the Blocker Merger and without any action on the
part of any party, all of the common stock of Merger Sub I issued and outstanding immediately prior to the Blocker Merger Effective Time
shall be converted into and exchanged for an equivalent number of limited liability company interests in the Blocker Surviving LLC. Any
certificate of Merger Sub I evidencing ownership of any such common stock shall automatically be deemed to evidence ownership of such
limited liability company interests of the Blocker Surviving LLC.
(c)
Company Units. At the Company Merger Effective Time, by virtue of the Company Merger and without any action on the part
of any party, upon the terms and subject to the conditions set forth in this Agreement:
(i)
Each class, series and subclass of Company Units that is issued and outstanding immediately prior to the Company Merger Effective
Time, other than the Blocker Company Units and any Company Units held by Buyer or its Subsidiaries immediately prior to the Company Merger
(subject to Section 2.14(b)), shall be converted into and be exchangeable for the right to receive, without interest, (x)
with respect to each Merger Participant holding Company Units other than Red Ventures: (A) a portion of the Merger Participant Closing
Date Consideration as determined in accordance with the Distribution Waterfall Schedule, (B) a cash amount equal to such Merger
Participant’s Pro Rata Share of any amounts paid to the Blocker Seller and the Merger Participants in accordance with Section 2.8(e)(i)
or Section 2.8(e)(ii) or released from the Seller Representative Expense Fund in accordance with Section 11.20(c),
(C) such Merger Participant’s Pro Rata Share of any Deferred Company Consideration payable to the Blocker Seller and the Merger
Participants, (D) such Merger Participant’s Pro Rata Share of any amounts payable to the Blocker Seller and the Merger Participants
pursuant to the 2017 Contingent Value Rights; and (y) with respect to Red Ventures, (1) the amounts set forth in clauses (A) through
(D) of this Section 2.6(c)(i) and (2) the portion of the Deferred Blocker Consideration payable to Blocker Seller pursuant
to Section 2.11(a)(i).
(ii)
With respect to any payment made pursuant to the clauses (x) or (y) of Section 2.6(c)(i), the amount to be paid to
each Merger Participant for each class, series and subclass of Company Units held shall be rounded up or down to the nearest whole cent.
(iii)
All Company Units, other than the Blocker Company Units and any Company Units held by Buyer or its Subsidiaries immediately prior
to the Company Merger, when converted pursuant to this Section 2.6(c), shall be cancelled and no longer be outstanding, and
each former holder thereof shall cease to have any rights with respect thereto except the right to receive the consideration provided
for in this Section 2.6(c). The Company Merger will have no effect on the Blocker Company Units and any Company Units held
by Buyer or its Subsidiaries immediately prior to the Company Merger.
(d)
Stock of Merger Sub II. At the Company Merger Effective Time, by virtue of the Company Merger and without any action on
the part of any party, all of the common stock of Merger Sub II issued and outstanding immediately prior to the Company Merger Effective
Time shall be converted into and exchanged for an equivalent number of limited liability company interests in the Company Surviving LLC.
Any certificate of Merger Sub II evidencing ownership of any such common stock shall automatically be deemed to evidence ownership of
such limited liability company interests of the Company Surviving LLC.
(e)
Distribution Waterfall and Pro Rata Share Schedules. The parties hereto acknowledge and agree that each of Buyer, the Parent
Parties, the Surviving LLC and the Seller Representative can rely on (i) the Distribution Waterfall Schedule and (ii) the Pro Rata Share
Schedule, as setting forth a true, complete and accurate listing of all items set forth in and amounts payable pursuant to the Company
LLC Agreement, the Phantom Equity Plan, the Incentive Plan and the Incentive Unit award agreements under the Incentive Plan, as applicable.
2.7
Closing Actions.
(a)
At the Closing, Buyer shall:
(i)
pay, or cause to be paid, to the Blocker Seller by wire transfer of immediately available funds to one or more bank accounts designated
in writing by the Seller Representative (such account(s) to be designated at least two (2) Business Days prior to the Closing) a
cash amount equal to the Base Blocker Seller Consideration;
(ii) pay,
or cause to be paid, by wire transfer of immediately available funds to the Paying Agent, for the benefit of the Merger Participants
(for the avoidance of doubt, excluding the Rollover Sellers with respect to their Rollover Units), a cash amount equal to the Merger
Participant Closing Date Consideration;
(iii)
pay, or cause to be paid, to the Escrow Agent, the Adjustment Escrow Amount, to be deposited by the Escrow Agent into an escrow
account designated by the Escrow Agent, to be held and distributed in accordance with the terms of this Agreement and the Escrow Agreement;
(iv)
deposit, or cause to be deposited, by wire transfer of immediately available funds to one or more bank accounts designated in writing
by the Seller Representative, the Seller Representative Expense Fund with the Seller Representative; and
(v)
pay, or cause to be paid, to the Company by wire transfer of immediately available funds to one or more bank accounts designated
in writing by the Company (such account(s) to be designated at least two (2) Business Days prior to the Closing) a cash amount equal to
(A) the aggregate amounts to be paid under the Phantom Equity Plan in connection with the payment of the Aggregate Closing Date Consideration
Estimate as determined in accordance with the Distribution Waterfall, for payments under the Phantom Equity Plan pursuant to Section 2.13
minus (B) any available cash of the Company that will be utilized to make such payments under the Phantom Equity Plan.
(b)
At the Closing, Buyer and the Seller Representative shall deliver joint written instructions in accordance with the Paying Agent
Agreement to the Paying Agent to, promptly following receipt of the amounts set forth in Section 2.7(a)(ii), pay to each Merger
Participant who shall have delivered to the Company not less than three (3) Business Days prior to the Closing Date a completed Letter
of Transmittal (as defined below), cash in an amount set forth for such Merger Participant in the Distribution Waterfall Schedule (without
interest), which such amounts shall be payable by wire transfer of immediately available funds on the Closing Date (or reasonably promptly
after the Closing Date for any payments made by check) to the account or address designated in such Merger Participant’s Letter
of Transmittal.
(c)
Immediately following the consummation of the Mergers in accordance with Sections 2.1(a) and 2.1(b), Buyer shall
pay, or cause to be paid, on behalf of the Company (or its designees) (i) the Loan Agreement Payoff Amount and (ii) subject to Section 2.15
and excluding any amounts paid pursuant to Section 2.7(a)(v), to the Persons entitled to payment in respect of the Seller
Expenses as specified in the Preliminary Closing Statement (as defined below) (and the Company shall have delivered or caused to be delivered
to Buyer at least three (3) Business Days prior to the Closing final invoices, wire instructions and all other information necessary for
payment with respect to all Seller Expenses).
2.8
Purchase Price Adjustment.
(a)
No earlier than five (5) and at least three (3) Business Days prior to the Closing Date, the Company shall deliver to Buyer, a
statement that is certified by the Company’s Chief Financial Officer containing the following items (as may be revised in accordance
with the last sentence of this Section 2.8(a), the “Preliminary Closing Statement”): (i) a good faith estimate
of the Aggregate Closing Date Consideration and each of the components thereof listed in the definition thereof (as may be revised in
accordance with the last sentence of this Section 2.8(a), the “Aggregate Closing Date Consideration Estimate”),
including (A) Closing Working Capital (the “Working Capital Estimate”) and the resulting Working Capital Overage or
Working Capital Underage, (B) Closing Indebtedness, (C) Closing Cash and (D) the Seller Expenses, including an itemized list thereof specifying
the amount of each such Seller Expense, in each case calculated in accordance with the Balance Sheet Rules (clauses (A) through (D) inclusive,
the “Consideration Elements”) and (ii) reasonable supporting detail of all of the foregoing. Concurrently with the
delivery of the Preliminary Closing Statement, the Company shall deliver to Buyer (1) the Distribution Waterfall Schedule based on
the foregoing estimates and (2) the Pro Rata Share Schedule, each of which shall have been prepared in good faith by the Company
and in the form provided to Buyer prior to the execution of this Agreement, with only (x) updates to reflect the amount of the Aggregate
Closing Date Consideration Estimate (and with respect to the Distribution Waterfall, any Consideration Elements reflected therein) and
any change to the number of outstanding Company Units to reflect the outstanding Company Units at Closing and (y) any changes agreed
to by the Company and Buyer to correct manifest error. The Company and each of its Subsidiaries shall provide Buyer and its Representatives
reasonable access to all the properties, books, Contracts and records of the Company Group and such Representatives of the Company Group
(including the Company’s accountants) relevant to Buyer’s review of the Preliminary Closing Statement in accordance with this
Section 2.8(a), subject to clause (iv) of the Access and Assistance Limitations and the limitations set forth in Section 7.2(b).
The Company shall review comments proposed by Buyer with respect to the foregoing and will consider (in good faith) and incorporate any
changes it reasonably deems appropriate to the Preliminary Closing Statement prior to the Closing.
(b)
Within sixty (60) days after the Closing Date, Buyer shall, or shall cause the Company to, deliver to the Seller Representative:
(i) a statement (the “Statement”) containing its calculation of the Aggregate Closing Date Consideration and the Consideration
Elements, and (ii) reasonable supporting detail of all of the foregoing. Buyer shall not amend, supplement or modify the Statement following
its delivery to the Seller Representative, except in connection with attempting to resolve a Notice of Disagreement pursuant to Section 2.8(c).
Buyer and the Company acknowledge that no adjustments shall be made to the Working Capital Target Amount.
(c)
The Statement shall become final and binding upon the parties on the thirtieth (30th) day following the date on which
the Statement was delivered to the Seller Representative unless the Seller Representative delivers written notice of its disagreement
with the Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall (i) specify
in reasonable detail the nature of any disagreement so asserted and (ii) only include good faith disagreements based on the Aggregate
Closing Date Consideration or the Consideration Elements not being calculated in accordance with the Balance Sheet Rules (to the extent
applicable) or the other terms of this Agreement. If a Notice of Disagreement is received by Buyer in a timely manner, then the Statement
(as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (A) the date Buyer
and the Seller Representative resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement
and (B) the date any disputed matters are finally resolved in writing by the Accounting Firm. During the fourteen (14)-day period
following the delivery of a Notice of Disagreement, Buyer and the Seller Representative shall seek in good faith to resolve in writing
any differences that they may have with respect to the matters specified in the Notice of Disagreement, and all such discussions and
communications related thereto shall (unless otherwise agreed by Buyer and the Seller Representative in writing) be governed by Rule
408 of the Federal Rules of Evidence and any applicable similar state rule. If at the end of such fourteen (14)-day period Buyer and
the Seller Representative have not resolved in writing the matters specified in the Notice of Disagreement, Buyer and the Seller Representative
shall submit to an independent accounting firm (the “Accounting Firm”) for arbitration, in accordance with the standards
set forth in this Section 2.8, only matters that remain in dispute. The Accounting Firm shall be BDO USA, LLP or, if such
firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by Buyer
and the Seller Representative in writing, and, Buyer and the Seller Representative shall enter into a customary engagement letter with,
and to the extent necessary each party to this Agreement and its Affiliates will waive any conflicts with, the Accounting Firm at the
time such dispute is submitted to the Accounting Firm and shall cooperate with the Accounting Firm in connection with its determination
pursuant to this Section 2.8(c). Buyer and the Seller Representative shall use reasonable efforts to cause the Accounting
Firm to render a written decision resolving the matters submitted to the Accounting Firm within thirty (30) days of the receipt of such
submission. The scope of the disputes to be resolved by the Accounting Firm shall be limited to fixing mathematical errors and determining
whether the items in dispute were determined in accordance with the Balance Sheet Rules and the other terms of this Agreement, and the
Accounting Firm is not to make any other determination, including any determination as to whether the Working Capital Target Amount or
Aggregate Closing Date Consideration Estimate are correct. The Accounting Firm’s decision shall be based solely on written submissions
by Buyer and the Seller Representative and their respective representatives (a copy of which shall be delivered to Buyer or the Seller
Representative, as applicable) and not by independent review and shall be final and binding on all of the parties hereto (absent manifest
error). The Accounting Firm may not assign a value greater than the greatest value for such item claimed by either party or smaller than
the smallest value for such item claimed by either party. Judgment may be entered upon the determination of the Accounting Firm in any
court having jurisdiction over the party against which such determination is to be enforced.
(i)
The up-front engagement fees and expenses of the Accounting Firm incurred pursuant to this Section 2.8 in connection
with any disputed Aggregate Closing Date Consideration or Consideration Elements shall initially be borne 50% by the Seller Representative,
on the one hand, and 50% by Buyer, on the other hand, provided, all such fees, costs and expenses shall ultimately be borne in
proportion to the final allocation made by such Accounting Firm of the disputed items weighted in relation to the claims made by the
Seller Representative and Buyer, such that the prevailing party pays the lesser proportion of such fees, costs and expenses. For example,
if the Seller Representative claims that the appropriate adjustments are $1,000 greater than the amount determined by Buyer and if the
Accounting Firm ultimately resolves the dispute by awarding to the Seller Representative $300 of the $1,000 contested, then the fees,
costs and expenses of the Accounting Firm will be allocated 30% (i.e., 300 ÷ 1,000) to Buyer and 70% (i.e., 700
÷ 1,000) to the Seller Representative.
(ii)
For the avoidance of doubt, all fees, costs and expenses incurred by the parties in connection with resolving any dispute hereunder
before the Accounting Firm has been engaged shall be borne by the party incurring such fee, cost or expense.
(d) For
the purposes of this Agreement, “Final Aggregate Closing Date Consideration” means the Aggregate Closing Date Consideration,
as finally agreed or determined in accordance with Section 2.8(c).
(e) Within
five (5) Business Days after the Final Aggregate Closing Date Consideration has become final and binding on the parties, the following
shall occur:
(i) If
the Final Aggregate Closing Date Consideration equals or is greater than the Aggregate Closing Date Consideration Estimate, Buyer shall
pay (or cause to be paid) to (x) the Blocker Seller, by wire transfer of immediately available funds to the account(s) designated by
the Seller Representative, (y) the Paying Agent for further distribution to the Merger Participants (other than the Rollover Sellers
in respect of their respective Rollover Units) (subject to Section 2.9(b)) and (z) the Company, for further distribution
to the Rollover Sellers (in accordance with Section 2.14), in each case in accordance with such Person’s Pro Rata Share,
a cash amount for clauses (x), (y) and (z) equal to the lesser of (A) such excess (if any) (the “Additional Consideration Payment”)
or (B) $5,000,000 (the “Buyer Adjustment Cap”); provided that to the extent that the Additional Consideration
Payment exceeds $1,398,207 then the amount of such excess shall be paid in accordance with this Section 2.8(e)(i) on April
16, 2018. Buyer and the Seller Representative shall then provide a joint written instruction to the Escrow Agent to release to the Blocker
Seller, by wire transfer of immediately available funds to the account(s) designated by the Seller Representative, to the Paying Agent,
for further distribution to the Merger Participants (subject to Section 2.9(b)) and the Company, for further distribution
to the Rollover Sellers (in accordance with Section 2.14(b)), in each case in accordance with such Person’s Pro Rata
Share, the Adjustment Escrow Amount (including accrued interest thereon). To the extent the Buyer Adjustment Amount exceeds the sum of
the Adjustment Escrow Amount plus any interest accrued thereon, Buyer shall be entitled to withhold from the payment of the Deferred
Company Consideration pursuant to Section 2.11 an amount equal to the Buyer Adjustment Amount less the Adjustment
Escrow Amount (including accrued interest thereon). To the extent the Buyer Adjustment Amount exceeds the sum of (A) the Adjustment Escrow
Amount plus any interest accrued and (B) the amount of the Deferred Company Consideration, no further payment shall be required in respect
of such excess.
(ii) If
the Aggregate Closing Date Consideration Estimate is greater than the Final Aggregate Closing Date Consideration (the amount of such
excess, the “Buyer Adjustment Amount”), then Buyer and the Seller Representative shall provide a joint written instruction
to the Escrow Agent to release (a) to Buyer a portion of the Adjustment Escrow Amount equal to the Buyer Adjustment Amount, (b) to the
Blocker Seller, by wire transfer of immediately available funds to the account(s) designated by the Seller Representative, to the Paying
Agent, for further distribution to the Merger Participants (subject to Section 2.9(b)) and to the Company, for further distribution
to the Rollover Sellers (in accordance with Section 2.14(b)), in each case in accordance with such Person’s Pro Rata
Share, any remaining Adjustment Escrow Amount (including accrued interest thereon). To the extent the Buyer Adjustment Amount exceeds
the sum of the Adjustment Escrow Amount plus any interest accrued thereon, no further payment shall be required in respect of such excess.
(iii)
Upon payment of the amounts provided in this Section 2.8(e), none of the parties hereto may make or assert any claim
under this Section 2.8.
(iv)
All payments made pursuant to Section 11.20(c), this Section 2.8(e), Section 2.11 or Section 2.12,
in respect of the Blocker Interests or the Company Units (other than the Rollover Units) shall be treated by all parties for tax purposes
as adjustments to the purchase price of the Blocker Interests or such Company Units (as applicable).
(f)
No actions taken by Buyer on its own behalf or on behalf of the Company Group, at or following the Closing (including the use of
any cash of the Company to make any payments under the Phantom Equity Plan in connection with the Closing) shall be given effect for purposes
of determining the Final Aggregate Closing Date Consideration. During the period of time from and after the Closing Date through the final
determination and payment of Final Aggregate Closing Date Consideration in accordance with this Section 2.8, Buyer shall afford,
and shall cause the Company Group to afford, to the Seller Representative and any accountants, counsel or financial advisers retained
by the Seller Representative in connection with the review of Final Aggregate Closing Date Consideration in accordance with this Section 2.8,
reasonable access to all the properties, books, Contracts and records of the Company Group and such Representatives of the Company Group
(including the Company’s accountants) relevant to the review of the Statement and Buyer’s determination of Final Aggregate
Closing Date Consideration in accordance with this Section 2.8, subject to the applicable limitations set forth in Section 7.12.
2.9
Delivery of Letter of Transmittal from and after the Closing Date.
(a)
As soon as practicable after the date hereof, but in any event within ten (10) Business Days, the Company shall provide, or shall
cause its designee to provide, to each Merger Participant a letter of transmittal containing customary terms to be agreed upon by the
Company and Buyer and that are consistent with the Acknowledgment Letter (“Letter of Transmittal”). If the Letter
of Transmittal appoints the Seller Representative, it shall also appoint the Merger Participant Tax Representative on consistent terms.
(b) With
respect to each Merger Participant who shall not have delivered to the Company, on or prior to five (5) Business Days prior to the Closing
Date, a Letter of Transmittal, promptly (but in no event later than five (5) Business Days) following such Merger Participant’s
delivery to the Company Surviving LLC of a completed Letter of Transmittal, (a) the Paying Agent shall pay, or cause the Company Surviving
LLC to pay, to such Merger Participant all amounts that would previously have been payable with respect to such Company Units pursuant
to Section 2.7(b), Section 2.8(e)(i), Section 2.8(e)(ii) and Section 11.20(c) had such
Letter of Transmittal been delivered on or prior to the Closing Date.
2.10
Paying Agent Matters. At any time following the first anniversary of the Closing Date, Buyer and the Company Surviving LLC
shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) that had
been made available to the Paying Agent and which have not been disbursed to the Merger Participants, and thereafter, such Merger Participants
shall be entitled to look only to the Company Surviving LLC (subject to abandoned property, escheat or other similar Laws), as general
creditors thereof with respect to the payment of any Merger Participant Closing Date Consideration, that would otherwise be payable upon
the delivery of the Letter of Transmittal by such Merger Participant, as determined pursuant to this Agreement, without any interest thereon.
Any amounts remaining unclaimed by such Merger Participant at such time at which such amounts would otherwise escheat to or become property
of any Governmental Authority shall become, to the extent permitted by applicable Laws, the property of Buyer, free and clear of all claims
or interests of any Person previously entitled thereto. Notwithstanding the foregoing, none of the Seller Representative, the Parent Parties
or the Surviving LLCs shall be liable to any former Merger Participant for any portion of the Merger Participant Closing Date Consideration
or interest thereon properly delivered to a public official pursuant to any applicable abandoned property, escheat or other similar Law.
2.11
Payment of Deferred Consideration.
(a) After
the Closing, and as additional consideration for the Mergers, no later than April 16, 2018, Buyer or the Company Surviving LLC (or
its successor) shall pay, or cause to be paid,
(i)
the Deferred Blocker Consideration, which amount shall be paid $1,317,270.70 to the Blocker Seller and $80,936.30 to Red
Ventures, in each case, by wire transfer of immediately available funds to the account(s) designated by the Seller Representative; and
(ii)
the Deferred Company Consideration, which amount shall be paid to (A) the Blocker Seller, by wire transfer of immediately available
funds to the account(s) designated by the Seller Representative, (B) the Paying Agent for further distribution to the Merger Participants
(other than the Rollover Sellers in respect of their respective Rollover Units) (subject to Section 2.9(b)) and (C) the Company,
for further distribution to the Rollover Sellers (in accordance with Section 2.14), in each case in accordance with such Person’s
respective Pro Rata Share.
(b)
Until the Deferred Blocker Consideration and the Deferred Company Consideration (collectively, the “Deferred Consideration”)
and any amounts that may be due pursuant to the proviso in the first sentence of Section 2.8(e)(i) are paid pursuant to this Section 2.11,
Buyer, the Company Surviving LLC, and their respective successors and Subsidiaries shall use their respective commercially reasonable
efforts to provide that the terms of their Indebtedness permits the payment of the Deferred Consideration under this Section 2.11
and such amounts due pursuant to the proviso in the first sentence of Section 2.8(e)(i).
2.12
2017 Contingent Value Rights. Subject to the terms and conditions of this Agreement, after the Closing, and as additional
consideration for the Mergers, in the event that any Buyer CVR Payment (as defined in Annex I) becomes payable in accordance with
Annex I, then the GA Blocker and the Merger Participants shall be entitled to their respective Pro Rata Shares of any Buyer CVR Payment
that becomes payable pursuant to the contingent value rights described in Annex I (such rights, the “2017 Contingent Value
Rights”). The Buyer CVR Payment shall be paid as follows: (a) the Blocker Seller’s
Pro Rata Share of the Buyer CVR Payments shall be paid, by wire transfer of immediately available funds to the account(s) designated by
the Seller Representative, (b) the aggregate Pro Rata Share of the Buyer CVR Payment of the Merger Participants, other than Rollover Sellers
solely in respect to the Rollover Units, shall be paid, by wire transfer of immediately available funds, to the Paying Agent (or, if the
Paying Agent is no longer engaged at such time, such other paying agent mutually agreed upon between Buyer and the Seller Representative)
for further distribution to the Merger Participants and (c) the Pro Rata Share of the Rollover Sellers solely with respect to the Rollover
Units shall be paid, by wire transfer of immediately available funds, to the Company, for further distribution to the Rollover Sellers
(in accordance with Section 2.14(b)).
2.13
Payments under the Phantom Equity Plan and Withholding. Any payments made under the Phantom Equity Plan (whether at or after
the Closing) shall be paid through the Company’s payroll system and shall be subject to any applicable withholding and payroll Taxes.
2.14
Rollover Matters.
(a)
In connection with the Rollover Contribution, Blocker Seller and the Company shall reasonably cooperate with Buyer, Merger Sub
and the Rollover Sellers to the extent necessary to permit and effect the contribution of the Rollover Units by the Rollover Sellers
to Buyer prior to the Closing; provided that under no circumstance shall the failure of any Rollover Seller to contribute its
Rollover Units to Buyer prior to Closing be considered in determining whether the conditions set forth in Article 8
have been satisfied, nor shall any such failure otherwise affect Buyer’s obligations to consummate the transactions contemplated
by this Agreement.
(b)
Anything in this Article 2 to the contrary notwithstanding, the Rollover Sellers (i) shall not be entitled to receive
with respect to their Rollover Units any portion of the Merger Participant Closing Date Consideration and (ii) shall be entitled to receive
their respective Pro Rata Shares with respect to their Rollover Units of any payments made pursuant to Sections 2.8(e)(i), 2.8(e)(ii),
2.11, 2.12 or 11.20.
2.15
Withholding Rights. Buyer, the Company, the Paying Agent and the Seller Representative shall be entitled to deduct and withhold
from any payments made pursuant to this Agreement such amounts as they are required to deduct and withhold with respect to the making
of any such payments under applicable Tax Law; provided, that, prior to withholding any non-compensatory amounts hereunder, the
paying entity shall provide the recipient with notice of such withholding and an opportunity to provide forms or other evidence necessary
to reduce or eliminate such withholding. To the extent that amounts are so withheld, and paid to the proper Governmental Authority, such
withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder in respect of which such deduction
and withholding was made.
Article 3
THE
CLOSING
3.1 Closing; Closing Date. Subject to the satisfaction of the conditions set forth in Articles 8 and 9 (or,
to the extent permitted by applicable Law, the waiver thereof by the party entitled to waive that condition), the closing of the Mergers
contemplated hereby (the “Closing”) shall take place (a) at the offices of Paul, Weiss, Rifkind, Wharton & Garrison
LLP (“Paul, Weiss”), 1285 Avenue of the Americas, New York, New York 10019-6064, at 10:00 a.m. local
time, on the second (2nd) Business Day after the date that all of the conditions to the Closing set forth in Articles 8
and 9 (other than those conditions which, by their terms, are to be satisfied or waived at the Closing, but subject to the
satisfaction or waiver of such conditions) shall have been satisfied or waived by the party entitled to waive the same; provided that
(i) if the Marketing Period has not ended at the time of the satisfaction or waiver of each of the conditions to the Closing set forth
in Articles 8 and 9 (other than those conditions which, by their terms, are to be satisfied or waived at the Closing,
but subject to the satisfaction or waiver of such conditions), the Closing shall occur on the earlier to occur of (x) a date during the
Marketing Period specified by Buyer on no less than three (3) Business Days’ notice to the Company (it being understood
that such date on or prior to the last day of the Marketing Period may be conditioned upon the simultaneous completion of the Debt Financing)
and (y) the first Business Day immediately following the final day of the Marketing Period (subject, in each case, to the satisfaction
or waiver of each of the conditions to Closing set forth in Articles 8 and 9 as of the date determined pursuant to
this proviso) and (ii) in no event will the Buyer be required to complete the Closing prior to August 4, 2017. or (b) such other time,
place and date that the Company and Buyer may agree in writing. The date upon which the Closing occurs is referred to herein as the “Closing
Date.”
3.2
Deliveries by the Company. At the Closing, the Company will deliver or cause to be delivered to Buyer (unless delivered
previously) the following:
(i)
the Escrow Agreement, executed by the Seller Representative;
(ii) the Paying Agent Agreement, executed by the Company and the Seller Representative;
(iii) the Blocker Certificate of Merger, executed by the Blocker Seller;
(iv) the Company Certificate of Merger, executed by the Company;
(v) any completed Letters of Transmittal received prior thereto;
(vi) the Payoff Letter, executed by the lenders party thereto; and
(vii) the Company Officer’s Certificate;
(viii) the Blocker Seller Officer’s Certificate;
(ix) the FIRPTA Certificates; and
(x) any other document required to be delivered by the Company, the Seller Representative or the Blocker Seller at Closing pursuant
to this Agreement.
3.3
Deliveries by Buyer. At the Closing, Buyer will deliver or cause to be delivered to the Company (unless delivered previously)
the following:
(i)
the Escrow Agreement, executed by Buyer;
(ii) the Buyer Officer’s Certificate;
(iii)
the Paying Agent Agreement, executed by Buyer; and
(iv)
any other document required to be delivered by Buyer at Closing pursuant to this Agreement.
Article 4
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except as set forth in the Disclosure Schedule being
delivered by the Company concurrently herewith (subject to Section 11.7(a)), the Company represents and warrants to the Parent
Parties as follows:
4.1
Organization and Qualification.
(a)
The Company and each Company Subsidiary (i) are duly formed, validly existing and in good standing under the Laws of the state
of their respective organization and (ii) have all requisite organizational power and authority to own, lease and operate their respective
properties, rights and other assets and carry on their business as presently owned or conducted, except where the failure of any Company
Subsidiary to be so formed, existing and in good standing or of the Company or the Company Subsidiaries to have such power or authority
would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries, taken
as a whole.
(b)
The Company and each Company Subsidiary have been duly qualified, licensed or registered to transact business as a foreign entity
and are in good standing (or the equivalent thereof) in each jurisdiction in which the ownership or lease of property or the conduct of
their business requires such qualification, license or registration, except where the failure to be so qualified, licensed or registered
or in good standing (or the equivalent thereof) would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(c)
The Company has made available to Buyer true and correct copies of the organizational documents for the Company and each Company
Subsidiary as in effect on the date hereof, and none of the Company or any Company Subsidiary is in violation of any of the provisions
of such documents, except for any violation that would not, individually or in the aggregate, be material to the Company and the Company
Subsidiaries, taken as a whole.
4.2 Capitalization
of the Company. The Company Units represent all the authorized, issued and outstanding equity interests of the Company as of the
date hereof. Except as set forth on Schedule 4.2, there are no other equity securities of the Company authorized, issued,
reserved for issuance or outstanding and no outstanding or authorized options, warrants, convertible or exchangeable securities,
subscriptions, rights (including any preemptive rights), calls or commitments of any character whatsoever, relating to any of the
Company Units, to which the Company or any of the Company Subsidiaries is a party or is bound requiring the issuance, delivery or
sale of equity interests of the Company. Except as set forth on Schedule 4.2, there are no outstanding or authorized stock
appreciation, phantom stock, profit participation or similar rights with respect to the Company or any of the Company Units to which
the Company or any Company Subsidiaries is a party or is bound. The Company has no authorized or outstanding bonds, debentures,
notes or other Indebtedness the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the
right to subscribe for or acquire securities having the right to vote) with the holders of the Company Units on any matter. There
are no Contracts to which the Company is a party or by which it is bound to (x) repurchase, redeem or otherwise acquire any of
the Company Units or (y) vote or dispose of any of the Company Units. Except as set forth in the Company LLC Agreement, there
are no irrevocable proxies and no voting agreements with respect to any of the Company Units. Since September 30, 2016, the Company
and Company Subsidiaries have not repurchased or otherwise acquired any Company Units. Schedule 4.2 sets forth a complete and
accurate capitalization table that includes (i) each holder of Preferred Units and the number of Preferred Units held by each such
holder, (ii) each holder of Common Units and the number of Common Units held by each such holder, (iii) a list of each holder of
Incentive Units, the number of Incentive Units held (with separate listings of performance-vesting Incentive Units and
service-vesting Incentive Units) and the amount of any loans outstanding or committed to be made with respect to such Incentive
Units by such holder and the Distribution Hurdle (as defined in the Company LLC Agreement) for each of the Incentive Units held and
(iv) a list of each holder of Phantom Units, the number of Phantom Units held by such holder and the amount of any Phantom Unit
Prior Bonus Payments and Phantom Unit Future Bonus Rights with respect to such Phantom Units.
4.3
Subsidiaries.
(a) Schedule
4.3(a) sets forth a complete and accurate list of the name and jurisdiction of each of the Company’s Subsidiaries (each a
“Company Subsidiary”) and the authorized, issued and outstanding equity interests of each Company Subsidiary. All
of the outstanding equity interests of each Company Subsidiary are duly authorized, validly issued, fully paid and non-assessable,
if applicable, and are directly owned of record by the Company or a Company Subsidiary, free and clear of any Encumbrances other
than Permitted Encumbrances or Encumbrances created by acts of Buyer or its Affiliates. Except as set forth on Schedule
4.3(a), there are no other equity securities of any Company Subsidiary authorized, issued, reserved for issuance or outstanding
and no outstanding or authorized options, warrants, convertible or exchangeable securities, subscriptions, rights (including any
preemptive rights), stock appreciation rights, calls or commitments of any character whatsoever to which any Company Subsidiary is a
party or may be bound requiring the issuance, delivery or sale of shares of capital stock, or other equity interests, of any Company
Subsidiary. Except as set forth on Schedule 4.3(a), there are no outstanding or authorized stock appreciation, phantom stock,
profit participation or similar rights with respect to the equity interests of, or other voting interest in, any Company Subsidiary
to which the Company or a Company Subsidiary is bound. No Company Subsidiary has any authorized or outstanding bonds, debentures,
notes or other indebtedness, the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the
right to subscribe for or acquire securities having the right to vote) with the equity holders of such Company Subsidiary on any
matter. There are no Contracts to which the Company or any Company Subsidiary is a party or by which the Company or any Company
Subsidiary is bound to (i) repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity or voting
interest in, any Company Subsidiary or (ii) vote or dispose of any shares of the capital stock of, or other equity or voting
interest in, any Company Subsidiary. Except to the extent provided under the Loan Agreement, there are no irrevocable proxies and no
voting agreements with respect to any shares of equity interests, or other voting interest in, any Company Subsidiary.
(b)
Neither the Company nor any Company Subsidiary owns, directly or indirectly, any capital stock of, or equity ownership or voting
interest in, any Person (other than a Company Subsidiary).
4.4
Authority; Binding Obligation. The Company has full requisite authority and power to execute, deliver and perform this Agreement
and to consummate the transactions contemplated hereby. The execution of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all required limited liability company action on the part of the Company and except with
respect to the Member Approval, no other limited liability company proceedings on the part of the Company are necessary to authorize this
Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company
and, assuming that this Agreement constitutes the legal, valid and binding obligation of Buyer, constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability
thereof may be limited by (a) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws
from time to time in effect affecting generally the enforcement of creditors’ rights and remedies; and (b) general principles
of equity (clauses (a) and (b), collectively, the “Equitable Exceptions”). On or prior to the date hereof, the Company
has received an executed Acknowledgment Letter from each holder of Common Units, a true and correct copy of which has been provided to
Buyer.
4.5
No Defaults or Conflicts. The execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby by the Company and performance by the Company of its obligations hereunder (a) do not conflict with or result in any violation
of the organizational documents the Company or any Company Subsidiary; (b) except as set forth in Schedule 4.5, do not conflict
with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the acceleration of
or create in any party the right to accelerate, terminate, materially modify or cancel, with or without notice or lapse of time or both,
any Material Contract or Lease, or give rise to any modification of the terms thereof; and (c) do not violate in any material respect
any existing applicable Law of any Governmental Authority having jurisdiction over the Company, the Company Subsidiaries or any of their
respective properties, except that no representation or warranty is made in the foregoing clauses (b) or (c) with respect
to such matters that would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company
Subsidiaries, taken as a whole.
4.6 No
Governmental Authorization Required. Except for applicable requirements of Antitrust Laws or as otherwise required due to the identity
of Buyer and its Affiliates, no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority
will be required to be obtained or made by the Company in connection with the due execution, delivery and performance by the Company
of this Agreement and the consummation by the Company of the transactions contemplated hereby, except in each case for such authorizations,
approvals, notices or filings with any Governmental Authority that, if not obtained or made, would not, individually or in the aggregate,
reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole.
4.7 Financial Statements; No Undisclosed Liabilities.
(a) The
consolidated statements of financial operations included in the Financial Statements fairly present, in all material respects, the (i)
consolidated financial position of Wirepath and each of its Subsidiaries as of their respective dates, and (ii) the other related statements
included in the Financial Statements fairly present, in all material respects, the results of their consolidated operations and cash
flows for the periods indicated, in each case in accordance with GAAP applied on a consistent basis throughout the periods covered thereby,
with only such deviations from such accounting principles or their consistent application as are related to the Unaudited Financial Statements,
which are subject to (A) the absence of normal year-end audit adjustments (none of which individually or in the aggregate would be material)
and (B) the absence of related footnotes. The Financial Statements, including, in the case of the Audited Financial Statements, the footnotes
thereto, have been prepared from the books and records of Wirepath and each of its Subsidiaries and have been prepared in accordance
with GAAP in effect as of the applicable date or period, consistently applied throughout the periods covered thereby. Complete copies
of the Financial Statements have been made available to Buyer.
(b) Except (i) as set forth in the Audited Financial Statements (including the footnotes thereto) or the Interim Balance Sheet and
(ii) for liabilities incurred in the ordinary course of business consistent with past practice, since the date of the Interim Balance
Sheet that would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries,
taken as a whole, the Company and the Company Subsidiaries do not have any liabilities, Indebtedness, debts or obligations of any
nature (whether known or unknown, absolute, accrued, contingent or otherwise) that are required by GAAP to be reflected or reserved against
in a balance sheet of the Company and the Company Subsidiaries.
(c)
Except as set forth in the Financial Statements, neither the Company nor any Company Subsidiary maintains any “off-balance
sheet arrangement” within the meaning of Item 303 of Regulation S-K of the Securities and Exchange Commission.
(d)
The Company (i) does not own, and has never owned any assets other than cash and its equity interests in Wirepath, (ii) is not
a party to any Contract, (iii) has never engaged in any activities other than its ownership of Wirepath and its issuance of equity interests
and (iv) does not have any obligations or liabilities of any kind (whether absolute, contingent, accrued or unaccrued, liquidated or unliquidated)
other than (A) liabilities for Taxes arising from its ownership of Wirepath and its Subsidiaries and (B) liabilities under the Contracts
set forth on Schedule 4.7(d).
4.8
Intellectual Property.
(a)
Schedule 4.8(a)(i) sets forth all material Intellectual Property owned by the Company or a Company Subsidiary that
is used in the operation of the business of the Company and is registered, issued or subject to a pending application for registration
or issuance (“Owned Intellectual Property”), all of which (i) is subsisting and unexpired and, to the knowledge of
the Company, the registered Owned Intellectual Property, valid and enforceable and (ii) except as set forth on Schedule 4.8(a)(ii),
exclusively owned free and clear of any Encumbrances other than Permitted Encumbrances.
(b)
The Company and the Company Subsidiaries own, are licensed to use or otherwise have the right to use all material Intellectual
Property used in the conduct of the business of the Company and the Company Subsidiaries as presently conducted, free and clear of any
Encumbrances other than Permitted Encumbrances.
(c)
There are no Actions pending, or to the knowledge of the Company, threatened in writing (including cease-and-desist letters and
invitations to take a patent license) (i) alleging that the Company or any Company Subsidiaries is infringing, diluting or misappropriating
(“Infringing”) or otherwise violating the Intellectual Property rights of any third party or (ii) challenging the validity
or enforceability of, nor the Company’s or the applicable Company Subsidiary’s title to, any Owned Intellectual Property or
any other material proprietary Intellectual Property, and none of same is currently being challenged in any litigation or Action to which
the Company or a Company Subsidiary is a party.
(d)
To the knowledge of the Company, no Person is materially Infringing or violating any Intellectual Property owned by the Company
or a Company Subsidiary. The conduct of the business of the Company and the Company Subsidiaries as presently conducted does not
infringe or violate in any material respect any Intellectual Property right of any third party.
(e)
All material firmware, middleware, servers, websites, applications, databases, workstations, routers, hubs, switches, circuits,
networks, data communications lines, and all other information technology equipment, and all associated documentation, computer systems
and Software used in the conduct of the business of the Company and the Company Subsidiaries (i) perform in material conformance with
their documentation, (ii) are free from any material Software defect, error or bug, (iii) do not contain any virus, Software routine or
hardware component designed to permit unauthorized access or to disable or otherwise harm any computer systems or Software, or any Software
routine designed to disable a computer program automatically with the passage of time or under the positive control of a Person other
than an authorized licensee or owner of the Software and (iv) have not, over the past two (2) years, experienced a material failure which
has not been resolved. The material proprietary Software of the Company and the Company Subsidiaries does not incorporate, use, or interact
with, and is not based upon, any “open source” or similar Software in any manner that would require the Company or the Company
Subsidiaries to license, distribute, offer or make available any source code relating to such proprietary Software, in connection with
the licensing, distribution, availability or conveyance of such proprietary Software to other Persons. No third Person has possession
of or any current or contingent right to access or possess any material proprietary source code of the Company or the Company Subsidiaries.
(f)
The Company and the Company Subsidiaries are in compliance with all Laws regarding the collection, use, protection, transmission
and storage of Personal Data and no Person has gained unauthorized access to or made any unauthorized use of any Personal Data maintained
by the Company or the Company Subsidiaries. The Company and the Company Subsidiaries have implemented commercially reasonable security
measures to protect all material Personal Data they receive and store in their respective computer systems against loss and against unauthorized
access, use, modification, disclosure or other misuse by third parties, and to protect the confidentiality, integrity and security of
their material computer systems, Software and internet sites from potential unauthorized use, access, interruption or modification by
third parties.
4.9 Compliance
with the Laws. The business of the Company and the Company Subsidiaries, taken as a whole, is not being, and since December 31,
2013, has not been, conducted in violation of any applicable Laws, except such violations which, individually or in the aggregate,
would not reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole. Since December 31,
2013, neither the Company nor any of the Company Subsidiaries has received written notice from any Governmental Authority asserting
that the Company or any Company Subsidiary is in violation of any Law. No representation or warranty is given under this Section 4.9 with
respect to Taxes, Employee Benefit Plans, Labor Relations or Environmental Compliance, which matters are covered exclusively under Sections
4.12, 4.14, 4.15, and 4.16, respectively.
4.10
Contracts. Schedule 4.10 lists or describes, as of the date hereof, and true and correct copies (solely with
respect to written Contracts) have been made available to Buyer of, all Contracts (other than Company Plans, Leases, purchase orders and
any Contracts solely between the Company or any Company Subsidiary, on the one hand, and any Company Subsidiary, on the other hand) to
which the Company or any Company Subsidiary is a party or to which their respective assets, rights, property or business are bound or
subject as of the date hereof, which are:
(a)
Contracts which involve commitments to make capital expenditures in excess of $500,000 or which provide for the purchase of goods
or services by the Company or any Company Subsidiary from any one Person under which the undelivered balance of such products or services
has a purchase price in excess of $1,000,000 other than purchase orders with customers or distributors in the ordinary course of business
(excluding for purposes of this exception, the Contracts required to be listed on Schedule 4.22, which are Material Contracts hereunder);
(b)
Contracts which provide for the sale of products or services by the Company or any Company Subsidiary to any other Person under
which the undelivered balance of such product or services is in excess of $1,000,000, other than purchase orders with customers or distributors
in the ordinary course of business;
(c)
Contracts relating to (i) Indebtedness, including surety bonds, performance bonds and letters of credit or (ii) any loan or advance
by the Company or any Company Subsidiaries to any Person other than advances for travel and other normal business expenses to officers
and employees in the ordinary course of business;
(d)
partnership, joint venture or similar agreements;
(e)
Contracts with dealers, distributors or sales representatives pursuant to which the Company or any Company Subsidiary makes annual
payments in excess of $3,000,000;
(f)
Contracts providing for the acquisition of all or a substantial portion of the assets or equity of any Person or of any business
other than (i) those under which the Company and its Subsidiaries have no further obligations or liabilities or (ii) acquisitions of inventory,
supplies or other materials in the ordinary course of business;
(g) Contracts
(i) granting any Person an Encumbrance on any part of the tangible or intangible assets of the Company or any Company Subsidiaries,
other than Permitted Encumbrance or sales of inventory in the ordinary course of business or (ii) limiting the ability of the
Company or any Company Subsidiaries to incur Indebtedness, pay or make any dividends or distributions, or create Encumbrances on
assets, rights or properties owned by the Company or any Company Subsidiaries;
(h)
Contracts that contain (i) a covenant by the Company or any Company Subsidiary not to compete in any line of business with any
Person or in any geographic region, (ii) “most favored nations” terms or establishes an exclusive sale or purchase obligation
with respect to any product or geographic area, or (iii) a “right of first offer” or “right of first refusal”
on behalf of any other Person to acquire Company or any Company Subsidiary or any assets or business or product lines thereof;
(i)
Contracts that contain licenses of Intellectual Property from the Company or a Company Subsidiary to any third party or to the
Company or a Company Subsidiary from any third party, pursuant to which the Company or any Company Subsidiary has received or made payments
of more than $100,000 in the twelve (12) calendar months ended May 31, 2017 with respect to such licenses;
(j)
Contracts that are collective bargaining agreements; and
(k) Contracts
entered into in the past three years involving any resolution or settlement of any actual or threatened proceeding with a value of greater
than $100,000 or which imposes material continuing obligations on the Company or any Company Subsidiary (collectively, the Contracts
listed on Schedule 4.10 or which should be listed on Schedule 4.10 are referred to herein as the “Material
Contracts”).
With respect to all Material Contracts, neither the
Company, any Company Subsidiary nor, to the knowledge of the Company, any other party to any such Contract is in breach thereof or default
thereunder and there does not exist under any Material Contract any event which, with the giving of notice or the lapse of time, would
constitute such a breach or default by the Company, any Company Subsidiary or, to the knowledge of the Company, any other party, in each
case except for such breaches, defaults and events as to which requisite waivers or consents have been obtained or which would not, individually
or in the aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole. Each Material
Contract (A) is valid and binding on the Company or a Company Subsidiary and, to the knowledge of the Company, the other parties thereto,
and (B) is in full force and effect.
4.11
Litigation. Except as set forth on Schedule 4.11, as of the date hereof, there are no Actions pending, or to the
knowledge of the Company, threatened against the Company or any Company Subsidiary or any material portion of their respective properties
or assets before any Governmental Authority against or involving the Company or any Company Subsidiary that, individually or in the aggregate,
would reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole or that seek to prevent the
Company from consummating the transactions contemplated by this Agreement. Neither the Company nor any Company Subsidiary has failed to
pay any settlement Contract with or is subject to any unsatisfied order, judgment, injunction, ruling, decision, award or decree of any
Governmental Authority.
4.12
Taxes. Except as set forth in Schedule 4.12:
(a)
All material Tax Returns required to be filed by or with respect to the Company or any Company Subsidiary have been timely (within
any applicable extension periods) filed, and all such Tax Returns are true, complete and correct in all material respects.
(b)
The Company and the Company Subsidiaries have fully and timely paid all material Taxes owed by such entities.
(c)
All material deficiencies for Taxes asserted or assessed in writing against the Company or the Company Subsidiaries have been fully
and timely (within any applicable extension periods) paid, settled or properly reflected in the Financial Statements.
(d)
No audit, assessment or claim is pending or, to the knowledge of the Company, threatened in writing with respect to any material
Taxes due from or with respect to the Company or any Company Subsidiary.
(e)
There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the
period for the collection or assessment or reassessment of, material Taxes due from the Company or any Company Subsidiary for any taxable
period and no request for any such waiver or extension is currently pending. No claim has been made by a Governmental Authority in a jurisdiction
where the Company or any Company Subsidiary does not file Tax Returns that the Company or any Company Subsidiary is or may be subject
to Tax in such jurisdiction.
(f)
There are no Encumbrances for Taxes upon the assets or properties of the Company or any Company Subsidiary, except for Permitted
Encumbrances.
(g) Neither
the Company nor any Company Subsidiary has participated, or is currently participating, in any listed transaction within the meaning
of Treasury Regulations Section 1.6011-4(b)(2) or any corresponding provision of state, local or foreign Tax Law.
(h) Neither the Company nor any Company Subsidiary is a party to any agreement, Contract or arrangement primarily relating to the sharing,
allocation or indemnification of Taxes, or has any liability for Taxes of any Person by reason of being a member of the affiliated group,
within the meaning of Section 1504(a) of the Code or filing consolidated federal income Tax Returns under Treasury Regulations Section 1.1502-6
or similar provision of state, local or foreign Tax Law, or as a transferee or successor.
(i) Neither
the Company nor any Company Subsidiary has executed or entered into a closing agreement pursuant to Section 7121 of the Code or
any similar provision of state, local or foreign Tax Law, and neither the Company nor any Company Subsidiary is subject to any private
letter ruling of the U.S. Internal Revenue Service or comparable ruling of any other Governmental Authority.
(j) Neither
the Company nor any Company Subsidiary has constituted a “distributing corporation” or a “controlled corporation”
(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355
of the Code (i) in the two years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of
a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction
with this acquisition.
(k) Neither the Company nor any Company Subsidiary will be required to include any material item of income in, or exclude any material
item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i)
change in accounting method made prior to the Closing, (ii) closing or similar agreement with any Governmental Authority executed prior
to the Closing, (iii) installment sale or open transaction disposition made prior to the Closing, or (iv) election under Section 108(i)
of the Code or (v) prepaid amount received or deferred revenue accrued on or prior to the Closing Date.
(l)
Except as set forth on Schedule 4.12(l), each of the Company and each Company Subsidiary has always been treated as a partnership
or disregarded entity for U.S. federal and applicable state and local income tax purposes.
(m)
Neither the Company nor any Company Subsidiary has made an election pursuant to Sections 6221 through 6241 of the Code, as amended
by the Bipartisan Budget Act of 205 and the Consolidated Appropriations Act of 2016 (the “Partnership Audit Rules”),
to cause the Partnership Audit Rules to apply to any taxable year of the Company or any Company Subsidiary beginning prior to January
1, 2018.
4.13
Permits. The Company and each Company Subsidiary have all material consents, authorizations, registrations, waivers, certificates,
filings, franchises, licenses, notices and permits necessary for the lawful conduct of the Company’s and each Company Subsidiary’s
businesses as currently conducted, or the lawful ownership of properties and assets or the operation of their businesses as currently
conducted (collectively, “Permits”). All such Permits have been lawfully obtained and are in full force and effect,
and there has occurred no default under any Permit by the Company or any Company Subsidiary except as would not, individually or in the
aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole.
4.14
Employee Benefit Plans.
(a) Schedule 4.14(a)
contains a true and complete list of each material written “employee benefit plan” (within the meaning of
Section 3(3) of ERISA), stock purchase, stock option, phantom stock, performance unit, stock appreciation right, employee stock
ownership, equity compensation, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive,
deferred compensation, profit sharing, pension, retirement, retention, compensation, termination, consulting, welfare benefit,
employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to
ERISA, in each case, (i) which the Company or any Company Subsidiary sponsors, maintains or contributes to for the benefit of its
current or former employees or (ii) with respect to which the Company or any Company Subsidiary has, or could reasonably be expect
to have any direct or indirect liability, contingent or otherwise, other than any multiemployer plan as defined in
Section 3(37) of ERISA (a “Multiemployer Plan”). All such plans, agreements, programs, policies and
arrangements, whether or not material, shall be collectively referred to as the “Company Plans.”
(b)
With respect to each Company Plan, the Company has made available to Buyer a current copy (or, to the extent no such copy exists,
a description) thereof and, to the extent applicable: (i) any related trust agreement; (ii) the most recent IRS determination
letter; (iii) the most recent summary plan description, and (iv) for the most recent plan year (A) the Form 5500 and attached
schedules and (B) audited financial statements.
(c)
Neither the Company nor any Company Subsidiary contributes to any Multiemployer Plan and none of the Company Plans are subject
to Title IV of ERISA. Additionally, neither the Company nor any Company Subsidiary has any current or contingent liability or obligation
pursuant to any Multiemployer Plan or by reason of at any time being considered a single employer under Section 414 of the Code with
any other Person.
(d)
Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries,
taken as a whole: (i) each Company Plan has been established and administered in accordance with its terms, and in compliance with
the applicable provisions of ERISA, the Code and other applicable Laws, rules and regulations and (ii) each Company Plan which is
intended to be qualified within the meaning of Code Section 401(a) has received a favorable determination letter from the IRS as
to its qualification or is entitled to rely upon a favorable opinion issued by the IRS, and to the knowledge of the Company nothing has
occurred that could reasonably be expected to cause the loss of such qualification or exemption.
(e)
For each Company Plan that is a “welfare plan” within the meaning of ERISA Section 3(1), neither the Company nor
any Company Subsidiary has any liability or obligation under any plan which provides medical or death benefits with respect to current
or former employees of the Company or any Company Subsidiary beyond their termination of employment (other than coverage mandated by Law).
(f) With
respect to any Company Plan, (i) no Actions (other than routine claims for benefits in the ordinary course) are pending or, to
the knowledge of the Company, threatened and (ii) to the knowledge of the Company, no facts or circumstances exist that would
reasonably be expected to give rise to any such Actions, except, in each case, as would not, individually or in the aggregate,
reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole.
(g)
Except as otherwise set forth in this Agreement with respect to the Incentive Units and Phantom Units, or as otherwise set forth
on Schedule 4.14(g), the consummation of the transactions contemplated by this Agreement (alone or in conjunction with any other
event, including any termination of employment) will not (i) result in any material payment from the Company or any Company Subsidiary
becoming due, or increase materially the amount of any compensation due, in each case to any current or former employee of the Company
or any Company Subsidiary, (ii) materially increase any benefits otherwise due under any Company Plan, (iii) result in the
acceleration of the time of payment or vesting of any compensation or benefits from the Company or any Company Subsidiary to any current
or former employee of the Company or any Company Subsidiary or (iv) result in payments which would not be deductible under Section 280G
of the Code.
(h)
The Company does not maintain any Company Plans outside the jurisdiction of the United States or that cover any employee of the
Company or any Company Subsidiary residing or working outside of the United States.
4.15
Labor Relations.
(a)
Except as would not result in material liability to the Company:
(i) since December 31, 2013, neither the Company nor any of the Company Subsidiaries have experienced any work stoppage, labor strike,
slowdown, or other material labor dispute, disruption or claim of unfair labor practices and, to the knowledge of the Company, none is
threatened, (ii) the Company and the Company Subsidiaries are in material compliance with all applicable Laws respecting employment
practices, classification of individuals as employees or independent contractors, classification of individuals as exempt or non-exempt
terms and conditions of employment and wages and hours, laws regarding notification to employees of plant closings or mass layoffs and
are not engaged in any unfair labor practice and (iii) there is no material unfair labor practice charge or complaint against the
Company or any of the Company Subsidiaries pending before the National Labor Relations Board or any similar state agency. There are no
material administrative charges or court complaints against the Company or any of the Company Subsidiaries concerning workman’s
compensation, alleged employment discrimination or other employment related matters or material breach of any Law, regulation pending
or, to the knowledge of the Company, threatened before any Governmental Authority.
(b) Neither
the Company nor any of the Company Subsidiaries is a party to or bound by any collective bargaining agreement or similar agreement with
any labor organization.
4.16 Environmental
Compliance. Each of the Company and each Company Subsidiary is in compliance with all, and has not violated any, applicable
Environmental Laws, except where the failure to be in compliance or the violation thereof would not, individually or in the
aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole. Each of the Company
and each Company Subsidiary have all permits, authorizations and approvals required under any applicable Environmental Laws of the
business of the Company and the Company Subsidiaries as presently conducted, except where the failure to have such permits,
authorizations and approvals would not, individually or in the aggregate, reasonably be expected to be material to the Company and
the Company Subsidiaries, taken as a whole and are each in compliance with the requirements of such permits. Since December 31,
2013, the Company and each Company Subsidiary have been in compliance with and have not violated such permits, authorizations and
approvals, except where the failure to be in compliance or the violation thereof would not, individually or in the aggregate,
reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole. As of the date hereof, there
are no pending or to the knowledge of the Company, threatened Environmental Claims against the Company or any Company Subsidiary
that, individually or in the aggregate, would reasonably be expected to be material to the Company and the Company Subsidiaries,
taken as a whole. To the Company’s knowledge, no release of any Hazardous Substance has occurred on, in, under or from the
Leased Property for which there was an obligation under Environmental Law to perform any investigation or remedial action except for
releases that would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company
Subsidiaries, taken as a whole.
4.17
Insurance. All material insurance policies (the “Insurance Policies”) with respect to the properties,
assets, or business of the Company and the Company Subsidiaries are listed on Schedule 4.17 and are in full force and effect and
all premiums due and payable thereon have been paid in full. As of the date hereof, neither the Company nor any Company Subsidiary has
received a written notice of cancellation or non-renewal of any Insurance Policy, nor, to the Company’s knowledge, is the early
termination of any Insurance Policy threatened.
4.18 Real
Property. The Company and the Company Subsidiaries do not own any real property. The Company and the Company Subsidiaries have
leasehold, subleasehold or license interests in the real property specified on Schedule 4.18 under the heading “Leased
Properties” (the “Leased Property”), which is a complete and accurate list as of the date hereof of all
Leased Property and identifies all of the leases, subleases, licenses and other arrangements relating to the use or occupancy of the
Leased Property by the Company and the Company Subsidiaries (collectively, the “Leases”). True, correct and
complete copies of each of the Leases as of the date hereof have been made available to Buyer by the Company. With respect to all
Leases, neither the Company, any Company Subsidiary nor, to the knowledge of the Company, any other party to any Lease is in breach
thereof or default thereunder and there does not exist under any Lease any event which, with the giving of notice or the lapse of
time, would constitute such a breach or default by the Company, any Company Subsidiary or, to the knowledge of the Company, any
other party, in each case except for such breaches, defaults and events as to which requisite waivers or consents have been obtained
or which would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company
Subsidiaries, taken as a whole. All of the Leases that are material to the Company and the Company Subsidiaries, taken as a whole,
are in full force and effect.
4.19
Affiliate Transactions. Except for (a) employment relationships and compensation, benefits and travel advances in the
ordinary course of business, (b) transactions entered into on “arms’-length” terms in the ordinary course of business
with portfolio companies of General Atlantic LLC or of its Affiliates (including, for the avoidance of doubt, Red Ventures), or (c) as
disclosed on Schedule 4.19, neither the Company nor any Company Subsidiary is a party to any agreement or transaction with, or
involving the making of any payment or transfer of assets to, any Company Affiliated Person.
4.20
Absence of Certain Changes or Events. Except as set forth on Schedule 4.20, or as otherwise expressly contemplated
by this Agreement, (a) during the period from the date of the Interim Balance Sheet to the date of this Agreement, the Company and
each Company Subsidiary have conducted their respective businesses in the ordinary course of business and they have not engaged in any
of the activities prohibited by Section 7.1(a)(v), (vi), (vii), (ix), (x) and (xii) of
this Agreement and (b) since the date of the Audited Balance Sheet through the date hereof, there has been no Material Adverse Effect.
4.21
Brokers. Except as set forth on Schedule 4.21, no broker, finder or similar intermediary has acted for or on behalf
of the Company or any Company Subsidiary in connection with this Agreement or the transactions contemplated hereby, and no broker, finder,
agent or similar intermediary is entitled to any broker’s, finder’s or similar fee or other commission in connection therewith
based on any agreement with the Company or any Company Subsidiary or any action taken by them.
4.22
Top Suppliers. Schedule 4.22 sets forth the Contracts with, and identifies, the top twenty (20) suppliers of the
Company and its Subsidiaries, based on aggregate total purchases by the Company and its Subsidiaries for the most recent fiscal year (other
than any such Contracts consisting solely of purchase orders) (each of which is a Material Contract), true, correct and complete copies
of which have been provided to Buyer. To the knowledge of the Company, no counterparty set forth on Schedule 4.22 has given the
Company, any Subsidiary of the Company or any of their respective officers, directors, employees, agents or representatives, (a) notice
that it intends to stop or materially alter its business relationship with the Company or any Subsidiary, or (b) has during the past 12
months decreased materially, or threatened to decrease or limit materially, the amount of business it transacts with the Company or any
Subsidiary.
4.23
Exclusivity of Representations. The representations and warranties made by the Company in this Article 4 are
the exclusive representations and warranties made by or concerning the Company. Except as otherwise expressly set forth in this Article 4,
(a) the Company expressly disclaims any representations or warranties of any kind or nature, express or implied, written or oral, as to
the condition, value or quality of any business or assets of the Company or any of the Company Subsidiaries, and (b) the Company specifically
disclaims any representation or warranty of merchantability, usage, suitability or fitness for any particular purpose with respect to
the assets of the Company or any of the Company Subsidiaries, any part thereof, the workmanship thereof, and the absence of any defects
therein, whether latent or patent, it being understood that except for the representations set forth in this Article 4 such
subject assets are “as is, where is” on the Closing Date, and in their present condition, and the Parent Parties shall rely
on their own examination and investigation thereof. The Company is not, directly or indirectly, making any representations or warranties
regarding the pro-forma financial information, financial projections or other forward-looking statements of the Company or any Company
Subsidiary.
Article 5
REPRESENTATIONS AND WARRANTIES OF THE BLOCKER SELLER
The Blocker Seller hereby represents and warrants
to the Parent Parties as follows:
5.1
Organization and Qualification.
(a)
The Blocker Seller and the GA Blocker are (i) duly formed, validly existing and in good standing under the Laws of the state of
their respective organization and (ii) have all requisite corporate power and authority to own and manage its assets and to carry on its
business as it is now being conducted, except where the failure of the Blocker Seller or the GA Blocker to have such power or authority
would not, individually or in the aggregate, reasonably be expected to be material to the Blocker Seller or the GA Blocker, as applicable.
The Blocker Seller has made available to Buyer true and correct copies of the organizational documents for the GA Blocker as in effect
on the date hereof and the GA Blocker is not in violation of any of the provisions contained in such organizational documents.
(b) (i)
Except for the equity interests of the Company and the Company Subsidiaries held directly or indirectly by the GA Blocker, the GA
Blocker does not have, and has never had, any equity interest, direct or indirect, in any corporation, partnership, joint venture or
other entity, and (ii) except for liabilities incurred, and assets received, in connection with Taxes payable by the GA Blocker or
the direct ownership of Company Units, the GA Blocker does not have, and has never had, any other assets, operations or liabilities
of any nature (whether absolute or contingent). The GA Blocker was formed for the sole purpose of holding directly the Company
Units, and the GA Blocker has conducted no activity other than holding directly the Company Units.
(c)
The Blocker Seller has delivered to Buyer a true and correct copy of the EPA. None of the payments to be made pursuant to Article 2
(assuming the payment in full of the 2017 Contingent Value Right) or Section 11.20 will give rise to any CVR Payment and prior
to the execution of this Agreement Blocker Seller has delivered to the Buyer or its Representative true and correct information supporting
such conclusion.
5.2
Authority; Binding Obligation. The Blocker Seller has full requisite authority and power to execute, deliver and perform
this Agreement and to consummate the transactions contemplated hereby. The execution of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all required limited liability company action on the part of the Blocker
Seller and no other limited liability company proceedings on the part of the Blocker Seller are necessary to authorize this Agreement
and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Blocker Seller
and, assuming that this Agreement constitutes the legal, valid and binding obligation of Buyer, constitutes the legal, valid and binding
obligation of the Blocker Seller, enforceable against the Blocker Seller in accordance with its terms, except to the extent that the enforceability
thereof may be limited by the Equitable Exceptions.
5.3
No Defaults or Conflicts. The execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby by the Blocker Seller and performance by the Blocker Seller of its obligations hereunder (a) do not conflict with or result
in any violation of the organizational documents of the Blocker Seller or the GA Blocker; (b) do not conflict with, or result in a material
breach of any of the terms or provisions of, or constitute a material default under, or result in the acceleration of or create in any
party the right to accelerate, terminate, materially modify or cancel, with or without notice or lapse of time or both, any material Contract
to which it is a party; and (c) do not violate in any material respect any existing applicable Law of any Governmental Authority
having jurisdiction over the Blocker Seller, the GA Blocker or any of their respective properties.
5.4 No
Governmental Authorization Required. Except for applicable requirements of Antitrust Laws, no authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority will be required to be obtained or made by the Blocker Seller
or the GA Blocker in connection with the due execution, delivery and performance by the Blocker Seller and the GA Blocker of this
Agreement and the consummation by the Blocker Seller and the GA Blocker of the transactions contemplated hereby, except that no
representation or warranty is made with respect to authorizations, approvals, notices or filings with any Governmental Authority
that, if not obtained or made, would not reasonably be expected, individually or in the aggregate, to materially impair the ability
of the Blocker Seller or the GA Blocker to effect the transactions contemplated hereby.
5.5
Capitalization.
(a)
The Blocker Seller holds of record and owns beneficially the Blocker Interests and the GA Blocker holds of record and owns all
of the Blocker Company Units, in each case free and clear of all Encumbrances (other than Encumbrances relating to the transfer of securities
under applicable securities Laws). The Blocker Interests represent all the authorized, issued and outstanding equity interests of the
GA Blocker. Upon consummation of the transactions provided in Article 2, Buyer will acquire good and valid title of all the
Blocker Interests free and clear of all Encumbrances (other than Encumbrances relating to the transfer of securities under applicable
securities Law and any Encumbrances resulting from the actions of Buyer or its Affiliates).
(b)
There are no other equity securities of the GA Blocker authorized, issued, reserved for issuance or outstanding and no outstanding
or authorized options, warrants, convertible or exchangeable securities, subscriptions, rights (including any preemptive rights), calls
or commitments of any character whatsoever, relating to any of the Blocker Interests or the Blocker Company Units, to which the Blocker
Seller or the GA Blocker is a party or is bound requiring the issuance, delivery or sale of equity interests of the GA Blocker. Except
as set forth on Schedule 5.5(b), there are no outstanding or authorized stock appreciation, phantom stock, profit participation
or similar rights with respect to any of the Blocker Interests or the Blocker Company Units to which the Blocker Seller or the GA Blocker
is a party or is bound. Except as set forth on Schedule 5.5(b), the GA Blocker has no authorized or outstanding bonds, debentures,
notes or other Indebtedness. There are no Contracts to which any of the Blocker Seller or the GA Blocker is a party or by which it is
bound to (x) repurchase, redeem or otherwise acquire any of the Blocker Interests or the Blocker Company Units or (y) vote or
dispose of any of the Blocker Interests or the Blocker Company Units. There are no irrevocable proxies and no voting agreements with respect
to any of the Blocker Interests or the Blocker Company Units.
5.6
Compliance With Laws; Litigation. The GA Blocker has at all times been, and is currently, in material compliance with all
Laws applicable to the GA Blocker. As of the date hereof, there are no Actions pending, or to the knowledge of the Blocker Seller, threatened
against the GA Blocker or any of its properties or assets before any Governmental Authority against or involving the GA Blocker. The GA
Blocker is not subject to any unsatisfied order, judgment, injunction, ruling, decision, award or decree of any Governmental Authority.
5.7
Taxes. Except as set forth in Schedule 5.7:
(a)
All material Tax Returns required to be filed by or with respect to the GA Blocker have been timely (within any applicable extension
periods) filed, and all such Tax Returns are true, complete and correct in all material respects.
(b) The GA Blocker has fully and timely paid all material Taxes owed by such company.
(c) All
material deficiencies for Taxes asserted or assessed in writing against the GA Blocker have been fully and timely (within any applicable
extension periods) paid, settled or properly reflected in the GA Blocker’s financial statements.
(d) No
audit, assessment or claim is pending or, to the knowledge of the GA Blocker or the Blocker Seller, threatened in writing with respect
to any material Taxes due from or with respect to the GA Blocker.
(e)
There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the
period for the collection or assessment or reassessment of, material Taxes due from the GA Blocker for any taxable period and no request
for any such waiver or extension is currently pending.
(f) There
are no Encumbrances for Taxes upon the assets or properties of the GA Blocker, except for Permitted Encumbrances.
(g) The
GA Blocker has not participated, or is currently participating, in any listed transaction within the meaning of Treasury Regulations
Section 1.6011-4(b)(2) (or any corresponding provision of state, local or foreign Tax Law).
(h) The
GA Blocker is not a party to any agreement, Contract or arrangement primarily relating to the sharing, allocation or indemnification
of Taxes, or has any liability for Taxes of any Person by reason of being a member of the affiliated group, within the meaning of Section 1504(a)
of the Code or filing consolidated federal income Tax Returns under Treasury Regulations Section 1.1502-6 or similar provision of
state, local or foreign Tax Law, or as a transferee or successor.
(i) The
GA Blocker has not executed or entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision of
state, local or foreign Tax Law, and the GA Blocker is not subject to any private letter ruling of the U.S. Internal Revenue Service
or comparable ruling of any other Governmental Authority.
(j) The
GA Blocker has not constituted a “distributing corporation” or a “controlled corporation” (within the meaning
of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the
Code (i) in the two years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a “plan”
or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with this acquisition.
(k) The
GA Blocker will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income
for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in accounting method made prior
to the Closing, (ii) closing or similar agreement with any Governmental Authority executed prior to the Closing, (iii) installment sale
or open transaction disposition made prior to the Closing, or (iv) election under Section 108(i) of the Code or (v) prepaid amount
received or deferred revenue accrued on or prior to the Closing Date.
5.8
Brokers. No broker, finder or similar intermediary has acted for or on behalf of the Blocker Seller in connection with this
Agreement or the transactions contemplated hereby, and no broker, finder, agent or similar intermediary is entitled to any broker’s,
finder’s or similar fee or other commission in connection therewith based on any agreement with the Blocker Seller or any action
taken by them.
5.9
Exclusivity of Representations. The representations and warranties made by the Blocker Seller in this Article 5
are the exclusive representations and warranties made by or concerning the Blocker Seller. Except as otherwise expressly set forth in
this Article 5, (a) the Blocker Seller expressly disclaims any representations or warranties of any kind or nature, express
or implied, written or oral, as to the condition, value or quality of any business or assets of the Blocker Seller and the Company Group,
and (b) the Blocker Seller specifically disclaim any representation or warranty of merchantability, usage, suitability or fitness for
any particular purpose with respect to the assets of the Blocker Seller, and the Company Group, any part thereof, the workmanship thereof,
and the absence of any defects therein, whether latent or patent, it being understood that except for the representations set forth in
this Article 5 such subject assets are “as is, where is” on the Closing Date, and in their present condition,
and the Parent Parties shall rely on their own examination and investigation thereof. The Blocker Seller is not, directly or indirectly,
making any representations or warranties regarding the pro-forma financial information, financial projections or other forward-looking
statements of the Blocker Seller or the GA Blocker.
Article 6
REPRESENTATIONS AND WARRANTIES OF THE PARENT PARTIES
Each of the Parent Parties represents and warrants
to the Company and the Blocker Seller as follows:
6.1 Organization.
Each Parent Party is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware.
Each Parent Party has all requisite corporate power and authority to own its properties, rights or other assets and carry on its
business in all material respects as presently owned or conducted, except where the failure to be so organized, existing and in good
standing or to have such power or authority would not reasonably be expected, individually or in the aggregate, to materially impair
or delay the ability of the Parent Parties to effect the transactions contemplated hereby. Each Parent Party was formed solely for
the purpose of engaging in the transactions contemplated by this Agreement and have engaged in no business activity other than as
contemplated by this Agreement. Except for obligations or liabilities incurred in connection with the transactions contemplated by
this Agreement, the Parent Parties have not and will not have incurred, directly or indirectly, through any Subsidiary or Affiliate,
any obligations or liabilities or engaged in any business activities of any type or kind whatsoever or entered into any material
agreements or arrangements with any Person.
6.2
Authority; Binding Obligation. Each Parent Party has full requisite corporate authority and power to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby. The execution of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of each Parent
Party and except with respect to the stockholder approvals of Merger Sub I and Merger Sub II, no other corporate proceedings on the part
of the Parent Parties are necessary to authorize this Agreement and the consummation of the transactions contemplated hereby by the Parent
Parties. This Agreement has been duly executed and delivered by the Parent Parties and, assuming that this Agreement constitutes the legal,
valid and binding obligations of the other parties hereto, constitutes the legal, valid and binding obligation of the Parent Parties,
enforceable against the Parent Parties in accordance with its terms, except to the extent that the enforceability thereof may be limited
by the Equitable Exceptions.
6.3
No Defaults or Conflicts. The execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby by the Parent Parties and performance by each Parent Party of its obligations hereunder (a) do not conflict with or result
in any violation of the charter, bylaws or other constituent documents of such Parent Party, and (b) do not conflict with, or result in
a breach of any of the terms or provisions of, or constitute a default under, or result in the acceleration of or create in any party
the right to accelerate, terminate, materially modify or cancel, with or without notice or lapse of time or both, any material Contract
to which a Parent Party is a party or by which a Parent Party is bound or to which the properties of the Parent Parties may be subject,
and (c) do not violate in any material respect any existing applicable Law of any Governmental Authority having jurisdiction over
the Parent Parties or any of their respective properties, except that no representation or warranty is made in the foregoing clauses (b) or
(c) with respect to such matters that would not reasonably be expected, individually or in the aggregate, to materially impair the ability
of a Parent Party to effect the transactions contemplated hereby.
6.4 No
Authorization or Consents Required. Except for applicable requirements of Antitrust Laws, no authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority will be required to be obtained or made by any Parent Party
in connection with the due execution, delivery and performance by such Parent Party of this Agreement and the consummation by such
Parent Party of the transactions contemplated hereby in each case for such authorizations, approvals, notices or filings with any
Governmental Authority that, if not obtained or made, would not reasonably be expected, individually or in the aggregate, to
materially impair the ability of the Parent Parties to effect the transactions contemplated hereby.
6.5
Brokers. No broker, finder or similar intermediary has acted for or on behalf of any Parent Party in connection with this
Agreement or the transactions contemplated hereby, and no broker, finder, agent or similar intermediary is entitled to any broker’s,
finder’s or similar fee or other commission in connection therewith based on any agreement with the Parent Parties or any action
taken by the Parent Parties.
6.6
Litigation. There is no Action pending or to the knowledge of Buyer, threatened against any Parent Party or any material
portion of their respective properties or assets before any Governmental Authority which questions the validity or legality of this Agreement
or the transactions contemplated hereby or which seeks to prevent the transactions contemplated hereby or otherwise would reasonably be
expected, individually or in the aggregate, to prevent or materially impair the ability of the Parent Parties to effect the transactions
contemplated hereby.
6.7
Reliance. Each of the Parent Parties acknowledges that it and its Representatives have been permitted full and complete
access to the books and records, facilities, equipment, Tax Returns, Contracts, insurance policies (or summaries thereof) and other properties
and assets of the Company Group that it and its Representatives have desired or requested to see or review, and that it and its Representatives
have had a full opportunity to meet with the officers and employees of the Company Group to discuss the business of the Company Group.
The Parent Parties acknowledge that none of the Company Group, the Blocker Seller or any other Person has made any representation or
warranty, express or implied, written or oral, as to the accuracy or completeness of any information that the Blocker Seller or the Company
Group furnished or made available to the Parent Parties and their respective Representatives, and none of the Blocker Seller, the Merger
Participants or any other Person (including any Representative of the Blocker Seller, the Company Group or the Merger Participants) shall
have or be subject to any liability to the Parent Parties, or any other Person, resulting from any of the Parent Parties’ use of
any information, documents or material made available to any Parent Party in any “data rooms,” management presentations,
due diligence or in any other form in expectation of the transactions contemplated hereby. The Parent Parties acknowledge that, should
the Closing occur, Buyer shall acquire the Company Group without any representation or warranty as to merchantability or fitness for
any particular purpose of their respective assets, in an “as is” condition and on a “where is” basis. The Parent
Parties acknowledge that, except for the representations and warranties contained in Article 4 and Article 5
(which the Parent Parties acknowledge shall not survive following the Closing), neither the Company, the Blocker Seller nor any other
Person has made, and none of the Parent Parties have relied on, any other representation or warranty, express or implied, written or
oral, by or on behalf of the Company or the Blocker Seller. Each of the Parent Parties acknowledges that neither the Company, the Blocker
Seller nor any other Person, directly or indirectly, has made, and Buyer has not relied on, any representation or warranty regarding
the pro-forma financial information, financial projections or other forward-looking statements of the Company Group, and none of the
Parent Parties will make any claim with respect thereto.
6.8
Investment Purpose. Buyer will be purchasing the Company Units and the Blocker Interests for the purpose of investment and
not with a view to, or for resale in connection with, the distribution thereof in violation of applicable federal, state or provincial
securities Laws. Each of the Parent Parties acknowledges that the sale of the Company Units and the Blocker Interests hereunder has not
been registered under the Securities Act of 1933 and the rules promulgated thereunder (the “Securities Act”) or any
state securities Laws, and that the Company Units and the Blocker Interests may not be sold, transferred, offered for sale, pledged, hypothecated,
or otherwise disposed of without registration under the Securities Act, pursuant to an exemption from the Securities Act or in a transaction
not subject thereto. Buyer represents that it is an “Accredited Investor” as that term is defined in Rule 501 of Regulation
D of the Securities Act.
6.9
Financing. Each of the Parent Parties affirms that it is not a condition to the Closing or to any of its other obligations
under this Agreement that such Parent Party obtain financing for or related to any of the transactions contemplated hereby. Buyer has
delivered to the Company true, correct, and complete copies of (i) the executed Equity Commitment Letter (the commitments thereunder,
the “Equity Financing Commitments”) to provide to Buyer, subject to the terms and conditions therein, cash in the
aggregate amount set forth therein (the “Equity Financing”), and (ii) the executed Debt Commitment Letter (the commitments
under the Debt Commitment Letter, the “Debt Financing Commitments” and, together with the Equity Financing Commitments,
the “Financing Commitments”) (provided, that provisions in the Commitment Letters and any fee letters related to fees
and economic terms and any “market flex” terms may be redacted), pursuant to which, and subject to the terms and conditions
of which, the lenders party thereto have committed to lend the amounts set forth therein to Buyer for the purpose of funding the transactions
contemplated hereby (the “Debt Financing” and, together with the Equity Financing, collectively referred to as the
“Financing”). None of the Commitment Letters has been amended or modified prior to the date hereof, and no such amendment
or modification is contemplated as of the date hereof (except with respect to any “market flex” terms contained in that certain
fee letter of even date herewith and related to the Debt Commitment Letter (a redacted version of such fee letter has been provided as
of the date hereof)), other than, in the case of the Debt Commitment Letter, for any amendment or modification which would not reasonably
be expected to impair or materially adversely affect the ability of the Parent Parties to consummate the Closing, and the respective
commitments contained in the Commitment Letters have not been withdrawn or rescinded in any respect as of the date hereof (and, to the
knowledge of Buyer, no such withdrawal or rescission is contemplated as of the date hereof). As of the date hereof, there are no side
letters or other Contracts or arrangements that would reasonably be expected to impair or adversely affect the amount, availability or
conditions of the Financing other than as expressly set forth in the Commitment Letters furnished to the Company pursuant to this Section 6.9.
As of the date hereof, the Commitment Letters are not subject to any conditions precedent or other contingencies relating to the funding
of the full amount of the Financing other than as set forth in the Commitment Letters delivered to the Company and, on the date hereof,
are binding and in full force and effect and are the legal, valid (assuming due authorization, execution and delivery by the other parties
thereto), binding and enforceable obligations of the Parent Parties and, to the knowledge of Buyer, each of the other parties thereto,
as the case may be, except as such enforceability may be limited by (a) applicable insolvency, bankruptcy, reorganization, moratorium
or other similar laws affecting creditors’ rights generally, and (b) applicable equitable principles (whether considered in a proceeding
at law or in equity). All commitments and other fees required to be paid under the Commitment Letters prior to the date hereof have been
paid in full. Assuming (i) the Equity Financing is funded in accordance with the terms of the Equity Commitment Letter and (ii) the satisfaction
of the conditions set forth in Article 8, the aggregate proceeds contemplated by the Equity Commitment Letter, together with
available funds of the Parent Parties, will, in the aggregate, be sufficient for the Parent Parties to complete the transactions contemplated
by this Agreement, and to satisfy all of the obligations of the Parent Parties under this Agreement, including (i) paying the Base Blocker
Seller Consideration, the Merger Participant Closing Date Consideration, the Loan Agreement Payoff Amount, the Seller Expenses and amounts
payable in respect of Phantom Units (if required) pursuant to Section 2.7(a)(v), each at Closing, and (ii) paying all related
fees and expenses. Assuming the satisfaction of the conditions set forth in Article 8, to the knowledge of Buyer, there exists
no fact or occurrence existing on the date hereof that would reasonably be expected to cause the Commitment Letters to be ineffective.
Article 7
COVENANTS
Unless this Agreement is terminated pursuant to Article 10,
the parties hereto covenant and agree as follows:
7.1
Conduct of Business of the Company.
(a) Except
as expressly contemplated by this Agreement or as otherwise set forth in Schedule 7.1, during the period from the date
of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10,
the Company shall, and to cause the Company Subsidiaries to, conduct their respective business and operations in the ordinary course
in all material respects and use commercially reasonable efforts to preserve in all material respects its and their present
relationships with their material customers, vendors and suppliers and keep available the services of the executive officers and
other key employees of the Company and the Company Subsidiaries. Without limiting the generality of the foregoing, without the prior
written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed; provided, that Buyer
shall respond no later than five (5) Business Days following receipt of the Company’s written request for such response), the
Company shall not, and shall cause the Company Subsidiaries not to, undertake any of the following actions:
(i)
issue, sell, transfer, encumber or pledge, or authorize or propose the issuance, sale, transfer, pledge of or subject to any Encumbrance
(in each case, other than Permitted Encumbrances with respect to equity securities of the Company Subsidiaries) (A) equity interests
of the Company (including the Company Units and awards under the Phantom Equity Plan), or any Company Subsidiary, or securities convertible
into or exchangeable for any such equity interests, or any rights, warrants or options to acquire any such equity interests or other convertible
securities of the Company or any Company Subsidiary or (B) any other securities in respect of, in lieu of, or in substitution for
equity interests of the Company (including the Company Units) or any Company Subsidiary outstanding on the date hereof;
(ii) redeem,
purchase or otherwise acquire any outstanding equity interests of the Company or any Company Subsidiary except for any redemption, purchase
or acquisition from any employee of the Company or any Company Subsidiary in connection with the departure of such employee or, in the
case of the Company, declare or pay any dividend or distribution; provided, that nothing in this Agreement shall restrict the
Company or any Company Subsidiary from declaring or paying any cash dividend or distribution that is paid in full prior to the Closing
Date;
(iii)
(A) adopt any amendment to the organizational documents of the Company or any Company Subsidiary or (B) split, reclassify or combine
any of its equity securities;
(iv) incur any Indebtedness that cannot be paid off at Closing (other than ordinary course borrowings under the Loan Agreement and other
performance bonds or letters of credit entered into in the ordinary course of business consistent with past practice);
(v) except
as required under Company Plans in effect as of the date hereof or pursuant to Law, (A) increase the compensation or benefits of
any of its directors, officers, or any other employees (except for annual increases in compensation for employees that have an annual
base salary less than $125,000 that are in the ordinary course of business), (B) pay or agree to pay, grant, increase, fund, accelerate
the vesting or payment of, any pension, retirement allowance, severance or termination pay, or other employee benefit to any director,
officer or employee, whether past or present (except severance or termination pay for non-executive officer employees in the ordinary
course of business consistent with past practice), (C) enter into, adopt, terminate, or amend any Company Plan, employment, bonus, severance
or retirement Contract or other employee benefit plan or (D) hire any new executive officer or terminate the employment of any current
executive officer other than for cause;
(vi) sell,
lease, transfer or otherwise dispose of, any of its property, rights or assets other than (A) inventory, supplies or other materials
in the ordinary course of business and (B) sales of obsolete assets or assets with de minimis value;
(vii)
make any loans, advances or capital contributions, except advances for travel and other normal business expenses to officers and
employees in the ordinary course of business consistent with past practice;
(viii)
(A) materially amend, become subject to, or terminate any Material Contract of the type described in Sections 4.10(a), 4.10(d),
4.10(g), 4.10(h), or any Lease (other than (x) bidding for, entering into or renewing Contracts with customers, distributors
or suppliers in the ordinary course of business consistent with past practice, (y) terminations of Contracts and Leases as a result
of the expiration of the term of such Contracts or Leases and (z) renewals of Leases in the ordinary course of business consistent
with past practice, (B) enter into any Contract that would require a payment to or give rise to any rights to such other party or parties
in connection with the transactions contemplated by this Agreement to the extent such payment would not constitute a Seller Expense or
(C) terminate or amend the Acknowledgment Letter;
(ix) acquire
(A) any business or Person or all or substantially all of the assets of any Person, by merger or consolidation, purchase of substantial
assets or equity interests, or by any other manner, in a single transaction or a series of related transactions or (B) any equity, debt
or other securities of any Person (other than a wholly owned Subsidiary of the Company);
(x) make any change in any method of accounting or auditing practice other than those required by GAAP;
(xi) settle,
compromise or discharge any Action, other than those that do not involve (A) the payment by the Company or any Company Subsidiaries of
monetary damages at any time on or after the Closing Date, (B) any alleged criminal wrongdoing on the part of the Company or any Company
Subsidiaries and (C) any injunctive or non-monetary relief sought against the Company or any Company Subsidiaries;
(xii) plan,
announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort
concerning the termination of employment of employees of the Company or any Company Subsidiary that would constitute a “mass layoff”
or “plant closing” (as defined under the Worker Adjustment and Retraining Notification Act of 1988 and similar state and
local Laws);
(xiii)
enter into, modify or amend, any transaction or Contract with, any Company Affiliated Person, other than ordinary course transactions
on arms’-length terms with portfolio companies of General Atlantic LLC or of its Affiliates;
(xiv) subject
to Section 7.14(f) make or change any material Tax election, file any amended Tax Return, adopt or change any Tax accounting
period or methods, settle or compromise any material Tax claim relating to the Company or any of the Company Subsidiaries, surrender
any right to claim a refund of a material amount of Taxes, agree to an extension or waiver of the statute of limitations with respect
to the assessment or determination of material Taxes;
(xv) cancel
or reduce any insurance coverage other than with respect to any Company Plan in the ordinary course of business consistent with past
practice;
(xvi) adopt
or effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization,
exchange or readjustment of stock or units, stock or unit dividend or distribution or like change in the capitalization of the Company
or any of Subsidiaries; or
(xvii)
authorize or agree to take any of the foregoing actions.
Notwithstanding anything to the contrary contained
herein, nothing contained in this Agreement (A) will give Buyer, directly or indirectly, rights to control or direct the business or operations
of the Company or the Company Subsidiaries prior to the Closing or (B) shall operate to prevent or restrict any act or omission by the
Company or the Company Subsidiaries the taking of which is required by applicable Law. Prior to the Closing, the Company shall, and shall
cause the Company Subsidiaries to, exercise consistent with the terms and conditions of this Agreement, control of their business and
operations.
(b)
During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance
with Article 10, neither Blocker Seller nor GA Blocker shall undertake any of the following actions:
(i)
issue, sell, transfer, repurchase, pledge or otherwise subject to any Encumbrance, any Blocker Interests or take any action that
would result in any of the representations and warranties in Section 5.1(b) to not be true and correct as of the Closing or
Section 5.7 to not be true and correct in any material respect as of the Closing;
(ii)
(A) adopt any amendment to the organizational documents of the GA Blocker, (B) split, reclassify or combine any of the GA Blocker’s
equity interests or (C) make any declaration or payment of any dividend or distribution by GA Blocker other than any cash dividends or
distributions (whether on equity or in connection with the repayment of debt of the GA Blocker) that are declared and paid prior to the
Closing Date;
(iii)
adopt a plan or agreement of complete or partial liquidation or dissolution, merger, plan of arrangement, amalgamation, consolidation,
restructuring, recapitalization or other reorganization of GA Blocker;
(iv)
subject to Section 7.14(f), make or change any material Tax election, file any amended Tax Return, adopt or change
any Tax accounting period or methods, settle or compromise any material Tax claim, surrender any right to claim a refund of a material
amount of Taxes, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material
Taxes; or
(v)
authorize or agree to take any of the foregoing actions.
7.2
Access to Information; Confidentiality; Public Announcements.
(a) During
the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance
with Article 10, the Blocker Seller and the Company shall give Buyer and its authorized Representatives, and the Debt
Financing Sources and their authorized Representatives (but only to the extent, in the case of the Debt Financing Sources, required
in connection with the provision of the Debt Financing), reasonable access during normal business hours to all books, records,
offices and other facilities and properties of the Company Group and the officers and employees of the Company Group as Buyer and
its authorized Representatives or the Debt Financing Sources and their authorized Representatives may from time to time reasonably
request; provided, however, that (i) any such access shall be subject to the Company Group’s reasonable security
measures and insurance requirements and conducted in a manner not to unreasonably interfere with the businesses or operations of the
Company Group, (ii) Buyer and its Representatives shall not contact or otherwise communicate with the suppliers of the Company Group
unless, in each instance, approved in writing in advance by an executive officer of the Company (such approval not to be
unreasonably withheld, conditioned or delayed), (iii) notwithstanding anything to the contrary in this Agreement, neither the
Blocker Seller nor the Company Group shall be required to disclose any information to Buyer or its authorized Representatives or the
Debt Financing Sources or their authorized Representatives if doing so could violate any Law to which the Blocker Seller or the
Company Group is a party or to which the Blocker Seller or the Company Group is subject and (iv) nothing herein shall require the
Blocker Seller or the Company Group to furnish to Buyer or provide Buyer (or the Debt Financing Sources) with access to information
that is subject to attorney-client privilege but each shall take reasonable steps to provide such information if requested by Buyer
or the Debt Financing Sources (collectively the “Access and Assistance Limitations”).
(b)
Any information provided to or obtained by Buyer or its authorized Representatives or the Debt Financing Sources and their authorized
Representatives pursuant to paragraph (a) above shall be “Confidential Information” (herein referred to as “Confidential
Information”) as defined in the non-disclosure agreement, dated April 11, 2017, by and between the Company and Hellman &
Friedman Advisors LLC (the “Confidentiality Agreement”), and shall be held by Buyer and the Debt Financing Sources
in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the
terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein.
In the event of the termination of this Agreement for any reason, Buyer shall comply with the terms and provisions of the Confidentiality
Agreement, including returning or destroying all Confidential Information, subject to the terms and conditions set forth in the Confidentiality
Agreement. Subject to the occurrence of the Closing, the Confidentiality Agreement shall terminate on the Closing Date.
(c) No
party will (and each party shall cause its Affiliates not to) issue or cause the publication of any press release or other public
announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the party
whose name is being disclosed and shall keep the terms of this Agreement and the other documents executed in connection herewith
confidential; provided, however, that nothing herein will prohibit (i) any party (or such Affiliate as the case may
be) from issuing or causing publication of any such press release or public announcement to the extent that such disclosure is, upon
advice of counsel, required by Law, in which case the party (or such Affiliate, as the case may be) making such determination will,
if practicable in the circumstances, use reasonable efforts to (x) allow the other parties reasonable time to comment on such
release or announcement in advance of its issuance, (y) to obtain “confidential treatment” and (z) to redact any terms
or provisions as a non-disclosing party may reasonably request or (ii) General Atlantic LLC, Hellman & Friedman LLC or any of
their respective Affiliates from (x) disclosing such information to their respective Representatives, investors or prospective
investors, in each case, who are subject to customary confidentiality obligations or (y) disclosing on their respective worldwide
web pages, www.generalatlantic.com and www.H&F.com, the sale of the Company and the identity of Buyer or the acquisition of the
Company and the identity of General Atlantic LLC in its capacity as seller of the Company, as the case may be. Notwithstanding
anything contained herein to the contrary, in no event will the Company, any Company Subsidiaries or General Atlantic LLC have any
right to use Hellman & Friedman LLC’s or its Affiliates’ name or mark, or any abbreviation, variation or derivative
thereof, in any press release, public announcement or other public document or communication without the express written consent of
Hellman & Friedman LLC, and in no event will Buyer have any right to use General Atlantic LLC’s or its Affiliates’
name or mark or any abbreviation, variation or derivative thereof, in any press release, public announcement or other public
document or communication without the express written consent of General Atlantic LLC. Promptly following the Closing, Buyer shall
(or shall cause the Surviving LLCs to) take all action necessary to amend the name of each Surviving LLC so that such Surviving
LLC’s name does not contain “General Atlantic” or is otherwise in any way uses or is associated with General
Atlantic LLC or its Affiliates’ name or mark, or any abbreviation, variation or derivative thereof.
7.3
Filings and Authorizations; Consummation.
(a)
Buyer and the Company shall, within five (5) Business Days following the date hereof, file or supply, or cause to be filed or supplied
in connection with the transactions contemplated herein, all notifications and information required to be filed or supplied pursuant to
the HSR Act. Buyer and the Company shall, promptly following the date hereof, file or supply, or cause to be filed or supplied in connection
with the transactions contemplated herein, all filings set forth on Schedule 4.6. Buyer acknowledges and agrees that it shall pay
and shall be solely responsible for the payment of all filing fees in connection with the filings under this Section 7.3(a).
(b)
Each of Buyer and the Company, as promptly as practicable, shall make, or cause to be made, all other filings and submissions
not otherwise addressed under Section 7.3(a), including as required under Laws applicable to it, or to the Company Group and
their respective Affiliates, as may be required for it to consummate the transactions contemplated herein and shall use its commercially
reasonable efforts (which shall not require either party to make any payment or concession to any Person in connection with obtaining
such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons
and Governmental Authorities necessary to be obtained by it, the Company Group or their respective Affiliates, in order for it to consummate
such transactions.
(c)
The parties hereto shall coordinate and cooperate with one another in exchanging and providing such information to each other and
in making the filings and requests referred to in paragraphs (a) and (b) above. Each party hereto shall supply such reasonable assistance
as may be reasonably requested by the other party hereto in connection with the foregoing.
(d) Without
limiting the generality of the parties’ undertakings pursuant to Sections 7.3(b) and 7.3(c), Buyer agrees to use
reasonable best efforts and to take any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust
Laws or other Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to
expeditiously close the transactions contemplated by this Agreement no later than the Termination Date, including proposing,
negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divesture or disposition
of its assets, properties or businesses or of the assets, properties or businesses to be acquired by it pursuant hereto as are
required to be divested in order to avoid any injunction (or to effect the dissolution thereof), temporary restraining order or
other order or decision in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the
consummation of such transactions. In addition, Buyer and the Company shall use commercially reasonable efforts to defend through
litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any
decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the Closing by the Termination Date.
(e) Each
party hereto shall promptly inform the other parties of any material communication from the Federal Trade Commission, the Department
of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. If any party or any
Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect
to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon
as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. Buyer
will advise the Company promptly in respect of any understandings, undertakings or agreements (oral or written) which Buyer proposes
to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection
with the transactions contemplated by this Agreement.
(f)
Except as specifically required by this Agreement, Buyer, on the one hand, and the Company Group on the other hand, shall not knowingly
take any action, or knowingly refrain from taking any action, the effect of which would be to delay or impede the ability of the parties
hereto to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, Buyer shall not,
and shall not permit any of its Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial
portion of the assets of or equity in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire
any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger or consolidation
could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any consent, approval,
authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to consummate
the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) increase the risk of
any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby or (iii) delay
the consummation of the transactions contemplated hereby.
7.4
Resignations. The Company shall deliver to Buyer on the Closing Date such resignations of members of the board of directors
of the Company Group which have been requested in writing by Buyer at least five (5) Business Days prior to the Closing, such resignations
to be effective concurrently with the Closing.
7.5 Further
Assurances. From the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10,
each of the parties hereto shall execute such documents and perform such further acts as may be reasonably required to carry out the
provisions hereof and the actions contemplated hereby. Each party shall, on or prior to the Closing Date, use its reasonable best
efforts to fulfill or obtain the fulfillment of the conditions precedent to the consummation of the transactions contemplated
hereby, including the execution and delivery of any documents, certificates, instruments or other papers that are reasonably
required for the consummation of the transactions contemplated hereby. Without limiting the foregoing, (i) (A) in accordance with Section 3.2(b) of
the Company LLC Agreement, on or prior to the date hereof the Company shall deliver (or shall have delivered, as applicable) to all
Members (as defined in the Company LLC Agreement) that hold Voting Units (as defined in the Company LLC Agreement) a copy of the
form of Member Approval attached hereto as Exhibit D and (B) on the date hereof the Company will deliver written confirmation
to Buyer that clause (i)(A) has been satisfied and (ii) no later than two (2) Business Days after the delivery thereof, the GA
Blocker shall execute and deliver to the Company and Buyer, the final Member Approval.
7.6
Officer and Director Indemnification and Insurance.
(a)
Buyer agrees that all rights to indemnification, advancement of expenses and exculpation from liability for acts or omissions occurring
on or prior to the Closing Date now existing in favor of the current or former directors or officers of the Company Group and the fiduciaries
of any Company Plans (the “Indemnified Parties”), as provided in the respective organizational documents, indemnification
agreements, or otherwise in effect on the date hereof, shall survive the Closing Date and shall continue in full force and effect in accordance
with their respective terms for a period of not less than six (6) years after the Closing Date. The indemnification, advancement
of expenses and exculpation provisions of the Company Group’s organizational documents shall not be amended, repealed or otherwise
modified after the Blocker Merger Effective Time and the Company Merger Effective Time in any manner that would adversely affect the rights
thereunder of individuals who, as of the date hereof and prior to the Blocker Merger Effective Time and Company Merger Effective Time,
were directors, officers, employees or agents of the Company Group, unless such modification is required by applicable Law.
(b) Buyer
shall cause the Company to indemnify all Indemnified Parties to the fullest extent permitted by applicable Law with respect to all
acts and omissions arising out of or relating to their services as directors or officers of the Company Group or another Person, if
such Indemnified Party is or was serving as a director, officer or employee of such other Person at the request of the Company
Group, or fiduciaries of the Company Plans, whether asserted or claimed at or after or occurring before the Closing (including in
connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated by this
Agreement or otherwise). If any Indemnified Party is or becomes involved in any Action in connection with any matter subject to
indemnification hereunder, then the Company shall advance as incurred any costs or expenses (including reasonable legal fees and
disbursements), judgments, fines, losses, damages or liabilities (“Losses”) arising out of or incurred in
connection with such Action, subject to the Company’s receipt of an undertaking by or on behalf of such Indemnified Party, if
required by applicable Law, to repay such Losses if it is ultimately determined under applicable Law that such Indemnified Party is
not entitled to be indemnified. In the event of any such Action, Buyer shall and shall cause the Company Group to cooperate with the
Indemnified Party in the defense of any such Action.
(c)
On the Closing Date, Buyer shall purchase and pay for a non-cancelable run-off insurance policy, for a period of six (6) years
after the Closing Date to provide insurance coverage of not less than the existing coverage, for events, acts or omissions occurring on
or prior to the Closing Date for all persons who were directors, managers or officers of the Company Group on or prior to the Closing
Date, which policy shall contain terms and conditions no less favorable to the insured persons than the directors’ and officers’
liability insurance coverage presently maintained by the Company Group.
(d)
Buyer and the Company hereby acknowledge that the Indemnified Parties may have certain rights to indemnification, advancement of
expenses or insurance provided by other Persons. Buyer hereby agrees that (i) Buyer shall cause the applicable member of the Company
Group to be the indemnitor of first resort (i.e., its obligations to the Indemnified Parties are primary and any obligation of such other
Persons to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any such Indemnified Party
are secondary), (ii) Buyer shall cause the applicable member of the Company Group to advance the full amount of expenses incurred
by any such Indemnified Party (subject to an obligation to reimburse if ultimately found by final non-appealable order to not be entitled
to indemnification) and shall be liable for the full indemnifiable amounts, without regard to any rights any such Indemnified Party may
have against any such other Person and (iii) Buyer shall cause the applicable member of the Company Group to irrevocably waive, relinquish
and release such other Persons from any and all claims against any such other Persons for contribution, subrogation or any other recovery
of any kind in respect thereof. Buyer further agrees that no advancement or payment by any of such other Persons on behalf of any such
Indemnified Party with respect to any claim for which such Indemnified Party has sought indemnification from the applicable member of
the Company Group shall affect the foregoing and such other Persons shall have a right of contribution or be subrogated to the extent
of such advancement or payment to all of the rights of recovery of such Indemnified Party against the applicable member of the Company
Group.
(e)
The covenants contained in this Section 7.6 are intended to be for the benefit of, and shall be enforceable by, each
of the Indemnified Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights
to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
(f) In
the event that Buyer or the Company Group (following the Closing) or any of their respective successors or assigns
(i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person,
then, and in each such case, Buyer shall take all necessary action so that the successors or assigns of Buyer or the Company Group
(following the Closing), as the case may be, shall succeed to the obligations set forth in this Section 7.6.
7.7
Exclusivity. Until the earlier of the Closing and such time as this Agreement is terminated in accordance with Article 10,
except for the transactions contemplated by this Agreement, the Blocker Seller and the Company will not, and will cause the Company Group,
and their respective Representatives not to, directly or indirectly, solicit, knowingly encourage or enter into any negotiation, discussion,
Contract, agreement, instrument, arrangement or understanding with, or provide any information to, any party, with respect to the sale
of the Blocker Interests or the Company Units or all or substantially all the assets of the Company and the Company Subsidiaries (each,
an “Alternative Transaction”). Promptly after the execution of this Agreement, Blocker Seller and the Company shall,
and shall cause their respective Representatives and Affiliates to and any Company Subsidiaries and their respective Representatives to
terminate any and all negotiations or discussions with any third party regarding any Alternative Transaction (other than notification
to such third party that the Company Group is terminating such negotiations or discussions) and shall request any such third party to
return or destroy any confidential information of the Company in accordance with, and subject to, the terms of any confidentiality agreement
between the Company and such third party.
7.8
Waiver of Conflicts Regarding Representation. Recognizing that Paul, Weiss has acted as legal counsel to the Blocker Seller,
and may be deemed to have acted as legal counsel to the Company Group prior to the Closing, and that Paul, Weiss intends to act as legal
counsel to the Blocker Seller after the Closing, Buyer hereby waives and agrees to cause the Company Group to waive, any conflicts that
may arise in connection with Paul, Weiss representing the Blocker Seller after the Closing, including any litigation, claim or obligation
arising out of or relating to this Agreement or the transactions contemplated hereby. Buyer (on behalf of itself and, following the Closing,
the Company Group) also further agrees that, as to all communications involving attorney-client confidences among Paul, Weiss, on the
one hand, and the Blocker Seller, the Company Group or any of their respective Affiliates or Representatives, on the other hand, that
relate in any way to the transactions contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence
belongs to the Blocker Seller and may be controlled by the Blocker Seller and shall not pass to or be claimed by Buyer or the Company
Group. Notwithstanding the foregoing, in the event that a dispute arises between Buyer, the Blocker Seller or the Company Group and a
third party other than the Blocker Seller or any of their Affiliates after the Closing, such Person may assert or waive the attorney-client
privilege to prevent disclosure of confidential communications by Paul, Weiss to such third party; provided, however, that
neither Buyer nor the Company Group may waive such privilege with respect to the Blocker Seller without the prior written consent of the
Blocker Seller.
7.9
Employee Matters.
(a)
From and after the Closing Date until the first anniversary thereof, Buyer shall, or shall cause the Company and each Company Subsidiary
to, provide (i) a base salary or base wages to each employee of the Company or any Company Subsidiary at an annual rate that is no
less than the annual rate of the base salary or base wages that was provided to such employee immediately prior to the Closing, (ii) the
same short-term (annual or more frequent) bonus or commission opportunity provided to such employee immediately prior to Closing and (iii) employee
benefits (including severance but excluding equity or equity-based compensation) that are substantially similar in the aggregate to those
provided to the employees of the Company or any Company Subsidiary immediately prior to the Closing; provided, however,
that except as otherwise set forth in any agreement (other than this Agreement) with any employee of the Company or any Company Subsidiary
or required by applicable Law, nothing herein shall preclude Buyer, the Company or any Company Subsidiary from terminating the employment
of any employee at any time on or after the Closing.
(b)
Except as specifically provided herein, Buyer shall, and shall cause, service rendered by employees of the Company and each Company
Subsidiary prior to the Closing Date to be taken into account for all purposes including participation, coverage, vesting and level of
benefits (but not for purposes of benefit accruals under any defined benefit pension plan), as applicable, under all employee benefit
plans, programs, policies and arrangements of Buyer and its Subsidiaries (including the Company and each Company Subsidiary) from and
after the Closing Date, to the same extent as such service was taken into account under corresponding plans of the Company and each Company
Subsidiary for such purposes; provided, however, that nothing herein shall result in the duplication of any benefits. Without
limiting the foregoing, Buyer shall use commercially reasonable efforts to ensure that employees of the Company and each Company Subsidiary
will not be subject to any pre-existing condition or limitation under any health or welfare plan of Buyer or its Subsidiaries (including
the Company and each Company Subsidiary) for any condition for which such employee would have been entitled to coverage under the corresponding
plan of the Company and each Company Subsidiary in which such employee participated immediately prior to the Closing Date. Buyer shall,
and shall cause, such employees to be given credit under such plans for co-payments made, and deductibles satisfied, prior to the Closing
Date.
(c)
Notwithstanding anything to the contrary herein, nothing contained in this Section 7.9 shall (i) confer any rights,
remedies or claims upon any third party, including any employee of the Company or any Company Subsidiary, (ii) be considered to be
an amendment of, or require an amendment to, any Company Plan or any employee benefit plan, program or arrangement of Buyer and its Subsidiaries,
(iii) obligate Buyer, the Company or any of its Subsidiaries or any of their respective Affiliates’ (including the Surviving LLC)
to maintain any particular compensation or benefit plan, program, policy or arrangement or (iv) create any obligations of the parties
with respect to any Company Plan or other employee benefit plan of Buyer or the Company.
7.10
Equity Plan Matters. Prior to the Closing Date, the Company shall:
(a)
take all actions necessary to provide that (A) all Incentive Units issued under the Incentive Plan that are subject solely to service-based
vesting conditions shall, effective as of the Closing, be deemed 100% vested as of immediately prior to the Closing and (B) all Incentive
Units that do not become vested as of Closing pursuant to the preceding clause (A) or otherwise pursuant to their terms shall be forfeited
without payment of consideration;
(b)
take all actions necessary to provide (i) that all phantom units issued and outstanding under the Phantom Equity Plan (the “Phantom
Units”), whether vested or unvested, shall, effective as of the Closing, be canceled and in full satisfaction thereof, each
holder thereof shall receive a cash payment (the “Phantom Unit Payment”) in accordance with the terms of the Phantom
Equity Plan assuming for such purposes that each such Phantom Unit was fully vested and (ii) that Phantom Unit Future Bonus Rights will
be terminated in connection with the payments being made in respect of the Phantom Units. In accordance with the immediately preceding
sentence, the Phantom Unit Payment for each Phantom Unit shall equal the sum of (A) the Merger Participant Closing Date Consideration
that an Incentive Unit with the same economic terms (that is not a Rollover Unit) would have received, but without any reduction for amounts
to be contributed to the Adjustment Escrow Amount or the Seller Representative Expense Account with respect to the Phantom Units (if such
Phantom Units were Incentive Units), (B) the portion of the Deferred Company Consideration payable in respect of each Phantom Unit as
calculated pursuant to the Company LLC Agreement and the Phantom Equity Plan (assuming no reduction of the Deferred Company Consideration
pursuant to clause (b) of the definition thereof) and (C) an additional amount per Phantom Unit equal to the Company’s
Board of Directors good faith determination of the fair value per Common Unit of the 2017 CVR. In accordance with the terms governing
the Phantom Units, the Phantom Unit Payment shall be reduced by any payment already paid to the holder of Phantom Units in December 2016
in connection with the Company’s 2016 recapitalization and, subject to receiving the consent of the holder of the applicable Phantom
Unit to the extent necessary, shall be deemed inclusive of any Phantom Unit Future Bonus Rights. In connection with the foregoing, the
Company shall request from each holder of Phantom Units prior to Closing, as a condition to the payment of such holder’s Phantom
Unit Payment, an acknowledgement and release with respect to the termination of the Phantom Equity Plan, the Phantom Units and the Phantom
Unit Future Bonus Rights, which, among other things, shall provide that the Phantom Unit Payment constitutes the total consideration to
be received by such holder in connection with the Mergers in respect of such holder’s Phantom Units, and that following the Closing
such holder shall not be entitled to any payments pursuant to Section 2.8(e), Section 2.11, Section 2.12
or Section 11.20(c) of this Agreement.
7.11
FIRPTA Certificates. On or prior to the Closing Date, (i) the Company shall deliver to Buyer a certificate in compliance
with Treasury Regulations Section 1.1445-11T and (ii) the GA Blocker shall deliver to Buyer and the Blocker Seller a certificate
or certificates and notice in compliance with Treasury Regulations Sections 1.1445-2(c) and 1.897-2(h) (together with the certificate
described in clause (i), the “FIRPTA Certificates”), in each case certifying that the transactions contemplated by
this Agreement with respect to the equity holders of such entities are exempt from withholding under Section 1445 of the Code; provided,
that, notwithstanding anything in this Agreement to the contrary, Buyer’s sole right if the Company or the GA Blocker fails to
provide such certificate shall be to make an appropriate withholding under Sections 897 and 1445 of the Code.
7.12
Access to Books and Records. From and after the Closing, Buyer shall, and shall cause the Company Group to, provide the
Seller Representative and its authorized representatives with reasonable access (for the purpose of examining and copying), during normal
business hours, to the books and records of the Company Group with respect to periods prior to the Closing Date; provided, that
such access shall be reasonably required by such Person in connection with any insurance claims by, Actions or Tax audits against, governmental
investigations of, compliance with legal requirements by, or the preparation of financial statements of such Person; provided,
further, that such access shall not unreasonably interfere with the normal business operations of the Company, Buyer or any of
their respective Subsidiaries. Notwithstanding anything to the contrary set forth in this Section 7.12, neither the
Company nor Buyer shall be required to disclose to the Seller Representative or its representatives any information if doing so would
violate attorney-client privilege or applicable Law. Unless otherwise consented to in writing by the Seller Representative, Buyer shall
not permit the Company Group, for a period of seven (7) years following the Closing Date, to destroy or otherwise dispose of any books
and records of the Company Group, or any portions thereof, relating to periods prior to the Closing Date, except in accordance with their
bona fide record retention policies consistent with past practice.
7.13
Blocker Capitalization. Prior to the Closing provided for in Article 3, the Blocker Seller will contribute all
of its interest in the Blocker Note to the capital of the GA Blocker on terms reasonably satisfactory to Buyer (the “Blocker
Capitalization”).
7.14
Tax Matters.
(a) Pre-Closing
Tax Periods. From and after the Closing, except as provided in Section 7.14(b) and Section 7.14(f),
without the consent of the Tax Representative, which consent shall not be unreasonably withheld, delayed or conditioned, Buyer shall
not, and shall not permit any of its Affiliates (including the Company Group) to (i) make any income Tax election, (ii) amend any
income Tax Return, (iii) initiate any voluntary disclosure with respect to income taxes, (iv) voluntarily approach a Governmental
Authority with respect to income Taxes or (v) waive or extend any statute of limitations for the assessment or collection of any
income Tax of the Company Group with respect to any Tax period (or portion thereof) before the Closing Date if any such action could
reasonably be expected to materially and adversely impact the Blocker Seller, the Merger Participants or any direct or indirect
owners thereof. Buyer shall not, and shall not permit any of its Affiliates (including the Company Group) to take any action outside
the ordinary course of business on the Closing Date after the Closing, other than actions contemplated by this Agreement and the
other transaction documents to which the Company or the GA Blocker are party.
(b)
Tax Returns and Tax Elections. Subject to Section 7.14(e), Buyer shall prepare (or cause to be prepared) all
income Tax Returns of the Company Group (other than Company Subsidiaries that are corporations for income tax purposes) for any Pre-Closing
Tax Period or Straddle Period (to the extent not already filed before the Closing) in a manner consistent with past practice of the Company
Group, except as required by applicable Law. No later than thirty (30) days prior to filing any such Company income Tax Return (other
than Tax Returns of any Company Subsidiaries that are corporations for income tax purposes), Buyer shall submit such Tax Return to the
Tax Representative for its review and comment and shall make any revisions as are reasonably and timely requested by the Tax Representative
and which could reasonably be expected to have an impact on the income Tax liability of the Blocker Seller, the Merger Participants or
any direct or indirect owners thereof; provided that Buyer shall not be required to include any such comments to the extent any
position therein is not at least “more likely than not” to be sustained, as reasonably determined by Buyer in consultation
with a nationally recognized tax advisor. The parties acknowledge and agree that, notwithstanding Section 7.14(a), Buyer may
take, and cause the Company Group to take, such actions as are necessary to ensure that an election under Section 754 of the Code
(or any corresponding provisions of state or local law) was in effect for the Company (and the Company Subsidiaries that are partnerships
for income tax purposes) for the period that includes the closing of the transactions contemplated by the EPA and is in effect for the
Company (and the Company Subsidiaries that are partnerships for income tax purposes) for the period that includes the closing of the transactions
contemplated by this Agreement. Notwithstanding Section 7.14(a), Buyer shall be permitted to amend income Tax Returns of the
Company Group (or to request an extension of time or other administrative relief, including under Treasury Regulations Section 301.9100-3)
(i) to the extent necessary to ensure that an election under Section 754 of the Code was in effect for the Company (and the Company
Subsidiaries that are partnerships for income tax purposes) for the period that includes the closing of the transactions contemplated
by the EPA in accordance with the preceding sentence, (ii) to adjust the tax basis step-up under Sections 734(b) or 743(b) of the Code
resulting from the transactions contemplated by the EPA and (iii) to adjust the income allocation to the members of the Company (in each
case, in accordance with the principles set forth on Schedule 7.14(b)) (clauses (i)–(iii) together, the “Specified
Tax Matters”).
(c) Audits
and Cooperation. In connection with any audit, examination, litigation or other proceeding with respect to the income Tax
Returns of the Company Group for any Pre-Closing Tax Period or Straddle Period (each, a “Tax Contest”), Buyer, on
the one hand, and the Tax Representative, on the other hand, shall cooperate fully with each other, including the furnishing or
making available during normal business hours of records, personnel (as reasonably required), books of account, powers of attorney
or other materials necessary or helpful for the conduct of any such Tax Contest. Buyer shall not settle a Tax Contest that could
reasonably be expected to adversely and materially impact the Blocker Seller, the Merger Participants or any direct or indirect
owners thereof without the consent of the Tax Representative, which consent shall not be unreasonably withheld, delayed or
conditioned. Buyer shall provide the Tax Representative with notice of any written inquiries, audits, examinations or proposed
adjustments by the Internal Revenue Service or any other taxing authority, which relate to any Tax Contest within ten (10) days of
the receipt of such notice. Buyer shall (and shall cause the Company Group to) (i) retain all books and records with respect to
income Tax matters pertinent to the Company Group relating to any Pre-Closing Tax Period or Straddle Period until the expiration of
the applicable statute of limitations (and any extension thereof), and to abide by all record retention agreements entered into with
any taxing authority with respect to income Taxes, and (ii) give the Tax Representative reasonable notice prior to transferring,
destroying or discarding any such books and records and shall allow the Tax Representative to take possession of such books and
records. The parties agree that neither the Company nor any Company Subsidiary shall make an election pursuant to the Partnership
Audit Rules, to cause the Partnership Audit Rules to apply to any taxable year of the Company or any Company Subsidiary beginning
prior to January 1, 2018.
(d)
Purchase Price Allocation. Within one hundred and twenty (120) days after the Final Aggregate Closing Date Consideration
has become final and binding on the parties, Buyer shall deliver to the Merger Participant Tax Representative a statement allocating the
aggregate consideration paid to the Merger Participants (and any adjustments thereto in accordance with this agreement, the relevant portion
of liabilities of the Company and the Company Subsidiaries and any other amounts treated as consideration for Company Units acquired by
Buyer pursuant to the Company Merger for U.S. federal income Tax purposes) among the assets of the Company and the Company Subsidiaries
pursuant to Section 755 of the Code and applicable Treasury Regulations. The provisions of Section 2.8(c) shall apply
mutatis mutandis to any disputes regarding the allocation set forth on such statement. The Merger Participants, Buyer and the Company
agree, for all income Tax purposes, to report the transactions consistently with such allocation, as finally determined, and to not take
any position during the course of any audit or other proceeding inconsistent with such allocation, except in each case as otherwise required
by a change in Law or pursuant to a final determination of a Governmental Authority.
(e) Tax
Treatment. The Blocker Seller, the Merger Participants, Buyer and the Company Group, and their respective Affiliates, agree that
for all income Tax purposes, (i) the Blocker Note shall be treated as indebtedness for all relevant income Tax purposes and the
Blocker Capitalization as a contribution to the capital of the GA Blocker within the meaning of Section 108(e)(6) of the Code
and a reorganization within the meaning of Section 368(a)(1)(E) of the Code, (ii) the Blocker Merger shall be treated as a
purchase of all of the stock of the GA Blocker by Buyer from the Blocker Seller for the consideration described in Section 2.6(a),
(iii) the Company Merger shall be treated as a purchase of partnership interests of the Company (other than the Blocker Company
Units and any Company Units held by Buyer or its Subsidiaries immediately prior to the Company Merger (subject to Section 2.14(b))
within the meaning of Section 741 of the Code for the consideration described in Section 2.6(c), (iv) the
transactions contemplated hereby (excluding, for the avoidance of doubt, any transactions following the Blocker Merger Effective
Time or the Company Merger Effective Time) shall not result in a termination of the Company under Section 708(b)(1)(B) of the
Code, (v) the 2017 Contingent Value Rights shall be treated as consideration received in a “contingent payment sale” in
connection with the exchange of the Blocker Interests in the Blocker Merger and the exchange of the Company Units (other than the
Blocker Company Units and any Company Units held by Buyer or its Subsidiaries immediately prior to the Company Merger (subject to Section 2.14(b))
in the Company Merger, in each case within the meaning of Treasury Regulations Section 15a.453-1(c) and eligible for deferral
under Section 453 of the Code, and (vi) the Company shall allocate the Transaction Tax Deductions to the Members as of
immediately before the Closing (to the maximum extent permitted under Law) and shall otherwise allocate all items of income and
deduction of the Company based on an interim closing of the books of the Company as of the end of the day on the Closing Date (in
accordance with Section 706 of the Code and the Treasury Regulations thereunder) (clauses (i) through (vi) together, the
“Intended Tax Treatment”). The Blocker Seller, the Merger Participants, the Merger Participant Tax
Representative, Buyer and the Company Group, and their respective Affiliates, shall report the transactions contemplated by this
Agreement (including, for the avoidance of doubt, all Tax Returns described in Section 7.14(b)) in a manner consistent with the
Intended Tax Treatment and not take any position during the course of any audit or other proceeding inconsistent with the Intended
Tax Treatment, except as otherwise required by a change in Law or pursuant to a final determination of a Governmental Authority.
(f) Permitted
Pre-Closing Tax Actions. Prior to the Closing, (i) the Company Group shall be permitted, and shall use commercially reasonable
efforts, to request, pursuant to Treasury Regulations Section 301.9100-3 and Section 5.03 of Revenue Procedure 2017-1, an
extension of time in which to file an election under Section 754 of the Code for the Company (and any Company Subsidiaries that
are partnerships for income tax purposes) for the period that includes the closing of the transactions contemplated by the EPA (the
“9100 Relief”) and (ii) the Company Group shall be permitted, and shall use commercially reasonable efforts, to
amend income Tax Returns of the Company Group with respect to the Specified Tax Matters; provided, that under no circumstance
shall the failure of the Company Group to receive the 9100 Relief or to file any of the Tax Returns referred to in clause (ii) of
this Section 7.14(f) before the Closing be considered in determining whether the conditions set forth in Article 8
have been satisfied, nor shall any such failure otherwise affect Buyer’s obligations to consummate the transactions
contemplated by this Agreement. The Company Group shall provide Buyer with drafts of all submissions to the IRS related to the
foregoing (including amended Tax Returns) no later than five (5) Business Days before the filing of such submissions, shall
incorporate all of Buyer’s reasonable comments on such submissions and shall not make any such submissions without
Buyer’s consent, which consent may not be unreasonably withheld, delayed or conditioned. The Company Group shall permit one
representative of Buyer to participate in all scheduled calls or meetings with the IRS related to the foregoing and shall notify
Buyer of any unscheduled calls or meetings with the IRS related to the foregoing promptly after such calls or meetings.
7.15
Financing.
(a)
The Parent Parties shall (i) use their respective commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary or advisable to arrange and obtain the Financing on the terms and conditions described
in the Commitment Letters (including the exercise of so-called “flex” provisions) as promptly as practicable (taking into
account the expected timing of the Marketing Period), including using commercially reasonable efforts to (A) satisfy on a timely basis
(or, if deemed advisable by Buyer, obtain the waiver of) all conditions and covenants applicable to the Parent Parties in the Commitment
Letters and such definitive agreements to be entered into pursuant to the Debt Commitment Letter that are within the control of the Parent
Parties and (B) negotiate and enter into definitive agreements with respect thereto consistent with the terms and conditions contained
in the Debt Commitment Letter (including the exercise of so-called “flex” provisions) or on other terms no less favorable
to the Parent Parties (unless otherwise agreed by Buyer in its sole discretion) as to conditionality than the terms and conditions (including
the “flex” provisions) contemplated by the Debt Commitment Letter, (ii) comply in all material respects with their obligations
under the Commitment Letters, and (iii) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the
conditions thereof. At the request of the Company, each of the Parent Parties shall provide the Company with such information and documentation
as shall be reasonably requested by the Company to allow the Company to monitor the progress of such financing activities.
(b) Buyer
shall promptly notify the Company (i) of any breach or default in any material respect (or any event or circumstance that, with or
without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any of the Parent
Parties under the Commitment Letters or any definitive agreements related thereto or, to the knowledge of Buyer, any other party to
any Commitment Letter or definitive agreement related thereto, and (ii) of the receipt by any of the Parent Parties or any of their
respective Affiliates or representatives of any written notice or communication from any Person of the occurrence of (A) breach,
default, termination or repudiation by any party to any Commitment Letter or any definitive agreement related thereto or any
provision of the financing contemplated pursuant to the Commitment Letters or any definitive agreement related thereto (including
any proposal by any lender named in the Debt Commitment Letter to withdraw, terminate or reduce the amount of financing contemplated
by the Debt Commitment Letter or delay the timing of financing contemplated by the Debt Commitment Letter past the Closing Date
required by Section 3.1) or (B) dispute or disagreement between or among any parties to any Commitment Letter or any
definitive agreement related thereto, in the case of clauses (A) and (B) above, that would reasonably be expected to result in the
Parent Parties not receiving or delaying the receipt of the proceeds of the Financing by the Closing Date required by Section 3.1; provided,
that in no event shall any Parent Party be required to disclose any information that is subject to attorney-client or similar
privilege if such Parent Party shall have used its commercially reasonable efforts to disclose such information in a way that would
not waive such privilege.
(c)
Without the prior written consent of the Company, the Parent Parties shall not (i) consent to any amendment or modification to,
or any waiver of any provision or remedy under, or enter into any side letters or other Contracts or arrangements under or in respect
of, the Equity Commitment Letter if such amendment or modification thereto, waiver of or remedy thereunder, or side letter, other Contract
or arrangement in respect thereof, would impose new or additional conditions precedent or otherwise change the conditions precedent set
forth therein, delay the timing of the funding of the commitments thereunder past the Closing Date required by Section 3.1
or reduce the aggregate cash amount of the funding commitments thereunder below an amount required to satisfy the Equity Financing Commitments
or adversely impact the ability of any Parent Party or the Company, as applicable, to enforce their rights under the Equity Commitment
Letter or the definitive agreements with respect thereto, or to consummate the transactions contemplated by this Agreement, or (ii) early
termination of the Equity Commitment Letter. Each of the Parent Parties shall, and shall cause their respective Affiliates to, use reasonable
best efforts to maintain the effectiveness of the Equity Commitment Letter until the transactions contemplated by this Agreement are consummated.
7.16
Financing Assistance.
(a)
Prior to the Closing (or the earlier termination of this Agreement pursuant to Article 10), subject to the limitations
set forth below, and unless otherwise agreed in writing by Buyer, the Company agrees to use reasonable best efforts to provide, and shall
use reasonable efforts to cause its Subsidiaries and its and their officers, directors, employees and representatives to provide, such
cooperation in connection with the arrangement of the Financing as may be reasonably requested by Buyer in connection with Buyer’s
arrangement of the Debt Financing, including:
(i)
(A) promptly furnish Buyer and the Debt Financing Sources with (x) the financial statements required by paragraph 5 in Exhibit
C to the Debt Commitment Letter as in effect on the date hereof in the time frames contemplated thereby (the “Required Financial
Information”) and (y) such other financial and other pertinent information regarding the Company and its Subsidiaries as may
be reasonably requested by Buyer and that is customarily needed for financings of the type contemplated by the Debt Commitment Letter
(including delivery of financial information regarding the Company and its Subsidiaries as is required or otherwise requested by Buyer
in order for Buyer to produce the pro forma financial statements contemplated by paragraph 6 in Exhibit C to the Debt Commitment Letter
as in effect on the date hereof, (B) reasonably assist with the preparation of the pro forma financial statements required by paragraph
6 in Exhibit C to the Debt Commitment Letter and other projections required in connection with the Debt Financing and (C) promptly after
obtaining knowledge thereof informing Buyer if, to the Company’s knowledge, there exist any facts that would likely require the
restatement of such financial statements for such financial statements to comply with GAAP;
(ii)
participate in a reasonable number of bank meetings, due diligence sessions and sessions with ratings agencies in connection with
any of such financing;
(iii)
reasonably assist the Parent Parties and their financing sources in the preparation of (A) confidential information memoranda and
similar marketing documents, (B) materials for rating agency presentations and (C) definitive documentation for the Debt Financing;
(iv)
reasonably facilitate the pledging and perfection of collateral, including assisting, in a customary manner, in the preparation
of pledge and security documents, guarantees, mortgages, and other definitive financing documents and certificates delivered in connection
therewith as reasonably requested by Buyer; provided that all such pledges, perfections, documents and certificates with respect to the
Company, its Subsidiaries and their respective assets shall be authorized and become effective only at, or as of, the Closing;
(v) deliver
a certificate of the Chief Financial Officer of the Company with respect to solvency matters substantially in the form attached as Annex
I to Exhibit C to the Debt Commitment Letter as of the date hereof;
(vi)
(A) deliver notices of prepayment within the time period required by the Loan Agreement and (B) at least one (1) Business Day prior
to the Closing Date, the Company shall deliver to Buyer a copy of an executed payoff letter from the agent under the Loan Agreement, which
payoff letter shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties,
breakage costs or similar obligations related to such Indebtedness as of the Closing Date (the “Loan Agreement Payoff Amount”),
(ii) state that upon receipt of the Loan Agreement Payoff Amount, the Loan Agreement (including the credit facilities contemplated therein)
and related instruments evidencing such credit facilities shall be terminated and (iii) state that all liens and all guarantees in connection
therewith relating to the assets of the Company or any Subsidiary or Affiliate of the Company shall be, upon the payment of the Loan Agreement
Payoff Amount on the Closing Date, released (the payoff letter described in this sentence being referred to as the “Payoff Letter”);
(vii)
take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Buyer that are necessary or customary
to permit the consummation of the Debt Financing and to permit the proceeds thereof, together with the cash at the Company and its Subsidiaries,
if any (not needed for other purposes), to be made available on the Closing Date to consummate the Closing and the other transactions
contemplated by this Agreement;
(viii) provide
customary authorization and representation letters to the Debt Financing Sources authorizing the distribution of information to
prospective lenders and containing a customary representation to the Debt Financing Sources that such information to the extent
provided by the Company or any of its Subsidiaries does not contain a material misstatement or omission and containing a
representation to the Debt Financing Sources that the public-side versions of such documents, if any, do not include material
non-public information about the Blocker Seller, the Company, or any of its Subsidiaries, or their respective securities; and
(ix)
provide, at least three (3) Business Days prior to the Closing Date, all documentation and other information as is required by
applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to the extent
requested at least five (5) Business Days prior to the anticipated Closing Date.
Notwithstanding the foregoing, (x) such requested
cooperation shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, (y) neither the Company
nor any of its Subsidiaries nor any of their respective Affiliates shall be required to pay any commitment or other similar fee (except
to the extent such Person is promptly reimbursed) or incur prior to the Company Merger Effective Time or incur or assume any other liability
or obligation in connection with the financings contemplated by the Debt Commitment Letter, and (z) none of the Company, its Subsidiaries
and their respective officers, directors, employees and Affiliates shall be required to authorize, execute or enter into or perform any
agreement or other document (other than the authorization and representation letters contemplated above and as otherwise expressly contemplated
above) with respect to the financing contemplated by the Commitment Letters that is not contingent upon the Closing or that would be effective
prior to the Company Merger Effective Time. In addition, notwithstanding anything in this Agreement to the contrary, (v) any information
regarding the Company or any of its Subsidiaries contained in any marketing materials in connection with the Debt Financing shall be subject
to the prior review of the Company, (w) none of the directors or managers of the Company or any Subsidiary shall be required to adopt
any resolutions or take other action approving the agreements, documents or instruments pursuant to which the Debt Financing is obtained,
(x) the Company shall not be required to deliver or cause the delivery of any legal opinions or accountants comfort letters necessary
for the Debt Financing, (y) the Company shall not be required to take any action to the extent it would result in a violation of law or
loss of any privilege or (z) the Company shall not be required to deliver or cause the delivery of any audited financial information or
financial information prepared in accordance with Regulation S-K or Regulation S-X of the Securities Act, or any financial information
with respect to a fiscal quarter that has not yet ended or has ended less than 45 days prior to the date of such request (or, in the case
of quarterly financial statements required to be delivered by the Debt Commitment Letter, 45 days prior to the Closing Date) or any monthly
financial information. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the debt financing
contemplated by the Debt Commitment Letter; provided, that such logos are used solely in a manner that is not intended to nor reasonably
likely to harm or disparage the Company or its Subsidiaries.
(b) None
of the Company, its Subsidiaries and its and their respective officers, directors, employees, accountants, consultants, legal
counsel, agents and other representatives shall be required to take any action that would subject such Person to actual or potential
liability, to bear any out-of-pocket cost or expense (except to the extent such Person is promptly reimbursed) or to pay any
commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity
in connection with the financing contemplated by the Commitment Letters or their performance of their respective obligations under
this Section 7.16 and any information utilized in connection therewith (in each case other than with respect to the
Company and its Subsidiaries on and following the Company Merger Effective Time). If this Agreement is terminated for any reason
(such that the Closing does not occur), (i) Buyer shall indemnify and hold harmless the Company, its Subsidiaries and its and their
respective officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives from and
against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or
incurred by them in connection with the arrangement of the debt financing contemplated by the Debt Commitment Letter and the
performance of their respective obligations under this Section 7.16, and any information utilized in connection
therewith (other than information related to the Company or its Subsidiaries provided by or on behalf of the Company or its
Subsidiaries in writing specifically for use in connection with the Debt Financing offering documents), except to the extent such
liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties are judged by a court of competent
jurisdiction in a final judgment (not subject to appeal) to result from the bad faith, gross negligence, willful misconduct or
material breach of this Agreement by the Company or its Subsidiaries or, in each case, their respective officers, directors
employees, accountants, consultants, legal counsel, agents or other representatives, and (ii) Buyer shall, promptly upon request of
the Company, reimburse the Company and its Subsidiaries for all reasonable and documented out-of-pocket costs and expenses incurred
by the Company or its Subsidiaries (including those of its accountants, consultants, legal counsel, agents and other
representatives) in connection with the cooperation required by this Section 7.16. For the avoidance of doubt, the
parties hereto acknowledge and agree that the provisions contained in this Section 7.16 represent the sole obligation of
the Company and its Subsidiaries and its and their officers, directors, employees, accountants, consultants, legal counsel, agents
and other representatives with respect to cooperation in connection with the arrangement of the Financing.
(c) In
addition, (1) no action, liability or obligation of the Company, any of its Subsidiaries or any of their respective Affiliates or
Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be
effective until the Closing, and neither the Company nor any of its Subsidiaries will be required to take any action pursuant to any
certificate, agreement, arrangement, document or instrument (including being an issuer or other obligor with respect to the Debt
Financing) that is not contingent on the occurrence of the Closing or that must be effective prior to the Closing (in each case
other than the authorization and representation letters contemplated above and as otherwise expressly contemplated above), and (2)
any bank information memoranda or memoranda required in relation to the Debt Financing will contain disclosure and financial
statements reflecting the Company or its Subsidiaries as the obligor, after giving effect to the acquisition by Buyer. Nothing in
this Section 7.16 will require (A) any officer or Representative of the Company or any of its Subsidiaries to deliver
any certificate or opinion or take any other action or any other provision of this Agreement that could reasonably be expected to
result in personal liability to such officer or representative, or (B) the members of the Company board as of immediately prior to
the Closing to approve any financing or Contracts related thereto prior to the Closing.
(d)
Buyer acknowledges and agrees that the obtaining of any Debt Financing is not a condition to Closing and reaffirms its obligation
to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of any Debt Financing,
subject to the satisfaction or waiver of the conditions set forth in Article 8.
7.17
Section 280G Matters. Prior to the Closing, the Company shall use its commercially reasonable efforts to take such
actions that are intended to ensure that the payment of any amounts or benefits (whether or not accelerated) to a “disqualified
individual” (as defined in Section 280G(c) of the Code) in connection with the transactions contemplated hereunder, would not,
separately or in the aggregate, reasonably be expected to result in the disallowance of a deduction to the Company or any Company Subsidiary,
as applicable, under Section 280G of the Code, including, as necessary, (a) soliciting the requisite approval of the Company’s
direct or indirect stockholders of all or a portion of any such payments or benefits, in a manner that meets the shareholder approval
requirements of Section 280G(b)(5) of the Code and Treasury Regulations Section 1.280G-1, Q/A-7 (including providing such members
adequate disclosure of all material facts concerning any such payments or benefit as provided in, and otherwise conducting such solicitation
in conformity with, Section 280G(b)(5)(B) of the Code) and (b) to the extent necessary, attempting to obtain a waiver from each such
“disqualified individual” entitled to receive any payments or benefits which would reasonably be expected, individually or
when aggregated with other payments or benefits, to cause or trigger “excess parachute payments” (within the meaning of Section 280G
of the Code). The Company shall provide Buyer with drafts of all such solicitation materials and consents for review and comment prior
to delivery to equityholders or disqualified individuals, as applicable (such review and comment not to be unreasonably withheld, conditioned
or delayed). To the extent solicited, the Company shall deliver to Buyer prior to the Closing evidence (in the form of the final executed
documents described in the preceding sentence) showing that a vote of the Company’s equityholders was solicited in accordance with
the foregoing provisions of this Section 7.17 and demonstrating whether or not the requisite number of equityholders votes
consenting to such benefits and payments was obtained with respect to such benefits and payments.
Article 8
CONDITIONS
PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement shall
be subject to the satisfaction, at or prior to the Closing Date, of all of the following conditions, any one or more of which may be waived
by Buyer:
8.1
Representations and Warranties Accurate. Each of the representations and warranties of (a) the Company contained in Article 4
(other than Fundamental Representations and Section 4.20(b)) shall be true and correct (without giving effect to any materiality
or Material Adverse Effect qualifiers set forth therein) in all respects, in each case on and as of the Closing Date as though made on
and as of the Closing Date (except for such representations and warranties expressly stated to relate to an earlier date, in which case,
as of such earlier date), except where the failure of such representations or warranties to be so true and correct has not had and would
not reasonably be expected to have a Material Adverse Effect and (b) the Blocker Seller contained in Article 5 shall be true
and correct in all material respects (without giving effect to any materiality qualifiers) on and as of the Closing Date as though made
on and as of the Closing Date (except for representations and warranties expressly stated to relate to a specific date, in which case
such representations and warranties shall be true and correct in all material respects on such earlier date). Each of the Fundamental
Representations made by the Company shall be true and correct in all material respects as of the Closing Date (except for representations
and warranties expressly stated to relate to a specific date, in which case such representations and warranties shall be true and correct
in all material respects on such earlier date) and the representation and warranty in Section 4.20(b) shall be true and correct
in all respects as of the Closing Date.
8.2
Performance. The Company and the Blocker Seller shall have performed and complied in all material respects with all agreements
and covenants required by this Agreement to be performed and complied with by the Company and the Blocker Seller prior to or on the Closing
Date.
8.3
Officer’s Certificate. Each of the Company and the Blocker Seller shall have delivered to Buyer a certificate, signed
by an executive officer the Company or such Blocker Seller, as applicable, dated as of the Closing Date, certifying the matters set forth
in Sections 8.1 and 8.2, as they relate to the representations, warranties, agreements and covenants of such party
(such certificate by the Company, the “Company Officer’s Certificate”, and such certificate by the Blocker Seller,
the “Blocker Seller Officer’s Certificate”).
8.4
Legal Prohibition. On the Closing Date, there shall exist no injunction or other order issued by any Governmental Authority
or court of competent jurisdiction which prohibits the consummation of the transactions contemplated under this Agreement.
8.5
HSR Act; Approvals. All required filings under the HSR Act shall have been completed and all applicable time limitations
thereunder shall have expired without a request for further information by the relevant federal authorities under the HSR Act, or in the
event of such a request for further information, the expiration of all applicable time limitations under the HSR Act shall have occurred
without the objection of such federal authorities.
8.6
No Material Adverse Effect. Since the date of this Agreement, there shall have been no Material Adverse Effect.
8.7
Blocker Capitalization. The Blocker Capitalization shall have been consummated.
Article 9
CONDITIONS
PRECEDENT TO OBLIGATIONS OF THE COMPANY AND THE BLOCKER SELLER
The obligations of the Company and the Blocker Seller
under this Agreement shall be subject to the satisfaction, at or prior to the Closing Date, of all of the following conditions, any one
or more of which may be waived by the Company:
9.1 Representations
and Warranties Accurate. The representations and warranties of the Parent Parties contained in Article 6 which are not
subject to a materiality qualification shall be true and correct in all material respects on and as of the Closing Date as though made
on and as of the Closing Date (except for representations and warranties expressly stated to relate to a specific date, in which case
such representations and warranties shall be true and correct in all material respects on such earlier date), and the representations
and warranties of the Parent Parties which are subject to a materiality qualification shall be true and correct in all respects on and
as of the Closing Date (except for representations and warranties expressly stated to relate to a specific date, in which case such representations
and warranties shall be true and correct on such earlier date).
9.2 Performance. Buyer shall have performed and complied in all material respects with all agreements and covenants required
by this Agreement to be performed and complied with by it prior to or on the Closing Date.
9.3 Officer
Certificate. Buyer shall have delivered to the Company a certificate, signed by an executive officer of Buyer, dated as of the Closing
Date, certifying the matters set forth in Sections 9.1 and 9.2 (the “Buyer Officer’s Certificate”).
9.4 Legal
Prohibition. On the Closing Date, there shall exist no injunction or other order issued by any Governmental Authority or court of
competent jurisdiction which prohibits the consummation of the transactions contemplated under this Agreement.
9.5 HSR
Act; Approvals. All required filings under the HSR Act shall have been completed and all applicable time limitations thereunder
shall have expired without a request for further information by the relevant federal authorities under the HSR Act, or in the event
of such a request for further information, the expiration of all applicable time limitations under the HSR Act shall have occurred
without the objection of such federal authorities.
Article 10
TERMINATION
10.1 Termination.
This Agreement may be terminated on or prior to the Closing Date as follows:
(i) by the mutual consent of Buyer and the Seller Representative;
(ii)
at the election of Buyer or the Seller Representative if the Closing Date shall not have occurred on or prior to October 17,
2017 (the “Termination Date”); provided, however, that the terminating party is not in material breach
of any representation, warranty, covenant or other agreement contained herein at the time of such termination, including, in the case
of Buyer, its failure to effect the Closing when required to do so hereunder regardless of whether such failure to effect the Closing
arises out of its failure to obtain any portion of the Financing;
(iii)
by Buyer, if the Company or the Blocker Seller shall have breached or failed to perform any of their respective representations,
warranties, covenants or agreements set forth in this Agreement, or if any representation or warranty of the Company or the Blocker Seller
shall have become untrue, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing
at the Closing, (A) would result in the failure of any of the conditions set forth in Sections 8.1 or 8.2 and
(B) cannot be or has not been cured or waived by Buyer by the earlier of (x) the Termination Date and (y) 20 Business Days
after the giving of written notice to the Seller Representative of such breach or failure; provided, that Buyer shall not have
the right to terminate this Agreement pursuant to this paragraph if Buyer is then in material breach of any of its representations, warranties,
covenants or agreements set forth in this Agreement;
(iv)
by the Seller Representative, if Buyer shall have breached or failed to perform any of its representations, warranties, covenants
or agreements set forth in this Agreement, or if any representation or warranty of Buyer shall have become untrue, which breach or failure
to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Closing, (A) would result in
the failure of any of the conditions set forth in Sections 9.1 or 9.2 and (B) cannot be or has not been cured
or waived by the Seller Representative by the earlier of (x) the Termination Date and (y) 20 Business Days after the giving
of written notice to Buyer of such breach or failure; provided, that the Seller Representative shall not have the right to terminate
this Agreement pursuant to this paragraph if any of the Company or the Blocker Seller is then in material breach of any of its representations,
warranties, covenants or agreements set forth in this Agreement;
(v)
if a court of competent jurisdiction or other Governmental Authority shall have issued an order or taken any other action permanently
restraining, enjoining or otherwise prohibiting the transactions contemplated under this Agreement and such order or action shall have
become final and nonappealable; or
(vi)
by the Seller Representative if (A) the Closing shall not have occurred by the date required by Section 3.1, (B) all
of the conditions in Article 8 have been satisfied (other than those that, by their nature, are to be satisfied at the Closing
but which conditions would be capable of being satisfied if the Closing were to occur on such date), (C) the Seller Representative, the
Company and the Blocker Seller have each irrevocably confirmed by written notice to Buyer that (x) all conditions set forth in Article 9
have been satisfied (other than those that, by their nature, are to be satisfied at the Closing but would be capable of being satisfied
if the Closing were to occur on such date) or that the Seller Representative or that the Company and the Blocker Seller have irrevocably
waived any unsatisfied conditions in Article 9 (other than those that, by their nature, are to be satisfied at the Closing),
and (y) the Seller Representative, the Company and the Blocker Seller are ready, willing, and able to consummate the transactions contemplated
hereunder, and (D) Buyer fails to consummate the Closing within two (2) Business Days (or, in the event that the Debt Financing is not
then available, 11 Business Days) following the delivery of such notice.
The party desiring to terminate this Agreement pursuant
to this Section 10.1 (other than Section 10.1(i)) shall give written notice of such termination to the other party
hereto.
10.2 Survival
After Termination. If this Agreement is terminated by the parties in accordance with Section 10.1, this Agreement shall
become void and of no further force and effect; provided, however, that none of the parties hereto shall have any liability
in respect of a termination of this Agreement, except that the provisions of Sections 7.2(b) (Access to Information; Confidentiality;
Public Announcements), 10.2 (Survival After Termination), 10.3 (Fees and Expenses Following Termination),
Article 11 (Miscellaneous) and the Confidentiality Agreement shall each survive the termination of this Agreement
and, subject to Sections 10.3(b) and 10.3(c), no such termination shall relieve any party from any liability resulting
from a willful and material breach of this Agreement, in which case the non-breaching party shall be entitled to all rights and remedies
available at Law or in equity.
10.3
Fees and Expenses Following Termination.
(a)
If this Agreement is terminated by the Seller Representative pursuant to Section 10.1(iv) or Section 10.1(vi),
then Buyer shall pay, or cause to be paid, to the Company, an amount in cash equal to thirty one million, seven hundred and fifty thousand
dollars ($31,750,000) (such payment, the “Buyer Termination Fee”), such payment to be made by wire transfer of immediately
available funds within two (2) Business Days following such termination.
(b) The parties acknowledge and agree that (i) the fees and other provisions of this Section 10.3 are an integral part
of the transactions contemplated hereunder, (ii) the Buyer Termination Fee pursuant to this Section 10.3 shall constitute
liquidated damages and not a penalty, (iii) in no event shall Buyer be required to pay the Buyer Termination Fee on more than one occasion,
and (iv) without these agreements, the parties would not enter into this Agreement. If Buyer fails to pay the Buyer Termination Fee as
set forth herein, Buyer shall also be liable for any reasonable out-of-pocket costs and expenses (including out-of-pocket attorneys’
fees) incurred by the Seller Representative and the Company following such determination in connection with their collection efforts
under this Section 10.3 to receive the Buyer Termination Fee, together with interest on such amount or portion thereof at
an annual rate equal to the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion
thereof was required to be made through the date that such payment or portion thereof was actually received plus two percent (2%), or
a lesser rate that is the maximum permitted by applicable Law. If the Seller Representative commences suit that results in a judgment
for the Parent Parties or their respective Affiliates, the Seller Representative shall be liable to Buyer for any reasonable out-of-pocket
costs and expenses (including out-of-pocket attorneys’ fees) incurred by the Parent Parties in connection with such suit.
(c) Notwithstanding
anything to the contrary set forth in this Agreement, but subject to Section 11.17, each of the parties hereto expressly
acknowledges and agrees that, the Buyer Termination Fee shall constitute the sole and exclusive remedy of the Company Group, the Seller
Representative and the Blocker Seller and any of their respective former, current or future general or limited partners, stockholders,
members, managers, directors, officers, employees, agents or Affiliates (collectively, the “Company Related Parties”)
against Buyer and the Debt Financing and the Debt Financing Sources with respect to or relating in any way to this Agreement, the Debt
Financing and the Debt Commitment Letter (and the fee letter referred to therein) or the performance thereof or the financings contemplated
thereby, the Guarantors with respect to the Equity Commitment Letter and the Limited Guaranties, and any of their respective former,
current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents or Affiliates
(collectively, the “Buyer Related Parties”) for all losses and damages in respect of this Agreement or the transactions
contemplated hereunder (whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Buyer
against any Buyer Related Party, by the enforcement of any assessment or by any Action, by virtue of any Law, or otherwise), including
the failure of the Closing to occur, and neither the Company Group, the Seller Representative nor the Blocker Seller nor any Company
Related Party shall bring or permit any of their respective Affiliates to bring any Action against any Buyer Related Party in connection
with any such failure of the Closing to occur; provided, however, notwithstanding the foregoing, all of such parties shall
remain obligated for, and the members of the Company Group will be entitled to remedies with respect to, the Confidentiality Agreement.
Upon payment of the Buyer Termination Fee to the Company pursuant to Section 10.3(a), none of the Buyer Related Parties shall
have any further liability or obligation to any of the Company Related Parties relating to or arising out of this Agreement, the transactions
contemplated by this Agreement, the Limited Guaranties, the Financing Commitments or in respect of any other agreement, document or theory
of law or equity (whether in contract, in tort or otherwise) or in respect of any oral representations made or alleged to be made in
connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise (except that Buyer shall continue to be
obligated to the Company under the Confidentiality Agreement and for any of its expense reimbursement, interest and indemnification obligations
contained in Section 7.16(b) and Section 10.3(b)). Each of the Buyer Related Parties are third party beneficiaries
of this Section 10.3(c) and shall be entitled to enforce such provisions to the same extent as if they were a party hereunder.
(d) The
parties further acknowledge that the Seller Representative may pursue both a grant of specific performance in accordance with Section 11.17
and the payment of the Buyer Termination Fee under Section 10.3(a), but that under no circumstances shall the Seller
Representative or any other Person be permitted or entitled to receive both a grant of specific performance and the Buyer Termination
Fee. For avoidance of doubt, the availability of the Seller Representative’s right to terminate this Agreement pursuant to Section 10.1(iv)
or Section 10.1(vi) shall in no way obligate the Seller Representative or the Company to pursue the remedy provided in
Section 10.3(a), and unless and until any such right of termination is exercised, the Seller Representative, the Blocker
Seller and the Company retain and reserve all rights to enforce the performance of this Agreement pursuant to Section 11.17,
including the right to force the Parent Parties to consummate the transactions contemplated by this Agreement even in the absence of
the funding of any Debt Financing.
(e) If
the transactions contemplated by this Agreement are terminated as provided in Section 10.1, Buyer acknowledges and agrees
that all documents, copies thereof, and all other materials received from or on behalf of any member of the Company Group relating to
the transactions contemplated hereby, whether so obtained before or after the execution hereof, shall continue to be subject to the Confidentiality
Agreement, which shall remain in full force and effect notwithstanding the termination of this Agreement.
Article 11
MISCELLANEOUS
11.1
Nonsurvival of Representations, Warranties and Covenants. Notwithstanding any applicable statutes of limitations, which
the parties hereto intend to modify and limit as set forth in this Section 11.1, none of the representations, warranties,
covenants and other agreements, in each case, contained in this Agreement, or in any instrument or certificate delivered by any party
at Closing, will survive the Closing, and none of the parties shall have any liability to each other after the Closing for any breach
thereof, except for (i) covenants and agreements which contemplate performance after the Closing or otherwise expressly by their terms
survive the Closing, each of which will survive in accordance with its terms and (ii) the representations and warranties of the Blocker
Seller set forth in Section 5.5(a), which shall survive the Closing.
11.2 Expenses.
Except as expressly provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
11.3 Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties
hereto. Notwithstanding anything to the contrary contained herein, Section 10.3(b), this Section 11.3, Section 11.10,
Section 11.14, Section 11.15 and Section 11.19 (and any other provision of this Agreement to the extent
a modification, waiver or termination of such provision would modify the substance of the foregoing) may not be amended, modified or terminated
in a manner that is material and adverse to the Debt Financing Sources without the prior written consent of the Debt Financing Sources
and any purported amendment by any party hereto in a manner that does not comply with this Section 11.3 will be void.
11.4 Entire Agreement. This Agreement, including the Schedules and Exhibits attached hereto which are deemed for all
purposes to be part of this Agreement, and the other documents delivered pursuant to this Agreement and the Confidentiality Agreement,
contain all of the terms, conditions and representations and warranties agreed upon or made by the parties relating to the subject matter
of this Agreement and the businesses and operations of the Company and supersede all prior and contemporaneous agreements, negotiations,
correspondence, undertakings and communications of the parties or their representatives, oral or written, respecting such subject matter.
11.5
Headings. The headings contained in this Agreement are intended solely for convenience and shall not affect the rights of
the parties to this Agreement.
11.6 Notices. Any notice or other communication required or permitted under this Agreement shall be deemed to have been duly
given and made if (i) in writing and served by personal delivery upon the party for whom it is intended, (ii) if delivered by
electronic mail or facsimile with non-automated receipt confirmed, or (iii) if delivered by certified mail, registered mail, courier
service, return-receipt received to the party at the address set forth below, with copies sent to the Persons indicated:
If to the Seller Representative or the Blocker Seller:
GA Escrow, LLC
c/o General Atlantic Service Company, LLC
55 East 52nd St., 33rd Floor
New York, NY 10055
Attention: [ ]
Fax: [ ]
Email: [ ]
With a copy to (which shall not constitute notice):
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: [ ]
Fax: [ ]
Email: [ ]
If to the Company:
Amplify Holdings LLC
1800 Continental Blvd, Suite 300
Charlotte, NC 28273
Attention: [ ] Email [ ]
With a copy to (which shall not constitute notice):
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: [ ]
Fax: [ ]
Email: [ ]
If to the Merger Participant Tax Representative (who
shall receive notice solely with respect to matters set forth in Section 7.14:
JWF Rollover, LLC
1355 Greenwood Cliff Rd., Suite 301
Charlotte, NC 28204
Attention: [ ]
Email: [ ]
With a copy to (which shall not constitute notice):
Alston & Bird LLP
101 South Tryon Street, Suite 4000
Charlotte, NC 28280
Attention: [ ]
Fax: [ ]
Email: [ ]
If to any Parent Party:
c/o Hellman & Friedman LLC
One Maritime Plaza
12th Floor
San Francisco, CA 94111
Attention: [ ]
Email: [ ]
With a copy to (which shall not constitute notice):
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, CA 94304
Attention: [ ]
Email: [ ]
Such addresses may be changed, from time to time, by means of a notice
given in the manner provided in this Section 11.6.
11.7 Exhibits and Schedules.
(a) Any
matter, information or item disclosed in the Schedules delivered under any specific representation, warranty or covenant or Schedule number
hereof, shall be deemed to have been disclosed for all purposes of this Agreement in response to every representation, warranty or covenant
in this Agreement in respect of which such disclosure is reasonably apparent on its face. The inclusion of any matter, information or
item in any Schedule to this Agreement shall not be deemed to constitute an admission of any liability by the Company or the Blocker
Seller to any third party or otherwise imply, that any such matter, information or item is material or creates a measure for materiality
for the purposes of this Agreement.
(b) The
Schedules and Exhibits hereto are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in
full in this Agreement.
11.8 Waiver. Waiver of any term or condition of this Agreement by any party shall only be effective if in writing and shall not
be construed as a waiver of any subsequent breach or failure of the same term or condition, or a waiver of any other term or condition
of this Agreement.
11.9 Binding
Effect; Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their
permitted successors and assigns. No party to this Agreement may assign or delegate, by operation of Law or otherwise, all or any
portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other parties to
this Agreement, which any such party may withhold in its absolute discretion. Any purported assignment without such prior written
consents shall be void; provided, however, that each of the Parent Parties may assign, without prior written consent
of, but with prior written notice to, the Seller Representative, all or any portion of this Agreement or its rights hereunder to (i)
any of their Affiliates (provided, that no such assignment will relieve the Parent Parties of their obligations hereunder),
(ii) any of the Debt Financing Sources as collateral security or (iii) to any other Person, solely after the Closing, in connection
with an internal restructuring, joint venture, sale or divestiture of all or a portion of the equity interests of assets of the
Parent Parties or any of their respective Affiliates (whether by joint venture, liquidation, dissolution, reorganization,
recapitalization, consolidation, sale of assets, stock purchase, merger or otherwise) or any other action or combination of
actions.
11.10 No
Third Party Beneficiary. Nothing in this Agreement shall confer any rights, remedies or claims upon any Person or entity not a party
or a permitted assignee of a party to this Agreement, except for the Persons identified in Section 7.6, Section 10.3,
Section 11.3, this Section 11.10 (with respect to the Debt Financing Sources), Section 11.12, Section 11.13,
Section 11.14, Section 11.15 and Section 11.19, and Paul, Weiss as set forth in Section 7.8.
11.11
Counterparts. This Agreement may be signed in any number of counterparts (including by means of telecopied signature pages
or electronic transmission in portable document format (pdf)), with the same effect as if the signatures to each counterpart were upon
a single instrument, and all such counterparts together shall be deemed an original of this Agreement.
11.12
Buyer Release. From and after the Closing, Buyer agrees, on behalf of itself and its Affiliates (and, from and after the
Closing, shall cause the Company to agree), that none of (x) the current or former officers and directors of the Blocker Seller or the
Seller Representative (solely in such capacities), (y) the Blocker Seller or the Seller Representative or (z) the current or former equity
holders of the Company Group (solely in such capacities) as of or prior to the Closing Date (the “Seller Released Parties”)
have any liability or responsibility, other than for Fraud, to any of Buyer or the Company Group (and Buyer hereby unconditionally, absolutely,
generally, irrevocably and completely releases, remises, relinquishes, waives and forever discharges, and from and after the Closing agrees
to cause the Company to release, remise, relinquish, waive and forever discharge), the Seller Released Parties from any obligations or
liability:
(a) arising
out of, or relating to, any matter, occurrence, action or activity prior to the Closing regarding the organization, management or operation
of the businesses of the Company or any Company Subsidiary;
(b) relating to this Agreement and the transactions contemplated hereby, except, in the case of the Blocker Seller and the Seller Representative,
for (i) covenants and agreements which contemplate performance after the Closing or otherwise expressly by their terms survive the Closing,
and (ii) representations and warranties of the Blocker Seller that expressly survive the Closing, each of which will survive in accordance
with its terms;
(c) for any breach of any representation or warranty or the breach of any covenant, undertaking or other agreement contained in this
Agreement, the Schedules and Exhibits hereto or in any certificate contemplated hereby and delivered in connection herewith,
except, (i) in the case of the Blocker Seller and the Seller Representative, with respect to the covenants and agreements which contemplate
performance after the Closing or (ii) the covenants, agreements, representations and warranties that otherwise expressly by their terms
survive the Closing, each of which will survive in accordance with its terms; or
(d) relating to any information (whether written or oral), documents or materials furnished to Buyer or its Affiliates by or on behalf
of the Blocker Seller or the Company Group, including the Confidential Information.
Buyer agrees (and, agrees to cause the Buyer Related
Parties, and from and after the Closing, the Company) not to demand, institute, commence or cause to be commenced, any claim released
or purported to be released pursuant to this Section 11.12.
11.13
Blocker Seller Release. From and after the Closing, the Blocker Seller agrees on behalf of itself and its Affiliates that
none of the Buyer Related Parties shall have any liability or responsibility to the Blocker Seller, its Affiliates or any of their respective
partners, members, directors, officers, employees, agents, representatives, successors and assigns (the “Seller Releasing Parties”),
for (and the Blocker Seller hereby unconditionally, absolutely, generally, irrevocably and completely releases, remises, relinquishes,
waives, forever discharges and agrees to cause the Seller Releasing Parties to release, remise, relinquish, waive and forever discharge)
any claims that the Blocker Seller (or any of its Affiliates) has against (x) the Buyer Related Parties in their capacity as direct or
indirect equity holders of the GA Blocker or the Company, (y) the Company and the Company’s Affiliates and (z) each of the foregoing’s
respective partners, members, directors, officers, employees, agents, representatives, successors and assigns, except, in the case of
Buyer, other than for Fraud or as expressly set forth in this Agreement or any document contemplated herein or entered into in connection
with the transactions contemplated hereby, in each case, subject to Section 10.3(c). The Blocker Seller agrees (and agrees
to cause the Seller Releasing Parties) not to demand, institute, commence or cause to be commenced, any claim released or purported to
be released pursuant to this Section 11.13.
11.14 Governing
Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware,
without regard to principles of conflict of Laws. The parties hereto hereby declare that it is their intention that this Agreement
shall be regarded as made under the Laws of the State of Delaware and that the Laws of said State shall be applied in interpreting
its provisions in all cases where legal interpretation shall be required. Each of the parties hereto: (a) agrees that this
Agreement involves at least US $100,000; (b) agrees that this Agreement has been entered into by the parties hereto in express
reliance upon 6 Del. C. § 2708; (c) irrevocably and unconditionally submits to the exclusive jurisdiction of
the Delaware Court of Chancery (or in the event (but only in the event) that such court does not have subject matter jurisdiction
over such action or proceeding, in the United States District Court for the District of Delaware) with respect to all actions and
proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (whether based on contract, tort
or other theory); (d) agrees that all claims with respect to any such action or proceeding shall be heard and determined in
such courts and agrees not to commence any action or proceeding relating to this Agreement or the transactions contemplated hereby
(whether based on contract, tort or other theory) except in such courts; (e) irrevocably and unconditionally waives any objection to
the laying of venue of any action or proceeding arising out of this Agreement or the transactions contemplated hereby and
irrevocably and unconditionally waives the defense of an inconvenient forum and (f) agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by Law. Notwithstanding the foregoing, each party hereto agrees that any action or proceeding of any kind or nature (whether based
on contract, tort or other theory) against any Debt Financing Source relating to this Agreement, the Debt Financing or any of the
transactions contemplated hereby shall be subject to the exclusive jurisdiction of the Supreme Court of the State of New York,
County of New York, Borough of Manhattan or if under applicable Law exclusive jurisdiction is vested in Federal courts, the United
States District Court for the Southern District of New York (and the appellate courts thereof). The parties hereto agree that any
violation of this Section 11.14 shall constitute a material breach of this Agreement and shall constitute irreparable
harm.
11.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING WITH RESPECT
TO THE DEBT FINANCING) OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM INVOLVING ANY
DEBT FINANCING SOURCE AND THEIR RESPECTIVE AFFILIATES) (IN EACH CASE WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16
Conveyance Taxes. Buyer shall pay all sales, use, value added, transfer, stamp, registration, documentary, excise, real
property transfer or gains, or similar Taxes incurred as a result of the transactions contemplated by this Agreement and the Company and
Buyer shall jointly file all required change of ownership and similar statements.
11.17
Specific Performance.
(a)
The parties agree that irreparable damage would occur in the event that the parties hereto do not perform the provisions of this
Agreement in accordance with its terms or otherwise breach such provisions. Accordingly, the parties acknowledge and agree that the parties
shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at Law or in equity.
(b)
Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief
as provided herein on the basis that (i) it has an adequate remedy at Law or (ii) an award of specific performance is not an
appropriate remedy for any reason at Law or equity. Any party seeking an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in
connection with any such order or injunction.
11.18
Severability. If any term, provision, agreement, covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, agreements, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such a determination,
the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible
in a reasonably acceptable manner so that the transactions contemplated hereby may be consummated as originally contemplated to the fullest
extent possible.
11.19 Limitation
on Recourse. No Action shall be brought or maintained by any party hereto or any of their respective Affiliates or their
respective successors or permitted assigns against any current or former direct or indirect equity holder, officer, director,
employee or Affiliate of Buyer, the Company, the Seller Representative or the Blocker Seller, as applicable (who shall be third
party beneficiaries of this Section 11.19), which is not otherwise expressly identified as a party hereto, and no
recourse shall be brought or granted against any of them, by virtue of or based upon any alleged misrepresentation or inaccuracy in
or breach of any of the representations, warranties or covenants of any party hereto set forth or contained in this Agreement or any
exhibit or schedule hereto or any certificate delivered hereunder. None of the Debt Financing Sources or any of their respective
Affiliates (who shall be third party beneficiaries of this Section 11.19) shall have any liability or obligation to the
Company, the Seller Representative or the Blocker Seller or any of their respective Affiliates and none of the Company, the Seller
Representative or the Blocker Seller or any of their Affiliates shall have any rights or claims against any of the Debt Financing
Sources or any of their respective Affiliates, in each case, relating to or arising out of this Agreement, the Debt Financing and
any agreement entered into by the Company, the Seller Representative or the Blocker Seller in connection herewith, or the
transactions contemplated hereby or thereby, provided that, notwithstanding the foregoing, nothing herein shall affect the
rights of the Surviving LLCs against the Debt Financing Sources or any of their respective Affiliates with respect to the Debt
Financing following the Mergers. Notwithstanding anything herein to the contrary, nothing contained in this Section 11.9
shall in any way limit the rights of the Blocker Seller, the GA Blocker or the Company against the Guarantors pursuant and subject
to the terms of the Equity Commitment Letter or any Limited Guaranty.
11.20
Seller Representative Expense Fund.
(a)
The Seller Representative shall hold the Seller Representative Expense Fund in the Seller Representative Expense Account (as agent
and for the benefit of the Blocker Seller and the Merger Participants) as a fund from which the Seller Representative shall pay any amounts
due by or on behalf of the Blocker Seller and the Merger Participants hereunder, including, any out-of-pocket losses and reasonable third-party
fees, expenses or costs it incurs in performing its duties and obligations under this Agreement by or on behalf of the Blocker Seller
and the Merger Participants, including fees and expenses incurred pursuant to the procedures and provisions set forth in Section 2.8
and legal and consultant fees, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant
to this Agreement (collectively, “Administrative Costs”) and to fund any indemnification obligations pursuant to Section 11.21(b).
Other than the distributions pursuant to Section 11.20(c), the Seller Representative Expense Fund may not be used for any
purpose other than as set forth in this Section 11.20(a).
(b)
Amounts drawn from the Seller Representative Expense Account to pay Administrative Costs shall be drawn to reflect the Blocker
Seller’s and the Merger Participant’s liability for such Administrative Costs in accordance with its respective Pro Rata Share.
(c) At
such time, and from time to time, that the Seller Representative determines in its discretion that the Seller Representative Expense
Fund will not be required for the payment of such Administrative Costs or the payment of indemnification obligations pursuant to Section 11.21(b),
the Seller Representative shall distribute the amounts then on deposit in the Seller Representative Expense Fund (the
“Remaining Funds”) to the Blocker Seller, to the Paying Agent for further distribution to the Merger Participants
(subject to Section 2.9(b)) and to the Company for further distribution to the Rollover Sellers, in each case in
accordance with such Person’s Pro Rata Share, their share of the Remaining Funds; provided, that, unless a claim
is pending which could require payment from the Seller Representative Expense Account, the Seller Representative shall distribute
the Remaining Funds in accordance with this sentence no later than the date that is the latter to occur of (x) six (6) years and
thirty (30) days from the Closing and (y) the date upon which the 2017 Contingent Value Rights have been fully paid, settled and
resolved in accordance with the terms of this Agreement. Upon the distribution of any funds pursuant to this Section 11.20(c),
the Seller Representative shall provide a statement to the Blocker Seller, the Merger Participants and the Rollover Sellers
accounting for all activity with respect to the Seller Representative Expense Account for the period beginning from the later of the
Closing Date or the date of the last distribution of any funds pursuant to this Section 11.20(c) through (ii) the date
of such distribution of funds.
(d)
The Seller Representative, or the Company, if requested by the Seller Representative, shall report and withhold any Taxes (from
amounts paid by or from the Seller Representative Expense Account) as it determines may be required by any Law or regulation in effect
at the time of any distribution.
11.21
Seller Representative.
(a) The
Blocker Seller and each Merger Participant hereby designates the Seller Representative to execute any and all instruments or other
documents on behalf of the Blocker Seller and Merger Participants, and to do any and all other acts or things on behalf of the
Blocker Seller and Merger Participants, which the Seller Representative may deem necessary or advisable, or which may be required
pursuant to this Agreement, the Escrow Agreement, Paying Agent Agreement or otherwise, in connection with the consummation of the
transactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the
Closing, including, but not limited to, the exercise of the power to: (i) execute the Escrow Agreement and Paying Agent
Agreement on behalf of the Blocker Seller and Merger Participants, (ii) act for the Blocker Seller and Merger Participants with
respect to any adjustments pursuant to the Aggregate Closing Date Consideration pursuant to Section 2.8, any payment of
Deferred Consideration pursuant to Section 2.11 or the 2017 Contingent Value Rights; (iii) give and receive notices
and communications to or from Buyer and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, the Paying Agent
Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement, the
Escrow Agreement or the Paying Agent Agreement expressly contemplates that any such notice or communication shall be given or
received by the Blocker Seller and Merger Participants, individually), (iv) agree to, object to, negotiate, resolve, enter into
settlements and compromises of, demand arbitration or litigation of, and comply with orders of arbitrators or courts with respect
to, any dispute between Buyer and the Blocker Seller and Merger Participants, in each case relating to this Agreement, the Escrow
Agreement or the Paying Agent Agreement, and (v) take all actions necessary or appropriate in the judgment of the Seller
Representative for the accomplishment of the foregoing. The Seller Representative shall have authority and power to act on behalf of
the Blocker Seller and Merger Participants with respect to the disposition, settlement or other handling of all claims under this
Agreement, the Escrow Agreement and the Paying Agent Agreement and all rights or obligations arising under this Agreement, the
Escrow Agreement and the Paying Agent Agreement. The Blocker Seller and Merger Participants shall be bound by all actions taken and
documents executed by the Seller Representative in connection with this Agreement, the Escrow Agreement and the Paying Agent
Agreement, and Buyer shall be entitled to rely on any action or decision of the Seller Representative. The Seller Representative
shall receive no compensation for its services. Notices or communications to or from the Seller Representative shall constitute
notice to or from the Blocker Seller and Merger Participants. The Seller Representative shall act in good faith in connection with
its obligations hereunder. Notwithstanding anything herein to the contrary, the Seller Representative may not agree to settle any
claim that would impose any material, non-monetary obligation on a Rollover Seller or Merger Participant. The Seller Representative
shall provide each Merger Participant and Rollover Seller with written notice of any material actions taken pursuant to this Section 11.21.
(b)
In performing the functions specified in this Agreement, the Seller Representative shall not be liable to any Blocker Seller or
Merger Participant other than for liability as a result of gross negligence, willful misconduct, fraud or bad faith on the part of the
Seller Representative. The Blocker Seller and Merger Participants shall severally (based on the Blocker Seller’s and each Merger
Participant’s respective Pro Rata Shares), and not jointly, indemnify and hold harmless the Seller Representative from and against
any Loss incurred without gross negligence, willful misconduct, fraud or bad faith on the part of the Seller Representative and arising
out of or in connection with the acceptance or administration of its duties hereunder (other than Administrative Costs reimbursed or paid
from the Seller Representative Expense Fund). If not paid directly to the Seller Representative by the Blocker Seller and Merger Participants,
such Losses may be recovered by the Seller Representative from the Adjustment Escrow Amount otherwise distributable to the Blocker Seller
and Merger Participants pursuant to Section 2.8(e) and in accordance with the terms hereof and of the Escrow Agreement and
Paying Agent Agreement, at the time of distribution, and such recovery will be made from the Blocker Seller and Merger Participants according
to their respective Pro Rata Share.
11.22
Merger Participant Tax Representative.
(a) Each
Merger Participant hereby designates the Merger Participant Tax Representative to execute any and all instruments or other documents
on behalf of the Merger Participants, and to do any and all other acts or things on behalf of the Merger Participants, which the
Merger Participant Tax Representative may deem necessary or advisable, or which may be required pursuant to this Agreement in
connection with the tax matters set forth in Section 7.14 of this Agreement and the performance of all obligations
thereunder at or following the Closing (such matters, the “Merger Participant Tax Representative Matters”). The
Merger Participant Tax Representative shall have authority and power to act on behalf of the Blocker Seller and Merger Participants
with respect to the disposition, settlement or other handling of all claims with respect to the Merger Participant Tax
Representative Matters and all rights or obligations arising with respect to the Merger Participant Tax Representative Matters. The
Merger Participants shall be bound by all actions taken and documents executed by the Merger Participant Tax Representative in
connection with the Merger Participant Tax Representative Matters, and Buyer shall be entitled to rely on any such action or
decision of the Merger Participant Tax Representative. The Merger Participant Tax Representative shall receive no compensation for
its services. Notices or communications to or from the Merger Participant Tax Representative with respect to the Merger Participant
Tax Representative Matters shall constitute notice to or from the Merger Participants. The Merger Participant Tax Representative
shall act in good faith in connection with its obligations hereunder. Notwithstanding anything herein to the contrary, the Merger
Participant Tax Representative may not agree to settle any claim that would impose any material, non-monetary obligation on a
Rollover Seller or Merger Participant. The Merger Participant Tax Representative shall provide each Merger Participant and Rollover
Seller with written notice of any material actions taken pursuant to this Section 11.22.
(b)
In performing the functions specified in this Section 11.22, the Merger Participant Tax Representative shall not be
liable to any holder of Common Units or Incentive Units other than for liability as a result of gross negligence, willful misconduct,
fraud or bad faith on the part of the Merger Participant Tax Representative. The holders of Common Units and Incentive Units shall severally
(based on their relative respective share of the Aggregate Closing Date Consideration allocable to such Person), and not jointly, indemnify
and hold harmless the Merger Participant Tax Representative from and against any Loss incurred without gross negligence, willful misconduct,
fraud or bad faith on the part of the Merger Participant Tax Representative and arising out of or in connection with the acceptance or
administration of its duties hereunder.
[Remainder of page intentionally left blank]
[Signature Pages]
Signature Page – Merger Agreement
Exhibit A
Current Assets
Current Liabilities
Exhibit B
Balance Sheet Rules
Exhibit C
Form of Escrow
Agreement
Exhibit D
Form of Member Approval
Exhibit 3.1
Third AMENDED AND
RESTATED
CERTIFICATE OF INCORPORATION
OF
SNAP ONE HOLDINGS
CORP.
* * * * *
The present name of the corporation
is Snap One Holdings Corp. (the “Corporation”). The Corporation was incorporated under the name “Crackle Intermediate
Corp.” by the filing of the Corporation’s original Certificate of Incorporation with the Secretary of State of the State of
Delaware on June 14, 2017. This Third Amended and Restated Certificate of Incorporation of the Corporation (this “Certificate
of Incorporation”), which restates and integrates and also further amends the provisions of the Corporation’s Certificate
of Incorporation, as amended and restated, was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation
Law of the State of Delaware (“DGCL”) and by the written consent of its stockholders in accordance with Section 228
of the General Corporation Law of the State of Delaware . The Certificate of Incorporation of the Corporation, as amended and restated,
is hereby amended, integrated and restated to read in its entirety as follows:
ARTICLE
I
NAME
The name of the corporation
is: Snap One Holdings Corp.
ARTICLE
II
REGISTERED OFFICE AND AGENT
The address of the registered
office of the Corporation in the State of Delaware is 200 Bellevue Parkway, Suite 210, Bellevue Park Corporate Center, Wilmington, New
Castle County, Delaware 19809. The name of the registered agent of the Corporation in the State of Delaware at such address is Corporation
Services Delaware Ltd.
ARTICLE
III
PURPOSE
The purpose of the Corporation
is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the DGCL.
ARTICLE
IV
CAPITAL STOCK
The total number of shares
of all classes of capital stock that the Corporation shall have authority to issue is [•]
million ([•]), which shall be divided into two classes as follows:
[•]
million ([•]) shares of common stock, par value
$0.01 per share (“Common Stock”); and
[•]
million ([•]) shares of preferred stock, par value
$0.01 per share (“Preferred Stock”).
I. Capital Stock.
A. The
board of directors of the Corporation (the “Board of Directors”) is hereby expressly authorized, by resolution or
resolutions, at any time and from time to time, to provide, out of the unissued shares of Preferred Stock, for one or more series of
Preferred Stock and, with respect to each such series, to fix, without further stockholder approval, the number of shares constituting
such series and the designation of such series, the powers (including voting powers), preferences and relative, participating, optional
and other special rights, and the qualifications, limitations or restrictions thereof, of such series of Preferred Stock. The powers
(including voting powers), preferences and relative, participating, optional and other special rights of, and the qualifications, limitations
or restrictions thereof, of each series of Preferred Stock, if any, may differ from those of any and all other series at any time outstanding.
B. Each
holder of record of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder
on all matters on which stockholders are entitled to vote generally, including the election or removal of directors. Except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including
any certificate of designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one
or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any certificate of designation relating
to any series of Preferred Stock) or pursuant to the DGCL.
C. Except
as otherwise required by law, holders of any series of Preferred Stock shall be entitled to only such voting rights, if any, as shall
expressly be granted thereto by this Certificate of Incorporation (including any certificate of designation relating to such series of
Preferred Stock).
D. Subject
to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of capital
stock having a preference over or the right to participate with the Common Stock with respect to the payment of dividends and other distributions
in cash, property or shares of capital stock of the Corporation, dividends and other distributions may be declared and paid ratably on
the Common Stock out of the assets of the Corporation that are legally available for this purpose at such times and in such amounts as
the Board of Directors in its discretion shall determine.
E. Upon
the dissolution, liquidation or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities
of the Corporation and subject to the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series
of capital stock having a preference over or the right to participate with the Common Stock with respect to the distribution of assets
of the Corporation upon such dissolution, liquidation or winding up of the Corporation, the holders of Common Stock shall be entitled
to receive the remaining assets of the Corporation available for distribution to its stockholders ratably in proportion to the number
of shares held by them.
F. The number of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the capital stock of the Corporation
entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no
vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class shall be required therefor, unless
a vote of any such holder is required pursuant to this Certificate of Incorporation (including any certificate of designation relating
to any series of Preferred Stock).
ARTICLE
V
AMENDMENT OF THE CERTIFICATE OF INCORPORATION AND BYLAWS
A. Notwithstanding
anything contained in this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote of the stockholders,
at any time when H&F (as defined in Article VI(B) below) beneficially owns, in the aggregate, less than 40% in voting power of the
then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, then, in addition
to any vote required by applicable law or this Certificate of Incorporation (including any certificate of designation relating to any
series of Preferred Stock), any amendment, alteration, repeal or rescission, in whole or in part, of the following provisions in this
Certificate of Incorporation (or the adoption of any provision inconsistent therewith or herewith) shall require the affirmative vote
of the holders of at least 66 2/3% in voting power of all the then outstanding shares of capital stock of the Corporation entitled to
vote thereon, voting together as a single class: this Article V, Article VI, Article VII, Article VIII, Article IX and Article X. For
the purposes of this Certificate of Incorporation, beneficial ownership of shares shall be determined in accordance with Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
B. The
Board of Directors is expressly authorized to make, alter, amend, change, add to, rescind or repeal, in whole or in part, the bylaws
of the Corporation (as in effect from time to time, the “Bylaws”) without the assent or vote of the stockholders in
any manner not inconsistent with the laws of the State of Delaware or this Certificate of Incorporation. Notwithstanding anything contained
in this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote of the stockholders, at any time
when H&F beneficially owns, in the aggregate, less than 40% in voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, then, in addition to any vote of the holders of any class or series
of capital stock of the Corporation required herein (including any certificate of designation relating to any series of Preferred Stock),
by the Bylaws or by applicable law, the affirmative vote of the holders of at least 66 2/3% in voting power of all the then outstanding
shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required in order for
the stockholders of the Corporation to amend, alter, rescind, change, add or repeal, in whole or in part, any provision of the Bylaws
or to adopt any provision inconsistent therewith.
ARTICLE
VI
BOARD OF DIRECTORS
A.
Except as otherwise provided in this Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. Except as otherwise provided for or fixed pursuant to the provisions of
Article IV (including any certificate of designation with respect to any series of Preferred Stock) and this Article VI relating to the
rights of the holders of any series of Preferred Stock, voting separately as a series or together with one or more such other series,
as the case may be, to elect additional directors (any such directors, the “Preferred Directors”), the total number
of directors shall be determined from time to time exclusively by resolution adopted by the Board of Directors subject to the requirements
of the Stockholders Agreement (as defined below); provided that, at any time H&F owns, in the aggregate, at least 40% in voting
power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, the
stockholders may also fix the number of directors by resolution adopted by the stockholders. The directors (other than any Preferred Directors)
shall be divided into three classes designated Class I, Class II and Class III. Each class shall consist, as nearly as possible, of one-third
of the total number of such directors. Class I directors shall initially serve for a term expiring at the first annual meeting of stockholders
of the Corporation following the date the Common Stock is first publicly traded (the “IPO Date”), Class II directors
shall initially serve for a term expiring at the second annual meeting of stockholders following the IPO Date and Class III directors
shall initially serve for a term expiring at the third annual meeting of stockholders following the IPO Date. Commencing with the first
annual meeting following the IPO Date, the directors of the class to be elected at each annual meeting shall be elected for a three year
term. If the total number of such directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any such additional director of any class elected to fill a newly
created directorship resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term
of that class, but in no case shall a decrease in the total number of directors remove or shorten the term of any incumbent director.
Any such director shall hold office until the annual meeting at which their term expires and until their successor shall be elected and
qualified, or their earlier death, resignation, retirement, disqualification or removal from office. The Board of Directors is authorized
to assign members of the Board of Directors already in office to their respective class.
B. Subject
to the rights granted to the holders of any one or more series of Preferred Stock then outstanding or the rights granted pursuant to
the Stockholders Agreement, dated as of [⦁], by and among the
Corporation, certain affiliates of Hellman & Friedman LLC (together with its Affiliates (as defined below), subsidiaries,
successors and assigns (other than the Corporation and its subsidiaries), “H&F”) and certain other parties
named therein (as the same may be amended, supplemented, restated or otherwise modified from time to time, the
“Stockholders Agreement”), any newly-created directorship on the Board of Directors that results from an increase
in the total number of directors and any vacancy occurring in the Board of Directors (whether by death, resignation, retirement,
disqualification, removal or other cause) may be filled by the affirmative vote of a majority of the directors then in office,
although less than a quorum, by a sole remaining director or by the stockholders; provided, however, that, subject to
the aforementioned rights granted to holders of one or more series of Preferred Stock or rights generated pursuant to the
Stockholders Agreement, at any time when H&F beneficially owns, in the aggregate, less than 40% in voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, any newly-created
directorship on the Board of Directors that results from an increase in the number of directors and any vacancy occurring in the
Board of Directors shall be filled only by a majority of the directors then in office, although less than a quorum, or by a sole
remaining director (and not by stockholders). In no case shall a decrease in the total number of directors remove or shorten the
term of any incumbent director. Any director elected to fill a vacancy or newly created directorship shall hold office until the
next election of the class for which such director shall have been chosen and until such director’s successor shall be elected
and qualified, or until such director’s earlier death, resignation, retirement, disqualification or removal.
C. Any
or all of the directors (other than any Preferred Directors) may be removed at any time either with or without cause by the affirmative
vote of a majority in voting power of all then outstanding shares of capital stock of the Corporation entitled to vote thereon, voting
together as a single class; provided, however, that at any time when H&F beneficially owns, in the aggregate, less
than 40% in voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election
of directors, any such director or all such directors may be removed only for cause and only by the affirmative vote of the holders of
at least 66 2/3% in voting power of all the then outstanding shares of capital stock of the Corporation entitled to vote thereon, voting
together as a single class.
D. Elections
of directors need not be by written ballot unless the Bylaws shall so provide.
E. During
any period when the holders of any series of Preferred Stock, voting separately as a series or together with one or more other such series,
have the right to elect additional directors pursuant to the provisions of this Certificate of Incorporation (including any certificate
of designation with respect to any series of Preferred Stock) in respect of such series, then upon commencement and for the duration
of the period during which such right continues: (i) the then otherwise total authorized number of directors of the Corporation
shall automatically be increased by such specified number of directors, and the holders of such series of Preferred Stock shall be entitled
to elect the additional directors so provided for or fixed pursuant to said provisions, and (ii) each such additional director shall
serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold
such office terminates pursuant to said provisions, whichever occurs earlier, subject to such director’s earlier death, resignation,
retirement, disqualification or removal. Except as otherwise provided by the Board of Directors in the resolution or resolutions establishing
such series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such
right pursuant to the provisions of such capital stock, the terms of office of all such additional directors elected by the holders of
such capital stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional
directors, shall forthwith terminate (in which case each such director thereupon shall cease to be qualified as, and shall cease to be,
a director) and the total authorized number of directors of the Corporation shall automatically be reduced accordingly. Any Preferred
Director may be removed from office in the manner provided pursuant to the provisions of this Certificate of Incorporation (including
any certificate of designation with respect to any series of Preferred Stock) and applicable law.
F. As used in this Article VI only, the term “Affiliate” means a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, another Person, and the term “Person” means
any individual, corporation, general or limited partnership, limited liability company, joint venture, trust, association or any other
entity.
ARTICLE
VII
LIMITATION OF DIRECTOR LIABILITY
A. To
the fullest extent permitted by the DGCL as it now exists or may hereafter be amended, a director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty owed to the Corporation or its stockholders.
B. Neither
the amendment nor repeal of this Article VII, nor the adoption of any provision of this Certificate of Incorporation, nor, to the fullest
extent permitted by the DGCL, any modification of law shall eliminate, reduce or otherwise adversely affect any right or protection of
a current or former director of the Corporation with respect to acts or omissions occurring prior to the time of such amendment, repeal,
adoption or modification.
ARTICLE
VIII
CONSENT OF STOCKHOLDERS IN LIEU OF MEETING, ANNUAL AND SPECIAL MEETINGs OF STOCKHOLDERS
A. At
any time when H&F beneficially owns, in the aggregate, at least 40% in voting power of the then outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors, any action required or permitted to be taken at any annual
or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock having not less
than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation having custody of the books in which proceedings of meetings
of stockholders are recorded. Delivery made to the Corporation’s registered office shall be made by hand, or by certified or registered
mail, return receipt requested. At any time when H&F beneficially owns, in the aggregate, less than 40% in voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of such holders
and may not be effected by any consent of stockholders in lieu of a meeting; provided, however, that any action required
or permitted to be taken by the holders of Preferred Stock, voting separately as a series or separately as a class with one or more other
such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable
certificate of designation relating to such series of Preferred Stock.
B. Except
as otherwise required by law and subject to the rights of the holders of any series of Preferred Stock, special meetings of the
stockholders of the Corporation for any purpose or purposes may be called at any time only by or at the direction of the Board of
Directors or the Chairman of the Board of Directors; provided, however, that at any time when H&F beneficially
owns, in the aggregate, at least 40% in voting power of the then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, special meetings of the stockholders of the Corporation for any purpose or purposes
shall also be called by or at the direction of the Board of Directors or the Chairman of the Board of Directors at the request of
H&F.
C. An
annual meeting of stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place, if any, on such date, and at such time as shall be fixed
exclusively by resolution of the Board of Directors or a duly authorized committee thereof.
ARTICLE
IX
COMPETITION AND CORPORATE OPPORTUNITIES
A. In
recognition and anticipation that (i) certain directors, principals, officers, employees and/or other representatives of H&F may
serve as directors, officers or agents of the Corporation, (ii) H&F may now engage and may continue to engage in the same or similar
activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities
that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, and (iii) members of the Board
of Directors who are not employees of the Corporation (“Non-Employee Directors”) and their respective Affiliates (as
defined below) may now engage and may continue to engage in the same or similar activities or related lines of business as those in which
the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which
the Corporation, directly or indirectly, may engage, the provisions of this Article IX are set forth to regulate and define the conduct
of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any
of H&F, the Non-Employee Directors or their respective Affiliates and the powers, rights, duties and liabilities of the Corporation
and its directors, officers and stockholders in connection therewith.
B. None
of (i) H&F or (ii) any Non-Employee Director (including any Non-Employee Director who serves as an officer of the Corporation in
both such person’s director and officer capacities) or such person’s Affiliates (the Persons (as defined below)
identified in (i) and (ii) above being referred to, collectively, as “Identified Persons” and, individually, as
an “Identified Person”) shall, to the fullest extent permitted by law, have any duty to refrain from directly or
indirectly (1) engaging in the same or similar business activities or lines of business in which the Corporation or any of its
Affiliates now engages or proposes to engage or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the
fullest extent permitted by law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of
the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such
activities; for the avoidance of doubt, this item (2) shall not absolve such Identified Person of liability for any misuse or
disclosure of the Corporation’s confidential information in connection with such activities. To the fullest extent permitted
from time to time by the laws of the State of Delaware, the Corporation hereby renounces any interest or expectancy in, or right to
be offered an opportunity to participate in, any business opportunity that may be a corporate opportunity for an Identified Person
and the Corporation or any of its Affiliates, except as provided in Section (C) of this Article IX. Subject to said Section (C) of
this Article IX, in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity
that may be a corporate opportunity for itself, herself or himself, or any of its or their Affiliates, and the Corporation or any of
its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no duty to communicate or offer such
transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by law,
shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty
as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues or
acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another
Person.
C. The
Corporation does not renounce its interest in any corporate opportunity offered to any Non-Employee Director (including any Non-Employee
Director who serves as an officer of the Corporation) if such opportunity is expressly offered to such person solely in their capacity
as a director or officer of the Corporation, and the provisions of Section (B) of this Article IX shall not apply to any such corporate
opportunity.
D. In
addition to and notwithstanding the foregoing provisions of this Article IX, a corporate opportunity shall not be deemed to be a potential
corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally
able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the Corporation’s business or is of
no practical advantage to the Corporation or (iii) is one in which the Corporation has no interest or reasonable expectancy.
E. For
purposes of this Article IX, (i) “Affiliate” shall mean (a) in respect of H&F, any Person that, directly or indirectly,
is controlled by H&F, controls H&F or is under common control with H&F and shall include any principal, member, director,
manager, partner, stockholder, officer, employee or other representative of any of the foregoing (other than the Corporation and any
entity that is controlled by the Corporation), (b) in respect of a Non-Employee Director, any Person that, directly or indirectly, is
controlled by such Non-Employee Director (other than the Corporation and any entity that is controlled by the Corporation) and (c) in
respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation; and (ii) “Person”
shall mean any individual, corporation, general or limited partnership, limited liability company, joint venture, trust, association
or any other entity.
F. To
the fullest extent permitted by law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the
Corporation shall be deemed to have notice of and to have consented to the provisions of this Article IX.
ARTICLE
X
DGCL SECTION 203 AND BUSINESS COMBINATIONS
A. The
Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.
B. Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined below), at any point in
time at which the Corporation’s Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, with any interested
stockholder (as defined below) for a period of three (3) years following the time that such stockholder became an interested stockholder,
unless:
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1.
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prior to such time, the Board of Directors approved either the business combination or the transaction that resulted in the stockholder
becoming an interested stockholder, or
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2.
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding
for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those
shares owned by (i) persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or
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3.
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at or subsequent to such time, the business combination is approved by the Board of Directors and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock of the
Corporation that is not owned by the interested stockholder, or
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4.
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the stockholder became an interested stockholder inadvertently and (i) as soon as practicable divested itself of ownership of sufficient
shares so that the stockholder ceased to be an interested stockholder and (ii) was not, at any time within the three-year period immediately
prior to a business combination between the Corporation and such stockholder, an interested stockholder but for the inadvertent acquisition
of ownership.
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C. For
purposes of this Article X, references to:
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1.
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“affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with, another person.
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2.
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“associate,” when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated
association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or
more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to
which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative
of such spouse, who has the same residence as such person.
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3.
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“H&F Direct Transferee” means any person that acquires (other than in a registered public offering) directly from
H&F or any of its successors or any “group”, or any member of any such group, of which such persons are a party under
Rule 13d-5 of the Exchange Act beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation.
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4.
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“H&F Indirect Transferee” means any person that acquires (other than in a registered public offering) directly
from any H&F Direct Transferee or any other H&F Indirect Transferee beneficial ownership of 15% or more of the then outstanding
voting stock of the Corporation.
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5.
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“business combination,” when used in reference to the Corporation and any interested stockholder of the Corporation,
means:
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(i)
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any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (a) with the interested
stockholder, or (b) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation
is caused by the interested stockholder and as a result of such merger or consolidation Section (B) of this Article X is not applicable
to the surviving entity;
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(ii)
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any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately
as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets
of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value
equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or
the aggregate market value of all the outstanding stock of the Corporation;
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(iii)
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any transaction that results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of
the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (a) pursuant to the exercise,
exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary
which securities were outstanding prior to the time that the interested stockholder became such; (b) pursuant to a merger under Section
251(g) of the DGCL; (c) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable
for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to
all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (d) pursuant
to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (e) any issuance or
transfer of stock by the Corporation; provided, however, that in no case under items (c)-(e) of this subsection (iii) shall
there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation
or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments);
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(iv)
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any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation that has the effect,
directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the
stock of any class or series, of the Corporation or of any such subsidiary that is owned by the interested stockholder, except as a result
of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused,
directly or indirectly, by the interested stockholder; or
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(v)
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any receipt by the interested stockholder of the benefit, directly
or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial
benefits (other than those expressly permitted in subsections (i)-(iv) above) provided by or through the Corporation or any direct or
indirect majority-owned subsidiary.
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6.
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“control,” including the terms “controlling,” “controlled by” and “under
common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20%
or more of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed
to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing,
a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing
this Article X, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group
have control of such entity.
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7.
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“interested stockholder”
means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the
owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an affiliate or associate of the Corporation and
was the owner of 15% or more of the outstanding voting stock of the Corporation at any time within the three (3) year period immediately
prior to the date on which it is sought to be determined whether such person is an interested stockholder; and the affiliates and associates
of such person; but “interested stockholder” shall not include (a) H&F, any H&F Direct Transferee, any H&F Indirect
Transferee or any of their respective affiliates or successors or any “group”, or any member of any such group, to which
such persons are a party under Rule 13d-5 of the Exchange Act, or (b) any person whose ownership of shares in excess of the 15% limitation
set forth herein is the result of any action taken solely by the Corporation, provided that in the case of clause (b) such person
shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as
a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person
is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by
the person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation
that may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options,
or otherwise.
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8.
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“owner,”
including the terms “own” and “owned,” when used with respect to any stock, means a person that
individually or with or through any of its affiliates or associates:
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(i)
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beneficially owns such stock, directly or indirectly; or
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(ii)
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has (a) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise;
provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer
made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange;
or (b) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a
person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement
or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation
made to ten (10) or more persons; or
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(iii)
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has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable
proxy or consent as described in item (b) of subsection (ii) above), or disposing of such stock with any other person that beneficially
owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.
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9.
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“person”
means any individual, corporation, partnership, unincorporated association or other entity.
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10.
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“stock”
means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.
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11.
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“voting
stock” means stock of any class or series entitled to vote generally in the election of directors and, with respect to any
entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity.
Every reference in this Article X to a percentage of voting stock shall refer to such percentage of the votes of such voting stock.
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ARTICLE
XI
MISCELLANEOUS
(A) If
any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any
circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and
of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this
Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be
invalid, illegal or unenforceable) shall not, to the fullest extent permitted by law, in any way be affected or impaired thereby and (ii)
to the fullest extent permitted by law, the provisions of this Certificate of Incorporation (including, without limitation, each such
portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in
respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.
(B) Unless
the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall,
to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on
behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director,
officer, employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action
asserting a claim against the Corporation or any current or former director, officer, employee or stockholder of the Corporation
arising pursuant to any provision of the DGCL or this Certificate of Incorporation or the Bylaws (as either may be amended and/or
restated from time to time), or (iv) any action asserting a claim governed by the internal affairs doctrine of the law of the State
of Delaware. These provisions shall not apply to suits brought to enforce a duty or liability created by the Exchange Act or any
other claim for which the federal courts have exclusive jurisdiction and the Corporation’s stockholders cannot waive
compliance with federal securities laws and the rules and regulations thereunder. Unless the Corporation consents in writing to the
selection of an alternative forum, to the fullest extent permitted by law, the federal district courts of the United States of
America will be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the federal
securities laws of the United States of America. To the fullest extent permitted by law, any person purchasing or otherwise
acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and provided
consent to the provisions of this Article XI(B).
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left blank]
IN WITNESS WHEREOF, Snap One
Holdings Corp. has caused this Third Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer on
the day first written above.
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SNAP
ONE HOLDINGS CORP.
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By:
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Name:
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Title:
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Exhibit 3.2
Second
Amended AND RESTATED
bylaws
of snap one holdings corp.
* *
* * *
ARTICLE I
Offices
SECTION 1.01 Registered
Office. The registered office and registered agent of Snap One Holdings Corp. (the “Corporation”) in the State
of Delaware shall be as set forth in the Certificate of Incorporation (as defined below) from time to time. The Corporation may also have
offices in such other places in the United States or elsewhere as the board of directors of the Corporation (the “Board of Directors”)
may, from time to time, determine or as the business of the Corporation may require as determined by any officer of the Corporation.
ARTICLE II
Meetings of Stockholders
SECTION 2.01 Annual Meetings.
Annual meetings of stockholders may be held at such place, if any, either within or without the State of Delaware, and at such time and
date as the Board of Directors shall determine and state in the notice of meeting. The Board of Directors may, in its sole discretion,
determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication, including
by webcast, as described in Section 2.11 of these Second Amended and Restated Bylaws (these “Bylaws”) in accordance
with Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”). The Board of Directors
may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors.
SECTION 2.02 Special Meetings.
Special meetings of the stockholders may only be called in the manner provided in the Corporation’s amended and restated certificate
of incorporation as then in effect (as the same may be amended from time to time, the “Certificate of Incorporation”) and
may be held at such place, if any, either within or without the State of Delaware, and at such time and date as the Board of Directors
or the Chairman of the Board of Directors shall determine and state in the notice of such meeting. The Board of Directors may, in its
sole discretion, determine that special meetings of stockholders shall not be held at any place, but may instead be held solely by means
of remote communication as described in Section 2.11 of these Bylaws in accordance with Section 211(a)(2) of the DGCL. The Board
of Directors may postpone, reschedule or cancel any special meeting of stockholders previously scheduled by the Board of Directors or
the Chairman of the Board of Directors; provided, however, that with respect to any special meeting of stockholders previously
scheduled by the Board of Directors or the Chairman of the Board of Directors at the request of H&F (as defined in the Certificate
of Incorporation), the Board of Directors shall not postpone, reschedule or cancel such special meeting without the prior written consent
of H&F.
SECTION 2.03 Notice of
Stockholder Business and Nominations.
(A) Annual
Meetings of Stockholders.
(1) Nominations
of persons for election to the Board of Directors and the proposal of other business to be considered by the stockholders may be made
at an annual meeting of stockholders only (a) as provided in the Stockholders Agreement (as defined in the Certificate of Incorporation)
(with respect to nominations of persons for election to the Board of Directors only), (b) pursuant to the Corporation’s notice of
meeting (or any supplement thereto) delivered pursuant to Section 2.04 of Article II of these Bylaws, (c) by or at the direction of the
Board of Directors or any authorized committee thereof or (d) by any stockholder of the Corporation who is entitled to vote at the meeting,
who, subject to paragraph (C)(4) of this Section 2.03, complied with the notice procedures set forth in paragraphs (A)(2) and (A)(3) of
this Section 2.03 and who was a stockholder of record at the time such notice is delivered to the Secretary of the Corporation.
(2) For
nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (d) of paragraph (A)(1)
of this Section 2.03, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation, and, in the
case of business other than nominations of persons for election to the Board of Directors, such other business must constitute a proper
matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred and twenty (120) days prior to
the first anniversary of the preceding year’s annual meeting (which date shall, for purposes of the Corporation’s first annual
meeting of stockholders after its shares of Common Stock (as defined in the Certificate of Incorporation) are first publicly traded, be
deemed to have occurred on [⦁], 2021); provided, however,
that in the event that the date of the annual meeting is advanced by more than thirty (30) days, or delayed by more than seventy
(70) days, from the anniversary date of the previous year’s meeting, or if no annual meeting was held in the preceding year, notice
by the stockholder to be timely must be so delivered not earlier than the close of business on the one hundred and twentieth (120th) day
prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting
or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation. Public
announcement of an adjournment or postponement of an annual meeting shall not commence a new time period (or extend any time period) for
the giving of a stockholder’s notice. Notwithstanding anything in this Section 2.03(A)(2) to the contrary, if the number of directors
to be elected to the Board of Directors at an annual meeting is increased and there is no public announcement by the Corporation naming
all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) calendar days prior
to the first anniversary of the prior year’s annual meeting of stockholders, then a stockholder’s notice required by this
Section shall be considered timely, but only with respect to nominees for any new positions created by such increase, if it is received
by the Secretary of the Corporation not later than the close of business on the tenth (10th) calendar day following the day on which such
public announcement is first made by the Corporation.
(3) A
stockholder’s notice delivered pursuant to this Section 2.03 shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules
and regulations promulgated thereunder, including such person’s written consent to being named in the Corporation’s
proxy statement as a nominee of the stockholder and to serving as a director if elected; (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the
text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such
business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such
business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books and
records, and of such beneficial owner, (ii) the class or series and number of shares of capital stock of the Corporation that are
owned, directly or indirectly, beneficially and of record by such stockholder and such beneficial owner, (iii) a representation that
the stockholder is a holder of record of the stock of the Corporation at the time of the giving of the notice, will be entitled to
vote at such meeting and will appear in person or by proxy at the meeting to propose such business or nomination, (iv) a
representation whether the stockholder or the beneficial owner, if any, will be or is part of a group that will (x) deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the voting power of the Corporation’s outstanding
capital stock required to approve or adopt the proposal or elect the nominee and/or (y) otherwise solicit proxies or votes from
stockholders in support of such proposal or nomination, (v) a certification regarding whether such stockholder and beneficial owner,
if any, have complied with all applicable federal, state and other legal requirements in connection with the stockholder’s
and/or beneficial owner’s acquisition of shares of capital stock or other securities of the Corporation and/or the
stockholder’s and/or beneficial owner’s acts or omissions as a stockholder of the Corporation and (vi) any other
information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of
directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations
promulgated thereunder; (d) a description of any agreement, arrangement or understanding with respect to the nomination or proposal
and/or the voting of shares of any class or series of stock of the Corporation between or among the stockholder giving the notice,
the beneficial owner, if any, on whose behalf the nomination or proposal is made, any of their respective affiliates or associates
and/or any others acting in concert with any of the foregoing (collectively, “proponent persons”); and (e) a
description of any agreement, arrangement or understanding (including without limitation any contract to purchase or sell,
acquisition or grant of any option, right or warrant to purchase or sell, swap or other instrument) to which any proponent person is
a party, the intent or effect of which may be (i) to transfer to or from any proponent person, in whole or in part, any of the
economic consequences of ownership of any security of the Corporation, (ii) to increase or decrease the voting power of any
proponent person with respect to shares of any class or series of stock of the Corporation and/or (iii) to provide any proponent
person, directly or indirectly, with the opportunity to profit or share in any profit derived from, or to otherwise benefit
economically from, any increase or decrease in the value of any security of the Corporation. A stockholder providing notice of a
proposed nomination for election to the Board of Directors or other business proposed to be brought before a meeting (whether given
pursuant to this paragraph (A)(3) or paragraph (B) of this Section 2.03 of these Bylaws) shall update and supplement such notice
from time to time to the extent necessary so that the information provided or required to be provided in such notice shall be true
and correct (x) as of the record date for determining the stockholders entitled to notice of the meeting and (y) as of the date that
is fifteen (15) days prior to the meeting or any adjournment or postponement thereof, provided that if the record date for
determining the stockholders entitled to vote at the meeting is less than fifteen (15) days prior to the meeting or any adjournment
or postponement thereof, the information shall be supplemented and updated as of such later date. Any such update and supplement
shall be delivered in writing to the Secretary of the Corporation at the principal executive offices of the Corporation not later
than five (5) days after the record date for determining the stockholders entitled to notice of the meeting (in the case of any
update and supplement required to be made as of the record date for determining the stockholders entitled to notice of the meeting),
not later than ten (10) days prior to the date for the meeting or any adjournment or postponement thereof (in the case of any update
or supplement required to be made as of fifteen (15) days prior to the meeting or adjournment or postponement thereof) and not later
than five (5) days after the record date for determining the stockholders entitled to vote at the meeting, but no later than the day
prior to the meeting or any adjournment or postponement thereof (in the case of any update and supplement required to be made as of
a date less than fifteen (15) days prior to the date of the meeting or any adjournment or postponement thereof). The Corporation may
require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such
proposed nominee to serve as a director of the Corporation and to determine the independence of such director under the Exchange Act
and rules and regulations thereunder and applicable stock exchange rules.
(B) Special
Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation’s notice of meeting. At any time that the stockholders are not prohibited from
filling vacancies or newly created directorships on the Board of Directors, nominations of persons for election to the Board of
Directors to fill any vacancy or unfilled newly created directorship may be made at a special meeting of stockholders at which any
proposal to fill any vacancy or unfilled newly created directorship is to be presented to the stockholders (1) as provided in the
Stockholders Agreement, (2) by or at the direction of the Board of Directors or any committee thereof or (3) by any stockholder of
the Corporation who is entitled to vote at the meeting on such matters, who (subject to paragraph (C)(4) of this Section 2.03)
complies with the notice procedures set forth in this Section 2.03 and who is a stockholder of record at the time such notice is
delivered to the Secretary of the Corporation. In the event the Corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to fill any vacancy or newly created directorship on the Board of Directors, any such stockholder
entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation’s notice of meeting if the stockholder’s notice as required by paragraph
(A)(2) of this Section 2.03 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier
than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the
close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th)
day following the day on which the Corporation first makes a public announcement of the date of the special meeting at which
directors are to be elected. In no event shall the public announcement of an adjournment or postponement of a special meeting
commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(C) General.
(1) Except as provided in paragraph (C)(4) of this Section 2.03, only such persons who are nominated in accordance with the procedures
set forth in this Section 2.03 or the Stockholders Agreement shall be eligible to serve as directors and only such business shall be conducted
at an annual or special meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth
in this Section. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the chairman of the meeting shall,
in addition to making any other determination that may be appropriate for the conduct of the meeting, have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance
with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare
that such defective proposal or nomination shall be disregarded. The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board
of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of the meeting shall
have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures
for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting
to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the chairman of
the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations
on the time allotted to questions or comments by participants and on shareholder approvals. Notwithstanding the foregoing provisions of
this Section 2.03, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the Corporation to present a nomination or business, such nomination shall be disregarded
and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the
Corporation. For purposes of this Section 2.03, to be considered a qualified representative of the stockholder, a person must be a duly
authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce
such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
Unless and to the extent determined by the Board of Directors or the chairman of the meeting, the meeting of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
(2) Whenever
used in these Bylaws, “public announcement” shall mean disclosure (a) in a press release released by the Corporation, provided that
such press release is released by the Corporation following its customary procedures, is reported by the Dow Jones News
Service, Associated Press or comparable national news service, or is generally available on internet news sites, or (b) in a
document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the
Exchange Act and the rules and regulations promulgated thereunder.
(3) Notwithstanding
the foregoing provisions of this Section 2.03, a stockholder shall also comply with all applicable requirements of the Exchange Act and
the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.03; provided, however,
that, to the fullest extent permitted by law, any references in these Bylaws to the Exchange Act or the rules and regulations promulgated
thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to
be considered pursuant to these Bylaws (including paragraphs (A)(1)(d) and (B) of this Section 2.03), and compliance with paragraphs (A)(1)(d)
and (B) of this Section 2.03 of these Bylaws shall be the exclusive means for a stockholder to make nominations or submit other business.
Nothing in these Bylaws shall be deemed to affect any rights of the holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation to elect directors under specified circumstances.
(4) Notwithstanding
anything to the contrary contained in this Section 2.03, for as long as the Stockholders Agreement remains in effect with respect to H&F,
H&F (to the extent then subject to the Stockholders Agreement) shall not be subject to the notice procedures set forth in paragraphs
(A)(2), (A)(3) or (B) of this Section 2.03 with respect to any annual or special meeting of stockholders.
SECTION 2.04 Notice of
Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a timely notice in writing or by electronic
transmission, in the manner provided in Section 232 of the DGCL, of the meeting, which shall state the place, if any, date and time
of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person
and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different
from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purposes
for which the meeting is called, shall be mailed to or transmitted electronically by the Secretary of the Corporation to each stockholder
of record entitled to vote thereat as of the record date for determining the stockholders entitled to notice of the meeting. Unless otherwise
provided by law, the Certificate of Incorporation or these Bylaws, the notice of any meeting shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for
determining the stockholders entitled to notice of the meeting.
SECTION
2.05 Quorum. Unless otherwise required by law, the Certificate of Incorporation or the rules of any stock exchange upon
which the Corporation’s securities are listed, the holders of record of a majority of the voting power of the issued and
outstanding shares of capital stock of the Corporation entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at all meetings of stockholders. Notwithstanding the foregoing, where a separate
vote by a class or series or classes or series is required, a majority in voting power of the outstanding shares of such class or
series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with
respect to the vote on that matter. Once a quorum is present to organize a meeting, it shall not be broken by the subsequent
withdrawal of any stockholders.
SECTION 2.06 Voting.
Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, each stockholder entitled to vote at
any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon
the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing
without a meeting may authorize another person or persons to act for such stockholder by proxy in any manner provided by applicable law,
but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy
shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law
to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person
or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. Unless required by
the Certificate of Incorporation or applicable law, or determined by the chairman of the meeting to be advisable, the vote on any question
need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by such stockholder’s proxy,
if there be such proxy. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the voting power
of the shares of stock present in person or represented by proxy and entitled to vote on the subject matter shall decide any question
brought before such meeting, unless the question is one upon which, by express provision of applicable law, of the rules or regulations
of any stock exchange applicable to the Corporation, of any regulation applicable to the Corporation or its securities, of the Certificate
of Incorporation or of these Bylaws, a different vote is required, in which case such express provision shall govern and control the decision
of such question. Notwithstanding the foregoing sentence and subject to the Certificate of Incorporation, all elections of directors shall
be determined by a plurality of the votes cast in respect of the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors.
SECTION 2.07 Chairman
of Meetings. The Chairman of the Board of Directors, if one is elected, or, in his or her absence or disability or refusal to act,
the Chief Executive Officer of the Corporation (if the Chief Executive Officer is not also the Chairman of the Board of Directors), or
in the absence, disability or refusal to act of the Chairman of the Board of Directors and the Chief Executive Officer, a person designated
by the Board of Directors shall be the chairman of the meeting and, as such, preside at all meetings of the stockholders.
SECTION 2.08 Secretary
of Meetings. The Secretary of the Corporation shall act as Secretary at all meetings of the stockholders. In the absence, disability
or refusal to act of the Secretary, the chairman of the meeting shall appoint a person to act as Secretary at such meetings.
SECTION 2.09 Consent of
Stockholders in Lieu of Meeting. Any action required or permitted to be taken at any annual or special meeting of stockholders of
the Corporation may be taken without a meeting, without prior notice and without a vote only to the extent permitted by and in the manner
provided in the Certificate of Incorporation and in accordance with applicable law.
SECTION 2.10 Adjournment.
At any meeting of stockholders of the Corporation, if less than a quorum be present, the chairman of the meeting or stockholders holding
a majority in voting power of the shares of stock of the Corporation present in person or by proxy and entitled to vote thereon, shall
have the power to adjourn the meeting from time to time without notice other than announcement at the meeting until a quorum shall attend.
Any business may be transacted at the adjourned meeting that might have been transacted at the meeting originally noticed. If the adjournment
is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at
the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned
meeting, the Board of Directors shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting
the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give
notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date so fixed
for notice of such adjourned meeting.
SECTION 2.11 Remote Communication.
If authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors
may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(a) participate in a meeting
of stockholders; and
(b) be deemed present in person
and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication,
provided that
(i) the Corporation shall implement
reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is
a stockholder or proxyholder;
(ii) the Corporation shall implement
reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on
matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently
with such proceedings; and
(iii) if any stockholder or
proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
SECTION 2.12 Inspectors of Election. The Corporation may, and shall if required by law, in advance of any meeting of stockholders,
appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment
thereof and to make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of
stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with
strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall
(i) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each such share, (ii)
determine the shares of capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (iii)
count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to
any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the Corporation
represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify
such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any
meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as an inspector at such election.
SECTION
2.13 Delivery to the Corporation. Whenever Section 2.03 of this Article II requires one
or more persons (including a record or beneficial owner of stock) other than any party to the Stockholders Agreement to deliver a document
or information to the Corporation or any officer, employee or agent thereof (including any notice, request, questionnaire, revocation,
representation or other document or agreement), unless the Corporation elects otherwise, such document or information shall be in writing
exclusively (and not in an electronic transmission) and shall be delivered exclusively by hand (including, without limitation, overnight
courier service) or by certified or registered mail, return receipt requested, and the Corporation shall not be required to accept delivery
of any document not in such written form or so delivered.
ARTICLE III
Board of Directors
SECTION 3.01 Powers.
Except as otherwise provided by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors. The Board of Directors may exercise all such authority and powers of the Corporation
and do all such lawful acts and things as are not, by the DGCL or the Certificate of Incorporation, directed or required to be exercised
or done by the stockholders.
SECTION 3.02 Number and
Term; Chairman. Subject to the Certificate of Incorporation, the number of directors shall be fixed in the manner provided in the
Certificate of Incorporation. The term of each director shall be as set forth in the Certificate of Incorporation. Directors need not
be stockholders. The Board of Directors shall elect a Chairman of the Board, who shall have the powers and perform such duties as provided
in these Bylaws and as the Board of Directors may from time to time prescribe. The Chairman of the Board shall preside at all meetings
of the Board of Directors at which he or she is present. If the Chairman of the Board is not present at a meeting of the Board of Directors,
the Chief Executive Officer (if the Chief Executive Officer is a director and is not also the Chairman of the Board) shall preside at
such meeting, and, if the Chief Executive Officer is not present at such meeting or is not a director, a majority of the directors present
at such meeting shall elect one (1) director to preside over such meeting.
SECTION 3.03 Resignations.
Any director may resign at any time upon notice given in writing or by electronic transmission to the Board of Directors, the Chairman
of the Board of Directors, the Chief Executive Officer, the President or the Secretary of the Corporation. The resignation shall take
effect at the time or the happening of any event specified therein, and if no time or event is specified, at the time of its receipt.
The acceptance of a resignation shall not be necessary to make it effective unless otherwise expressly provided in the resignation.
SECTION 3.04 Removal.
Directors of the Corporation may be removed in the manner provided in the Certificate of Incorporation and applicable law.
SECTION 3.05 Vacancies
and Newly Created Directorships. Except as otherwise provided by law and subject to the terms of the Stockholders Agreement, vacancies
occurring in any directorship (whether by death, resignation, retirement, disqualification, removal or other cause) and newly created
directorships resulting from any increase in the number of directors shall be filled in accordance with the Certificate of Incorporation.
Any director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which
such director shall have been chosen and until his or her successor shall be elected and qualified, or until his or her earlier death,
resignation, retirement, disqualification or removal.
SECTION 3.06 Meetings.
Regular meetings of the Board of Directors may be held at such places and times as shall be determined from time to time by the Board
of Directors. Special meetings of the Board of Directors may be called by the Chief Executive Officer of the Corporation, the President
of the Corporation or the Chairman of the Board of Directors, and shall be called by the Chief Executive Officer, the President or the
Secretary of the Corporation if directed by the Board of Directors and shall be at such places and times as they or he or she shall fix.
Notice need not be given of regular meetings of the Board of Directors. At least twenty-four (24) hours before each special meeting of
the Board of Directors, either written notice, notice by electronic transmission or oral notice (either in person or by telephone) of
the time, date and place of the meeting shall be given to each director. Unless otherwise indicated in the notice thereof, any and all
business may be transacted at a special meeting.
SECTION 3.07 Quorum, Voting
and Adjournment. Except as otherwise provided by law, the Certificate of Incorporation, or these Bylaws, a majority of the total number
of directors shall constitute a quorum for the transaction of business. Except as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board
of Directors. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting to another time and place.
Notice of such adjourned meeting need not be given if the time and place of such adjourned meeting are announced at the meeting so adjourned.
SECTION
3.08 Committees; Committee Rules. The Board of Directors may designate one or more committees, including but not limited
to an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee. Each such committee shall be
comprised of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee to replace any absent or disqualified member at any meeting of the committee. Any such committee,
to the extent provided in the resolution of the Board of Directors establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or
authority to: (a) approve, adopt, or recommend to the stockholders any action or matter (other than the election or removal of
directors) expressly required by the DGCL to be submitted to stockholders for approval or (b) adopt, amend or repeal any Bylaw
of the Corporation. Each committee of the Board of Directors may fix its own rules of procedure and shall hold its meetings as
provided by such rules, except as may otherwise be provided by a resolution of the Board of Directors designating such committee.
Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be
necessary to constitute a quorum unless the committee shall consist of one or two members, in which event one member shall
constitute a quorum; and all matters shall be determined by a majority vote of the members present at a meeting of the committee at
which a quorum is present. Unless otherwise provided in such a resolution, in the event that a member and that member’s
alternate, if alternates are designated by the Board of Directors, of such committee is or are absent or disqualified, the member or
members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified
member.
SECTION 3.09 Action Without
a Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or any committee
thereof, as the case may be, consent thereto in writing or by electronic transmission. After an action is taken, the consent or consents,
or electronic transmission or transmissions, shall be filed in the minutes of proceedings of the Board of Directors in accordance with
applicable law. Such filing shall be in paper form if the minutes are maintained in paper form or shall be in electronic form if the minutes
are maintained in electronic form.
SECTION 3.10 Remote Meeting.
Unless otherwise restricted by the Certificate of Incorporation, members of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting by means of conference telephone or other communications equipment in which all persons
participating in the meeting can hear each other. Participation in a meeting by means of conference telephone or other communications
equipment shall constitute presence in person at such meeting.
SECTION 3.11 Compensation.
The Board of Directors shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity.
SECTION 3.12 Reliance on Books and Records. A member of the Board of Directors, or a member of any committee designated by the Board
of Directors shall, in the performance of such person’s duties, be fully protected in relying in good faith upon records of
the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the
Corporation’s officers or employees, or committees of the Board of Directors, or by any other person as to matters the member
reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable
care by or on behalf of the Corporation.
ARTICLE IV
Officers
SECTION 4.01 Number.
The officers of the Corporation shall include a Chief Executive Officer and a Secretary, each of whom shall be elected by the Board of
Directors and who shall hold office for such terms as shall be determined by the Board of Directors and until their successors are elected
and qualify or until their earlier resignation or removal. In addition, the Board of Directors may elect a President, one or more Vice
Presidents, including one or more Executive Vice Presidents or Senior Vice Presidents, a Chief Financial Officer, a General Counsel, a
Treasurer, one or more Assistant Treasurers, one or more Assistant Secretaries, one or more Assistant General Counsels and any other additional
officers as the Board of Directors deems necessary or advisable, who shall hold their respective offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by the Board of Directors. Any number of offices may be held
by the same person.
SECTION 4.02 Other Officers
and Agents. The Board of Directors may appoint such other officers and agents as it deems advisable, who shall hold their office for
such terms and shall exercise and perform such powers and duties as shall be determined from time to time by the Board of Directors.
SECTION 4.03 Chief Executive
Officer. The Chief Executive Officer shall have general executive charge, management, and control of the business and affairs of the
Corporation in the ordinary course of its business, with all such powers as may be reasonably incident to such responsibilities or that
are delegated to him or her by the Board of Directors. If the Board of Directors has not elected a Chairman of the Board or in the absence,
inability or refusal to act of such elected person to act as the Chairman of the Board, the Chief Executive Officer shall exercise all
of the powers and discharge all of the duties of the Chairman of the Board, but only if the Chief Executive Officer is a director of the
Corporation. He or she shall have power to sign all stock certificates, contracts and other instruments of the Corporation and shall have
general supervision and direction of all of the other officers, employees and agents of the Corporation.
SECTION
4.05 President. The President, if one is elected, shall have such powers and duties in
the management of the Corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as
generally pertain to their respective offices, subject to the control of the Board of Directors.
SECTION 4.06 Vice Presidents.
Each Vice President, if any are elected, of whom one or more may be designated an Executive Vice President or Senior Vice President, shall
have such powers and shall perform such duties as shall be assigned to him by the Chief Executive Officer or the Board of Directors.
SECTION 4.07 Chief Financial
Officer. The Chief Financial Officer, if any is elected, shall have custody of the corporate funds, securities, evidences of indebtedness
and other valuables of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation. The Chief Financial Officer shall deposit all moneys and other valuables in the name and to the credit of the Corporation
in such depositories as may be designated by the Board of Directors or its designees selected for such purposes. The Chief Financial Officer
shall disburse the funds of the Corporation, taking proper vouchers therefor. The Chief Financial Officer shall render to the Chief Executive
Officer and the Board of Directors, upon their request, a report of the financial condition of the Corporation.
In addition, the Chief Financial
Officer shall have such further powers and perform such other duties incident to the office of Chief Financial Officer as from time to
time are assigned to him or her by the Chief Executive Officer or the Board of Directors.
SECTION
4.08 General Counsel. The General Counsel, if one is elected, shall have such powers and
duties in the management of the Corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided,
as generally pertain to their respective offices, subject to the control of the Board of Directors.
SECTION
4.09 Treasurer. The Treasurer, if one is elected, shall have such powers and duties in
the management of the Corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as
generally pertain to their respective offices, subject to the control of the Board of Directors.
SECTION 4.10 Secretary.
The Secretary shall: (a) cause minutes of all meetings of the stockholders and directors to be recorded and kept properly; (b) cause all
notices required by these Bylaws or otherwise to be given properly; (c) see that the minute books, stock books, and other nonfinancial
books, records and papers of the Corporation are kept properly; and (d) cause all reports, statements, returns, certificates and other
documents to be prepared and filed when and as required.
SECTION 4.11 Assistant
Treasurers, Assistant Secretaries and Assistant General Counsels. Each Assistant Treasurer, each Assistant Secretary and each Assistant
General Counsel, if any are elected, shall have such powers and duties in the management of the Corporation as may be prescribed in a
resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to
the control of the Board of Directors.
SECTION
4.12 Contracts and Other Documents. The Board of Directors, except as otherwise
provided in these Bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances. Unless
so authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for
any purpose or for any amount. Except as provided in Section 2.13 of these Bylaws, any document, including, without limitation, any
consent, agreement, certificate or instrument, required by the DGCL, the Certificate of Incorporation or these Bylaws to be
executed by any officer, director, stockholder, employee or agent of the Corporation may be executed using a facsimile or other form
of electronic signature to the fullest extent permitted by applicable law. All other contracts, agreements, certificates or
instruments to be executed on behalf of the Corporation may be executed using a facsimile or other form of electronic signature to
the fullest extent permitted by applicable law.
SECTION 4.13 Ownership
of Securities of Another Entity. Unless otherwise directed by the Board of Directors, the Chief Executive Officer, the President,
a Vice President, the Chief Financial Officer, the General Counsel, the Treasurer or the Secretary, or such other officer or agent as
shall be authorized by the Board of Directors, shall have the power and authority, on behalf of the Corporation, to attend and to vote
at any meeting of securityholders of any entity in which the Corporation holds securities or equity interests and may exercise, on behalf
of the Corporation, any and all of the rights and powers incident to the ownership of such securities or equity interests at any such
meeting, including the authority to execute and deliver proxies and consents on behalf of the Corporation.
SECTION 4.14 Delegation
of Duties. In the absence, disability or refusal of any officer to exercise and perform his or her duties, the Board of Directors
may delegate to another officer such powers or duties.
SECTION 4.15 Resignation
and Removal. Any officer of the Corporation may be removed from office for or without cause at any time by the Board of Directors.
Any officer may resign at any time in the same manner prescribed under Section 3.03 of these Bylaws.
SECTION 4.16 Vacancies.
The Board of Directors shall have the power to fill vacancies occurring in any office.
ARTICLE V
Stock
SECTION 5.01 Shares With
Certificates.
The shares of stock of the Corporation
shall be uncertificated and shall not be represented by certificates, except to the extent as may be required by applicable law or as
otherwise authorized by the Board of Directors. Notwithstanding the foregoing, shares of stock represented by a certificate and issued
and outstanding on [⦁], 2021 shall remain represented by a certificate
until such certificate is surrendered to the Corporation.
If shares of stock of the
Corporation shall be certificated, such certificates shall be in such form as is consistent with the Certificate of Incorporation
and applicable law. Every holder of stock in the Corporation represented by certificates shall be entitled to have a certificate
signed by, or in the name of the Corporation by, any two authorized officers of the Corporation (it being understood that each of
the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the General Counsel, any Assistant
General Counsel, the Treasurer, any Assistant Treasurer, the Secretary, and any Assistant Secretary of the Corporation shall be an
authorized officer for such purpose), certifying the number and class of shares of stock of the Corporation owned by such holder.
Any or all of the signatures on the certificate may be a facsimile. The Board of Directors shall have the power to appoint one or
more transfer agents and/or registrars for the transfer or registration of certificates of stock of any class, and may require stock
certificates to be countersigned or registered by one or more of such transfer agents and/or registrars. The name of the holder of
record of the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the
Corporation. With respect to all uncertificated shares, the name of the holder of record of such uncertificated shares represented,
with the number of such shares and the date of issue, shall be entered on the books of the Corporation.
SECTION 5.02 Shares Without
Certificates. So long as the Board of Directors chooses to issue shares of stock without certificates in accordance with Section 5.01,
the Corporation, if required by the DGCL, shall, within a reasonable time after the issue or transfer of shares without certificates,
send the stockholder a statement of the information required by the DGCL. The Corporation may adopt a system of issuance, recordation
and transfer of its shares of stock by electronic or other means not involving the issuance of certificates, provided that the use of
such system by the Corporation is permitted in accordance with applicable law.
SECTION 5.03 Transfer
of Shares. Shares of stock of the Corporation shall be transferable upon its books by the holders thereof, in person or by their duly
authorized attorneys or legal representatives, upon surrender to the Corporation by delivery thereof (to the extent evidenced by a physical
stock certificate) to the person in charge of the stock and transfer books and ledgers. Certificates representing such shares, if any,
shall be cancelled and new certificates, if the shares are to be certificated, shall thereupon be issued. Shares of capital stock of the
Corporation that are not represented by a certificate shall be transferred in accordance with any procedures adopted by the Corporation
or its agent and applicable law. A record shall be made of each transfer. Whenever any transfer of shares shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented, both the
transferor and transferee request the Corporation to do so. The Corporation shall have power and authority to make such rules and regulations
as it may deem necessary or proper concerning the issue, transfer and registration of certificates for shares of stock of the Corporation.
SECTION 5.04 Lost, Stolen,
Destroyed or Mutilated Certificates. A new certificate of stock or uncertificated shares may be issued in the place of any certificate
previously issued by the Corporation alleged to have been lost, stolen or destroyed, and the Corporation may, in its discretion, require
the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to give the Corporation a bond, in such sum
as the Corporation may direct, in order to indemnify the Corporation against any claims that may be made against it in connection therewith.
A new certificate or uncertificated shares of stock may be issued in the place of any certificate previously issued by the Corporation
that has become mutilated upon the surrender by such owner of such mutilated certificate and, if required by the Corporation, the posting
of a bond by such owner in an amount sufficient to indemnify the Corporation against any claim that may be made against it in connection
therewith.
SECTION 5.05 List of
Stockholders Entitled To Vote. The Corporation shall prepare, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for
determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the
stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order, and
showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (a) on a
reasonably accessible electronic network; provided that the information required to gain access to such list is provided with
the notice of meeting or (b) during ordinary business hours at the principal place of business of the Corporation. In the event that
the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure
that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of
stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time
thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine
the list of stockholders required by this Section 5.05 or to vote in person or by proxy at any meeting of stockholders.
SECTION 5.06 Fixing Date
for Determination of Stockholders of Record.
(A) In
order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof,
the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record date shall, unless otherwise required by law, not be more than sixty (60)
nor less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record
date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes
such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record
date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that
the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such
case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that
fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(B) In
order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date shall not be more than sixty (60) days prior to such
action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution relating thereto.
(C) Unless
otherwise restricted by the Certificate of Incorporation, in order that the Corporation may determine the stockholders entitled to express
consent to corporate action without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten
(10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date for
determining stockholders entitled to express consent to corporate action without a meeting is fixed by the Board of Directors, (i) when
no prior action of the Board of Directors is required by law, the record date for such purpose shall be the first date on which a signed
consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, and
(ii) if prior action by the Board of Directors is required by law, the record date for such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution taking such prior action.
SECTION 5.07 Registered
Stockholders. Prior to the surrender to the Corporation of the certificate or certificates for a share or shares of stock or notification
to the Corporation of the transfer of uncertificated shares with a request to record the transfer of such share or shares, the Corporation
may treat the registered owner of such share or shares as the person entitled to receive dividends, to vote, to receive notifications
and otherwise to exercise all the rights and powers of an owner of such share or shares. To the fullest extent permitted by law, the Corporation
shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof.
ARTICLE VI
Notice and Waiver of Notice
SECTION 6.01 Notice.
If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such
stockholder’s address as it appears on the records of the Corporation. Other forms of notice shall be deemed given as provided in
the DGCL. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may
be given by electronic transmission in the manner provided in Section 232 of the DGCL.
SECTION 6.02 Waiver of
Notice. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person,
whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required
to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any
meeting (in person or by remote communication) shall constitute waiver of notice except attendance for the express purpose of objecting
at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
ARTICLE VII
Indemnification
SECTION 7.01 Right to
Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason
of the fact that he or she is or was a director or an officer of the Corporation, or while serving as a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”),
whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, agent or trustee or in
any other capacity while serving as a director, officer, employee, agent or trustee, shall be indemnified and held harmless by the Corporation
to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment,
only to the fullest extent permitted by law), against all expense, liability and loss (including attorneys’ fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) actually and reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section 7.03 with respect to proceedings to enforce rights to
indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding
(or part thereof) was authorized by the Board of Directors. Any reference to an officer of the Corporation in this Article VII shall be
deemed to refer exclusively to the Chairman of the Board of Directors, Chief Executive Officer, President, Chief Financial Officer, General
Counsel, Treasurer, and Secretary of the Corporation appointed pursuant to Article IV of these Bylaws, and to any Vice President, Assistant
Secretary, Assistant Treasurer, Assistant General Counsel or other officer of the Corporation appointed by the Board of Directors pursuant
to Article IV of these Bylaws, including, without limitation, any “executive officer” or “Section 16 officer,”
and any reference to an officer of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
shall be deemed to refer exclusively to an officer appointed by the board of directors or equivalent governing body of such other entity
pursuant to the certificate of incorporation and bylaws or equivalent organizational documents of such other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise. The fact that any person who is or was an employee of the Corporation
or an employee of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, but not an officer
thereof as described in the preceding sentence, has been given or has used the title of “Vice President” or any other title
that could be construed to suggest or imply that such person is or may be such an officer of the Corporation or of such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise shall not result in such person being constituted as, or
being deemed to be, such an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise for purposes of this Article VII.
SECTION
7.02 Right to Advancement of Expenses. In addition to the right to indemnification
conferred in Section 7.01, an indemnitee shall also have the right to be paid by the Corporation the reasonable expenses (including
attorney’s fees) incurred by the indemnitee in appearing at, participating in or defending any such proceeding in
advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or
advancement of expenses under this Article VII (which shall be governed by Section 7.03) (hereinafter an “advancement of
expenses”); provided, however, that, if the DGCL requires or in the case of an advance made in a proceeding
brought to establish or enforce a right to indemnification or advancement, an advancement of expenses incurred by an indemnitee in
his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered
by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely upon delivery to the
Corporation of a signed, written undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further
right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified or
entitled to advancement of expenses under Sections 7.01 and 7.02 or otherwise. Notwithstanding the foregoing, the Corporation shall
have no obligation to make any payment provided in this Section 7.02 in the event the Board of Directors determines, in good faith,
that the indemnitee seeking advancement of expenses has engaged in fraud or criminal conduct relating to the subject matter of the
proceeding in which the indemnitee is seeking advancement of expenses.
SECTION 7.03 Right of
Indemnitee to Bring Suit. If a claim under Section 7.01 or 7.02 is not paid in full by the Corporation within (i) 60 days after a
written claim for indemnification has been received by the Corporation or (ii) 20 days after a claim for an advancement of expenses has
been received by the Corporation, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim or to obtain advancement of expenses, as applicable. To the fullest extent permitted by law, if the indemnitee is successful
in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit
brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right
to an advancement of expenses) it shall be a defense that, and (ii) any suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including
by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation
(including by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders)
that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to
such advancement of expenses, under this Article VII or otherwise shall be on the Corporation.
SECTION
7.04 Indemnification Not Exclusive.
(A) The
provision of indemnification to or the advancement of expenses and costs to any indemnitee under this Article VII, or the entitlement
of any indemnitee to indemnification or advancement of expenses and costs under this Article VII, shall not limit or restrict in any way
the power of the Corporation to indemnify or advance expenses and costs to such indemnitee in any other way permitted by law or be deemed
exclusive of, or invalidate, any right to which any indemnitee seeking indemnification or advancement of expenses and costs may be entitled
under any law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such indemnitee’s capacity
as an officer, director, employee or agent of the Corporation and as to action in any other capacity.
(B) Given
that certain jointly indemnifiable claims (as defined below) may arise due to the service of the indemnitee as a director and/or officer
of the Corporation and as a director, officer, employee or agent of one or more of the indemnitee-related entities (as defined below),
the Corporation shall be fully and primarily responsible for the payment to the indemnitee in respect of indemnification or advancement
of expenses in connection with any such jointly indemnifiable claims, pursuant to and in accordance with the terms of this Article VII,
irrespective of any right of recovery the indemnitee may have from the indemnitee-related entities. Under no circumstance shall the Corporation
be entitled to any right of subrogation or contribution by the indemnitee-related entities and no right of advancement or recovery the
indemnitee may have from the indemnitee-related entities shall reduce or otherwise alter the rights of the indemnitee or the obligations
of the Corporation hereunder. In the event that any of the indemnitee-related entities shall make any payment to the indemnitee in respect
of indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the indemnitee-related entity making such
payment shall be subrogated to the extent of such payment to all of the rights of recovery of the indemnitee against the Corporation,
and the indemnitee shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such
rights, including the execution of such documents as may be necessary to enable the indemnitee-related entities effectively to bring suit
to enforce such rights. Each of the indemnitee-related entities shall be third-party beneficiaries with respect to this Section 7.04(B)
of Article VII, entitled to enforce this Section 7.04(B) of Article VII.
For purposes of this Section
7.04(B) of Article VII, the following terms shall have the following meanings:
(1) The term “indemnitee-related
entities” means any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise (other than the Corporation or any other corporation, limited liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise for which the indemnitee has agreed, on behalf of the Corporation or at the Corporation’s request,
to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an indemnitee
may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the Corporation may also have
an indemnification or advancement obligation (other than as a result of obligations under an insurance policy).
(2)
The term “jointly indemnifiable claims” shall be broadly construed and shall include, without limitation, any action,
suit or proceeding for which the indemnitee shall be entitled to indemnification or advancement of expenses from both the indemnitee-related
entities and the Corporation pursuant to Delaware law, any agreement or certificate of incorporation, bylaws, partnership agreement, operating
agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Corporation or the
indemnitee-related entities, as applicable.
SECTION 7.05 Nature
of Rights. The rights conferred upon indemnitees in this Article VII shall be contract rights and such rights shall continue as to
an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s heirs, executors and
administrators. Any amendment, alteration or repeal of this Article VII that adversely affects any right of an indemnitee or its successors
shall be prospective only and shall not limit, eliminate, or impair any such right with respect to any proceeding involving any occurrence
or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal.
SECTION
7.06 Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss
under the DGCL.
SECTION
7.07 Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article VII with respect to the indemnification and advancement of expenses of directors
and officers of the Corporation.
SECTION
7.08 Assumption of Defense. Promptly after receipt by an indemnitee of notice of any intention or threat to commence an action,
suit or proceeding or notice of the commencement of any action, suit or proceeding, the indemnitee will, if a claim in respect thereof
is to be made against the Corporation, promptly notify the Corporation in writing of the same. With respect to any action, suit or proceeding
of which the Corporation is so notified, the Corporation shall, subject to the last two sentences of this Section 7.08, be entitled to
assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to the indemnitee, upon the delivery to the
indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by the indemnitee and the
retention of such counsel by the Corporation, the Corporation will not be liable to the indemnitee under these Bylaws for any subsequently
incurred fees of separate counsel engaged by the indemnitee with respect to the same action, suit or proceeding unless the employment
of separate counsel by the indemnitee has been previously authorized in writing by the Corporation, which authorization will not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing, if the indemnitee, based on the advice of his or her counsel, shall have
reasonably concluded (with written notice being given to the Corporation setting forth the basis for such conclusion) that, in the conduct
of any such defense, there is an actual or potential conflict of interest or position (other than such potential conflicts that are objectively
immaterial or remote) between the Corporation and the indemnitee with respect to a significant issue, then the Corporation will not be
entitled, without the written consent of the indemnitee, to assume such defense.
In addition, the Corporation will not be entitled, without the written consent of the indemnitee, to assume the defense of any claim brought
by or in the right of the Corporation.
ARTICLE VIII
Miscellaneous
SECTION 8.01 Electronic
Transmission. For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving
the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including
one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved, and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
SECTION 8.02 Corporate
Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used
by the Chief Financial Officer, Treasurer, or by an Assistant Secretary or Assistant Treasurer.
SECTION 8.03 Fiscal Year.
The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the Board of Directors. Unless otherwise fixed by
the Board of Directors, the fiscal year of the Corporation shall begin on the Saturday immediately following the last Friday in December
and end on the last Friday of the succeeding December.
SECTION 8.04 Section Headings.
Section headings in these Bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise
construing any provision herein.
SECTION 8.05 Inconsistent
Provisions. In the event that any provision of these Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation,
the DGCL or any other applicable law, such provision of these Bylaws shall not be given any effect to the extent of such inconsistency
but shall otherwise be given full force and effect.
ARTICLE IX
Amendments
SECTION
9.01 Amendments. The Board of Directors is authorized to make, repeal, alter, amend and rescind, in whole or in part,
these Bylaws without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware or
the Certificate of Incorporation. Notwithstanding any other provisions of these Bylaws or any provision of law which might otherwise
permit a lesser vote of the stockholders, at any time when H&F beneficially owns, in the aggregate, less than 40% of the then
outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, in addition to any
vote of the holders of any class or series of capital stock of the Corporation required by the Certificate of Incorporation
(including any certificate of designation relating to any series of Preferred Stock (as defined in the Certificate of
Incorporation)), these Bylaws or applicable law, the affirmative vote of the holders of at least 66 2/3% in voting power of all the
then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required
in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of these
Bylaws (including, without limitation, this Section 9.01) or to adopt any provision inconsistent herewith.
[Remainder
of page intentionally left blank]
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AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
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[Reverse Side of Stock Certificate]
The Corporation will furnish to any stockholder, upon request and without charge, a full statement of the designations,
relative rights, preferences and limitations of the shares of each class and series authorized to be issued, so far as the same have been
determined, and of the authority, if any, of the Board to divide the shares into classes or series and to determine and change the
relative rights, preferences and limitations of any class or series. Such request may be made to the Secretary of the Corporation or to
the Transfer Agent named on this certificate.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ____ Custodian ______
(Cust) (Minor)
TEN ENT - as tenant by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
under Uniform Gifts to Minors Act
___________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
____________________________________________
_____________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE)
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
________________________________________________________________________ Shares of the Common Stock represented
by the within Certificate, and do hereby irrevocably constitute and appoint
_____________________________________________________________________________________
Attorney, to transfer the said stock registered on the books of the within-named Corporation with full power of substitution in the
premises.
Dated ____________________ ___________________________________________
SIGNATURE(S) GUARANTEED: ___________________________________________
Notice: The signature(s) to this assignment must correspond
with the name(s) as written upon the face of the certificate in
every particular, without alteration or enlargement or any
change whatever.
_______________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO RULE 17Ad-15 UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
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Exhibit 5.1
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Simpson
Thacher & Bartlett llp
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2475
hanover street
palo
alto, ca 94304
___________
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telephone:
+1-650-251-5000
facsimile:
+1-650-251-5002
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Direct
Dial Number
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E-mail
Address
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, 2021
Snap One Holdings Corp.
1800 Continental Boulevard, Suite 200
Charlotte, North Carolina 28273
Ladies and Gentlemen:
We have acted as counsel
to Snap One Holdings Corp., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-1
(the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Act”), relating to (i) the issuance by the Company of an aggregate
of up to shares of common stock, par value $0.01 per share (“Common Stock”) (together with any additional shares of Common
Stock that may be issued by the Company pursuant to Rule 462(b) (as prescribed by the Commission pursuant to the Act) in connection
with the offering described in the Registration Statement, the “Company Shares”), and (ii) the sale of up to shares
of Common Stock by certain selling stockholders identified in the Registration Statement (together with any additional shares of Common
Stock that may be sold by such selling stockholders pursuant to Rule 462(b) (as prescribed by the Commission pursuant to the
Act), the “Selling Stockholder Shares”).
We have examined the Registration
Statement, a form of the share certificate and a form of the Amended and Restated Certificate of Incorporation of the Company (the “Amended
Charter”), each of which have been filed with the Commission as an exhibit to the Registration Statement. In addition, we have
examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed copies, of such records, agreements,
documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives
of the Company and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter
set forth.
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New
York
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BEIJING
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HONG
KONG
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Houston
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LONDON
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Los
Angeles
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SÃO
PAULO
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TOKYO
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Washington,
D.C.
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Snap One Holdings
Corp.
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-2-
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,
2021
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In rendering the opinions
set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed
copies and the authenticity of the originals of such latter documents.
Based upon the
foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that (1)
(a) when the Amended Charter has been duly filed with the Secretary of State of the State of Delaware, (b) when the pricing
committee of the Board of Directors of the Company (the “Board”) has taken all action necessary to approve the sale
price of the Company Shares and (c) upon payment and delivery in accordance with the applicable definitive underwriting agreement
approved by the Board, the Company Shares will be validly issued, fully paid and nonassessable and (2) the Selling Stockholder
Shares are validly issued, fully paid and nonassessable.
We do not express any opinion
herein concerning any law other than the Delaware General Corporation Law.
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Snap One Holdings
Corp.
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-3-
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,
2021
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We hereby consent to the
filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal
Matters” in the prospectus included in the Registration Statement.
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Very truly yours,
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SIMPSON THACHER & BARTLETT LLP
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Exhibit 10.1
Final
Form
SNAP ONE HOLDINGS CORP.
STOCKHOLDERS AGREEMENT
Dated as of [•], 2021
TABLE
OF CONTENTS
Page
Article I
DEFINITIONS
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Section 1.1.
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Definitions
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1
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Section 1.2.
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Definitions Cross References
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6
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Section 1.3.
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General Interpretive Principles
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7
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Article II
REPRESENTATIONS
AND WARRANTIES
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Section 2.1.
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Representations and Warranties of the Parties
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7
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Article III
GOVERNANCE
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Section 3.1.
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Board of Directors
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8
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Section 3.2.
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Sharing of Information
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9
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Article IV
TRANSFER
RESTRICTIONS
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Section 4.1.
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General Restrictions on Transfers
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10
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Section 4.2.
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Permitted Transfers
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11
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Section 4.3.
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Transfer Restriction Period
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11
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Article V
REGISTRATION
RIGHTS
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Section 5.1.
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Certain Definitions
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12
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Section 5.2.
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Shelf Registration
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13
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Section 5.3.
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Demand Registration
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18
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Section 5.4.
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Piggyback Registration
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19
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Section 5.5.
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Expenses of Registration
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21
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Section 5.6.
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Obligations of the Company
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21
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Section 5.7.
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Indemnification
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23
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Section 5.8.
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Information by Holder
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25
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Section 5.9.
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Transfer of Registration Rights
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25
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Section 5.10.
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Delay of Registration
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25
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Section 5.11.
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Limitations on Subsequent Registration Rights
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25
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Section 5.12.
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Rule 144 Reporting
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25
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Section 5.13.
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“Market Stand Off” Agreement
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26
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Section 5.14.
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Termination of Registration Rights
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26
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Section 5.15.
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Other Obligations
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26
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Article VI
ADDITIONAL
AGREEMENTS OF THE PARTIES
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Section 6.1.
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Further Assurances
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27
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Section 6.2.
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Other Businesses; Waiver of Certain Duties
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27
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Section 6.3.
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Legends on Securities
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28
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Section 6.4.
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Reimbursement
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28
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Article VII
ADDITIONAL
PARTIES
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Section 7.1.
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Additional Parties
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29
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Article VIII
INDEMNIFICATION
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Section 8.1.
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Indemnification
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29
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Section 8.2.
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Insurance
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31
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Article IX
MISCELLANEOUS
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Section 9.1.
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Entire Agreement; Third Party Beneficiaries
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31
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Section 9.2.
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Specific Performance
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31
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Section 9.3.
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Governing Law
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32
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Section 9.4.
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Submission to Jurisdiction
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32
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Section 9.5.
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Obligations
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32
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Section 9.6.
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Consents, Approvals and Actions
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32
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Section 9.7.
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Amendments
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33
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Section 9.8.
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Assignment of Rights by the H&F Stockholders
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34
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Section 9.9.
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Subsequent Acquisition of Securities
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34
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Section 9.10.
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Binding Effect
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34
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Section 9.11.
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Termination; Effect of Termination
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34
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Section 9.12.
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Notices
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34
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Section 9.13.
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Severability
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35
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Section 9.14.
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Aggregation of Securities
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35
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Section 9.15.
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No Third Party Liabilities
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35
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Section 9.16.
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Independent Nature of Stockholders’ Obligations and Rights
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36
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Section 9.17.
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Effectiveness
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36
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Section 9.18.
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Counterparts; Electronic Delivery
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36
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Section 9.19.
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Logo
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37
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Section 9.20.
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Waiver of Jury Trial
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37
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Section 9.21.
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Reinstatement of Terms of Unitholders Agreement
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37
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EXHIBITS
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Exhibit A
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Joinder Agreement
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Exhibit B
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Consent of Spouse
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Exhibit C
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Specified Stockholders
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Exhibit D
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Specified Management Stockholders
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SNAP ONE HOLDINGS CORP.
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its terms, this “Agreement”) is dated as of
[•], 2021, and is entered into by and among:
(i) the
Company (as defined below);
(ii) (a) Hellman &
Friedman Capital Partners VIII, L.P., a Cayman Islands exempted limited partnership (“HFCP VIII”), (b) Hellman &
Friedman Capital Partners VIII (Parallel), L.P., a Cayman Islands exempted limited partnership (“VIII Parallel”), (c) HFCP
VIII (Parallel-A), L.P., a Delaware limited partnership (“Parallel-A”), (d) Hellman & Friedman Executives
VIII, L.P., a Cayman Islands exempted limited partnership (“Executives VIII”), (e) H&F Associates VIII, L.P.,
a Cayman Islands exempted limited partnership (“Associates VIII”) and (f) H&F Copper Holdings VIII, L.P.,
a Delaware limited Partnership (“Copper VIII” and together with HFCP VIII, VIII Parallel, Parallel-A, Executives VIII
and Associates VIII, the “Initial H&F Stockholders”);
(iii) the
Employee Stockholders (as defined below) that have executed and delivered a signature page to this Agreement or a Joinder Agreement
(as defined below); and
(iv) any
other Person (as defined below) who becomes a party hereto pursuant to Article VII.
WHEREAS, in accordance with the terms of the Unitholders
Agreement (as defined below) and the Partnership Agreement (as defined below), shares of Common Stock (as defined below) will be distributed
to the holders of outstanding interests in the Partnership (as defined below) and the Partnership will subsequently be dissolved;
WHEREAS, the Company intends to consummate an Initial
Public Offering (as defined below) of shares of Common Stock and enter into the Underwriting Agreement (as defined below) in connection
therewith; and
WHEREAS, in connection with such events, the parties
hereto desire to provide for certain governance rights and other matters upon the effectiveness of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein, the parties hereto mutually agree as follows:
Article I
DEFINITIONS
Section 1.1. Definitions.
As used in this Agreement, the following terms shall have the meanings set forth below:
“Adverse Disclosure” means public
disclosure of material non-public information which, in the Board’s good faith judgment, after consultation with outside counsel
to the Company, (i) would be required to be made in any report or Registration Statement filed with the SEC by the Company so that
such report or Registration Statement would not be materially misleading; (ii) would not be required to be made at such time but
for the filing, effectiveness or continued use of such report or Registration Statement; and (iii) the Company has a bona fide
business purpose for not disclosing publicly.
“Affiliate” means, with respect
to any Person, any other Person that controls, is controlled by, or is under common control with such Person. The term “control,”
as used in this definition, means the power to direct or cause the direction of the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise. “Controlled” and “controlling”
have meanings correlative to the foregoing. Notwithstanding the foregoing, (i) the Company, its Subsidiaries and its other controlled
Affiliates shall not be considered Affiliates of any Stockholder or any of such Stockholder’s Affiliates (other than the Company,
its Subsidiaries and its other controlled Affiliates) (and vice versa), and (ii) none of the H&F Stockholders shall be considered
Affiliates of any portfolio company in which the H&F Stockholders or any of their investment fund Affiliates have made a debt or equity
investment (and vice versa).
“Applicable Employee” means (i) with
respect to any Employee Stockholder that is a Service Provider, such Service Provider and (ii) with respect to any Employee Stockholder
that is not a Service Provider, the Service Provider with respect to whom such Employee Stockholder is (or is permitted to be) a Permitted
Assignee.
“Beneficial ownership” and “beneficially
own” and similar terms have the meaning set forth in Rule 13d-3 under the Exchange Act; provided, however,
that (i) no Stockholder shall be deemed to beneficially own any Securities held by any other Stockholder solely by virtue of the
provisions of this Agreement (other than this definition) and (ii) with respect to any Securities held by a Stockholder that are
exercisable for, convertible into or exchangeable for Shares upon delivery of consideration to the Company or any of its Subsidiaries,
such Shares shall not be deemed to be beneficially owned by such Stockholder unless, until and to the extent such Securities have been
exercised, converted or exchanged and such consideration has been delivered by such Stockholder to the Company or such Subsidiary.
“Board” means the Board of Directors
of the Company.
“Business Day” means any day,
other than a Saturday, Sunday or one on which banks are authorized by law to be closed in New York City, New York.
“Common Stock” means the Company’s
common stock, par value $0.01 per share.
“Company” means Snap One Holdings
Corp., a Delaware corporation (including any successors or assigns thereof).
“Consent of Spouse” means a consent
of spouse substantially in the form of Exhibit B attached hereto or otherwise acceptable to the Company or the Board.
“Controlled Entity” means any
other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise controlled
by the Company.
“Covered Person” means (i) each
Director, officer or liquidating trustee, in each case in his, her or its capacity as such, (ii) any Person of which a Director is
an officer, director, shareholder, partner, member, employee, representative or agent, or (iii) any Affiliate, officer, director,
manager, trustee, shareholder, partner, member, beneficiary, representative or agent of any of the foregoing, whether or not such Person
continues to have the applicable status referred to in such clauses.
“Director” means an individual
elected or appointed to, or otherwise serves on, the Board.
“Employee Stockholder” means (i) each
Stockholder that is a Service Provider for so long as he or she holds Securities, (ii) any other individual who (a) holds Securities,
(b) has become a party to this Agreement pursuant to Article IX and (c) is a Service Provider at the time he or
she becomes a party to this Agreement and (iii) any Permitted Assignee of any of the Stockholders identified in the immediately foregoing
clauses (i) and (ii) that beneficially owns and holds of record, Securities.
“Employee Stockholders Approval”
means the affirmative approval or consent of the Employee Stockholders holding a majority of the outstanding Shares held by all Employee
Stockholders.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated pursuant thereto.
“FINRA” means the Financial Industry
Regulatory Authority.
“H&F Stockholders” means the
Initial H&F Stockholders that hold Securities and any of their Affiliates or successors that hold Securities and have become parties
to this Agreement pursuant to Article IX.
“Initial Public Offering” means
the consummation of the initial underwritten public offering of Shares (or any other Securities) that is registered under the Securities
Act.
“Joinder Agreement” means a joinder
substantially in the form of Exhibit A attached hereto or otherwise acceptable to the Company, the Board and the H&F Stockholders.
“Necessary Action” means, with
respect to a specified result, all actions (to the extent such actions are permitted by applicable law) necessary to cause such specified
result, including (i) voting or providing a written consent or proxy with respect to a Stockholder’s Shares (or any other voting
Securities, if any) whether at any annual or special meeting, by written consent or otherwise, (ii) causing the adoption of stockholders’
resolutions and amendments to the certificate of incorporation, bylaws or equivalent governing document, (iii) causing members of
the Board (to the extent such members were nominated or designated by the Person obligated to undertake the Necessary Action, and subject
to any fiduciary duties that such members may have as directors) to act in a certain manner or causing them to be removed in the event
they do not act in such a manner, (iv) executing agreements and instruments necessary to achieve such specified result and (v) making,
or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that
are required to achieve such specified result.
“Non-H&F Stockholders” means
each of the Stockholders other than the H&F Stockholders.
“Partnership” means Crackle Holdings,
L.P., a Delaware limited partnership.
“Partnership Agreement” means
the Amended and Restated Limited Partnership Agreement of the Partnership, dated as of August 4, 2017, as amended, restated, supplemented
or otherwise modified from time to time in accordance with its terms.
“Permitted Assignee” means:
(i) with
respect to an Employee Stockholder, (x) the Applicable Employee with respect to such Employee Stockholder and/or (y) a transferee
by testamentary or intestate disposition or any trust, limited partnership or other legal entity the beneficiary of which is one or more
members of the immediate family of the Applicable Employee with respect to such Employee Stockholder (consisting of his or her spouse,
ex-spouse, children, step-children, children-in-law, parents, step-parents or parents-in-law, including adoptive relationships, or their
respective lineal descendants) and which is controlled by such Applicable Employee (an entity shall be deemed to be controlled by an Applicable
Employee if such Applicable Employee has the power to direct the disposition and voting of the Securities transferred to such trust or
other legal entity); provided, however, that, during the period that any such trust or other legal entity holds any right,
title or interest in any Securities, no Person other than such Applicable Employee or one or more of such Applicable Employee’s
immediate family members may be or may become beneficiaries, stockholders, limited or general partners or members thereof;
(ii) in
the case of any H&F Stockholder, any of its respective (x) Affiliates or (y) partners, members or other investors of any
H&F Stockholder that become parties to this Agreement in connection with a distribution prior to or following an Initial Public Offering;
and
(iii) with
respect to any other Stockholder, an Affiliate of such Stockholder so long as such Affiliate is either (x) wholly owned by such Stockholder
or (y) directly or indirectly wholly owns such Stockholder.
“Person” means an individual,
any general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint stock company, joint
venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever nature, and shall
include any successor (by merger or otherwise) of such entity.
“Registration Expenses” means
any and all expenses incident to the performance by the Company of its obligations under Article V or of a Registration or
other Transfer, including (i) all SEC or stock exchange registration and filing fees (including, if applicable, the fees and expenses
of any “qualified independent underwriter,” as such term is defined in Rule 5121 of FINRA (or any successor provision),
and of its counsel), (ii) all fees and expenses of complying with securities or “blue sky” laws (including fees and disbursements
of counsel for the underwriters in connection with “blue sky” qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) all fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange and all rating agency fees, (v) the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits and/or comfort letters required by or incident to such
performance and compliance, (vi) any fees and disbursements of underwriters customarily paid by the issuers or sellers of securities,
including liability insurance if the Company so desires or if the underwriters so require, and the reasonable fees and expenses of any
special experts retained in connection with the requested registration, but excluding underwriting discounts and commissions and transfer
taxes, if any, (vii) the fees and out-of-pocket expenses of not more than one law firm (as selected by the H&F Stockholders and/or
the holders of a majority of the Registrable Securities included in the applicable registration or other Transfer) incurred by all the
Holders in connection with the applicable registration or other Transfer, (viii) the costs and expenses of the Company relating to
analyst and investor presentations or any “road show” undertaken in connection with the registration and/or marketing of the
Registrable Securities (including the reasonable out-of-pocket expenses of the Holders) and (ix) any other fees and disbursements
customarily paid by the issuers of securities.
“SEC” means the U.S. Securities
and Exchange Commission or any successor agency.
“SEC Restricted Securities” means
all Securities other than (i) Securities, the offer and sale of which have been registered under a registration statement pursuant
to the Securities Act and sold thereunder, (ii) Securities, with respect to which a sale or other disposition has been made in reliance
on and in accordance with Rule 144 (or any successor provision) under the Securities Act, or (iii) Securities, with respect
to which the holder thereof shall have delivered to the Company (a) an opinion of counsel in form and substance reasonably satisfactory
to the Company, delivered by counsel reasonably satisfactory to the Company, (b) a “no action” letter from the SEC, or
(c) such other evidence as may be reasonably satisfactory to the Company, in each case to the effect that subsequent transfers of
such Securities may be effected without registration under the Securities Act.
“Securities” means, as of the
relevant time of determination (without any double counting), Shares and any other equity securities (and any securities convertible into
or exercisable or exchangeable for Shares or other equity securities) of the Company or any of its Subsidiaries.
“Securities Act” means the Securities
Act of 1933, as amended from time to time, and the rules and regulations promulgated pursuant thereto.
“Service Provider” means any officer,
employee, director, consultant and/or other individual service provider of the Company or its Subsidiaries.
“Share Equivalents” means, as
of the relevant time of determination (without any double counting), (i) Shares and (ii) Shares issuable upon exercise, conversion
or exchange of any Security that is currently exercisable for, convertible into or exchangeable for, as of any such date of determination,
Shares without payment to the Company of any additional consideration.
“Shares” means, as of the relevant
time of determination (without any double counting), any shares of Common Stock and any other equity securities of the Company received
in respect of such Common Stock in connection with any combination, recapitalization, merger, consolidation or other reorganization or
by way of stock split, combination or reclassification, stock dividend or other distribution.
“Specified Stockholders” means
each of the Stockholders set forth on Exhibit C attached hereto and their respective Permitted Assignees that hold Securities
from time to time.
“Stockholders” means each of the
Persons specified in the preamble that hold Securities and each additional Person who becomes a party to this Agreement pursuant to Article IX
hereof as a holder of Securities.
“Subsidiary” means, with respect
to any Person, any entity of which (i) a majority of the total voting power of shares of stock or equivalent ownership interests
entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees or other members
of the applicable governing body thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (ii) if no such governing body exists at such entity, a majority
of the total voting power of shares of stock or equivalent ownership interests of the entity is at the time owned or controlled, directly
or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity
if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing member or general partner of such limited liability company, partnership, association
or other business entity.
“Underwriting Agreement” means
an underwriting agreement among the Company, Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC and the other investment banks
party thereto with respect to an underwritten initial Public Offering.
“Unitholders Agreement” means
the Unitholders Agreement, dated as of August 4, 2017, by and among the Partnership, Crackle Holdings GP, LLC as general partner
and the other Persons from time to time parties thereto, as may be amended, supplemented, restated or modified from time to time in accordance
with its terms.
Section 1.2. Definitions
Cross References.
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Automatic Shelf Registration Statement
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Section 5.1(a)
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Claims
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Section 8.1(a)
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Confidential Information
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Section 3.2
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Demand Delay
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Section 5.3(a)(ii)
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Demand Period
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Section 5.3(c)
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Demand Registration
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Section 5.3(a)
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Eligible Take-Down Holders
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Section 5.1(b)
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H&F Initiating Holders
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Section 5.1(c)
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H&F Nominees
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Section 3.1(b)(i)
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Holder
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Section 5.1(d)
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Indemnification Sources
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Section 8.1(b)
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Indemnified Party
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Section 5.7(c)
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Indemnifying Party
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Section 5.7(c)
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Indemnitee
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Section 8.1(a)
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Indemnitee-Related Entities
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Section 8.1(b)
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Jointly Indemnifiable Claims
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Section 8.1(b)
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Majority Shelf Holders
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Section 5.2(b)
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Marketed
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Section 5.1(e)
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Marketed Underwritten Shelf Take-Down
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Section 5.2(d)(ii)
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Prospectus
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Section 5.1(f)
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Registrable Securities
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Section 5.1(h)
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Registration Statement
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Section 5.1(g)
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Representatives
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Section 3.2
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Restricted Shelf Take-Down
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Section 5.2(d)(iii)(A)
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Restricted Shelf Take-Down Notice
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Section 5.2(d)(iii)(A)
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Restricted Take-Down Selling Holders
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Section 5.2(d)(iii)(A)
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Shelf Holder
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Section 5.2(a)
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Shelf Registration Notice
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Section 5.2(a)
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Shelf Registration Statement
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Section 5.1(i)
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Shelf Suspension
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Section 5.2(c)
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Shelf Take-Down Initiating Holder
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Section 5.2(d)(i)
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Take-Down Participation Notice
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Section 5.2(d)(iii)(B)
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Take-Down Tagging Holders
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Section 5.2(d)(iii)(A)
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Third Party Holder
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Section 5.1(k)
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Third Party Shelf Holder
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Section 5.2(a)
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Transfer
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Section 4.1(a)
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Transfer Restriction Period
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Section 4.3(a)
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Underwritten Shelf Take-Down
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Section 5.2(d)(i)(A)
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Underwritten Shelf Take-Down Notice
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Section 5.2(d)(i)(A)
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Well-Known Seasoned Issuer
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Section 5.1(l)
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Section 1.3. General
Interpretive Principles. The name assigned to this Agreement and the section captions used herein are for convenience of reference
only and shall not be construed to affect the meaning, construction or effect hereof. Unless otherwise specified, the terms “hereof,”
“herein” and similar terms refer to this Agreement as a whole, and references herein to Articles or Sections refer to Articles
or Sections of this Agreement. For purposes of this Agreement, the words, “include,” “includes” and “including,”
when used herein, shall not be limiting and shall be deemed in each case to be followed by the words “without limitation.”
The terms “dollars” and “$” shall mean United States dollars. The use of “Affiliates” and “Subsidiaries”
shall be deemed to be followed by the words “as such entities exist as of the relevant date of determination.” Any reference
to “days” shall mean calendar days unless such reference is to a “Business Day”. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement
will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party
because of the authorship of any provision of this Agreement.
Article II
REPRESENTATIONS
AND WARRANTIES
Section 2.1. Representations
and Warranties of the Parties. Each of the parties hereto hereby represents and warrants to each of the other parties, as of the
date hereof (and in respect of Persons who become a party to this Agreement after the date hereof, such party hereby represents and warrants
to each of the other parties on the date of its, his or her execution of this Agreement or a Joinder Agreement) as follows:
(a) Such
party, to the extent applicable, is duly organized or incorporated, validly existing and in good standing under the laws of the jurisdiction
of its organization or incorporation and has all requisite power and authority to conduct its business as it is now being conducted and
is proposed to be conducted.
(b) Such
party has the full power, authority and legal right to execute, deliver and perform this Agreement. The execution, delivery and performance
of this Agreement have been duly authorized by all necessary action, corporate or otherwise, of such party. This Agreement has been duly
executed and delivered by such party and constitutes its, his or her legal, valid and binding obligation, enforceable against it, him
or her in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally.
(c) The
execution and delivery by such party of this Agreement and the performance by such party of its, his or her obligations hereunder by such
party does not and will not violate (i) in the case of parties who are not individuals, any provision of its by-laws, charter, articles
of association, partnership agreement or other similar document, (ii) any provision of any material agreement to which it, he or
she is a party or by which it, he or she is bound or (iii) any law, rule, regulation, judgment, order or decree to which it, he or
she is subject.
(d) No
consent, waiver, approval, authorization, exemption, registration, license or declaration is required to be made or obtained by such party
in connection with the execution, delivery or enforceability of this Agreement or the consummation of any of the transactions contemplated
herein.
(e) Such
party is not currently in violation of any law, rule, regulation, judgment, order or decree, which violation could reasonably be expected
at any time to have a material adverse effect upon such party’s ability to enter into this Agreement or to perform its, his or her
obligations hereunder.
(f) There
is no pending legal action, suit or proceeding that would materially and adversely affect the ability of such party to enter into this
Agreement or to perform its, his or her obligations hereunder.
(g) To
the extent such party is an Employee Stockholder or a natural person, if such Person is resident in a community property state, such Person’s
spouse, if any, has duly executed, or solely if consented to in advance by the Company, will duly execute, a Consent of Spouse, and such
Consent of Spouse was delivered as of the date of this Agreement, or, if later, the date such Person became a party. Such Consent of Spouse
was or will be duly authorized, executed and delivered by such spouse and effectively binds such spouse to the terms set forth therein.
Article III
GOVERNANCE
Section 3.1. Board
of Directors.
(a) Board
Size. The size of the Board shall be determined in the manner set forth from time to time in the Company’s certificate of incorporation
or bylaws. As of the date of this Agreement, the initial size of the Board is [•] Directors.
(b) Board
Representation.
(i) Unless
otherwise agreed in writing by the H&F Stockholders, to the extent permitted by applicable law and the rules of the principal
stock exchange or inter-dealer quotation system on which the Shares are then traded or listed, the H&F Stockholders shall have the
right to nominate a number of individuals for election to the Board equal to the product of the following (such individuals, the “H&F
Nominees”): (x) the percentage of the outstanding Share Equivalents beneficially owned by the H&F Stockholders, taken
together, multiplied by (y) the number of Directors then on the Board, rounded up to the nearest whole number; provided,
that the H&F Stockholders shall have the right to nominate at least one H&F Nominee for so long as the H&F Stockholders beneficially
own, in the aggregate, at least two and one half percent (2.5%) of the then outstanding Share Equivalents of the Company, except that
such right set forth in this proviso shall not apply with respect to any such election if the Board is divided into multiple classes
of Directors, an H&F Nominee has previously been elected to the Board and the term of such H&F Nominee is not expiring concurrently
with such election.
(ii) For
so long as the H&F Stockholders have the right to nominate an H&F Nominee for election pursuant to Section 3.1(b),
in connection with each election of Directors, the Company shall nominate each such H&F Nominee for election as a Director as part
of the slate that is included in the proxy statement (or consent solicitation or similar document) of the Company relating to the election
of Directors, and shall provide the highest level of support for the election of each H&F Nominee as it provides to any other individual
standing for election as a Director of the Company as part of the Company’s slate of Directors.
(iii) In
the event that an H&F Nominee shall cease to serve as a Director for any reason (other than the failure of the stockholders of the
Company to elect such individual as a Director), the H&F Stockholders shall have the right to nominate another H&F Nominee to
fill the vacancy resulting therefrom. For the avoidance of doubt, it is understood that the failure of the stockholders of the Company
to elect any H&F Nominee shall not affect the right of the Persons entitled to designate such H&F Nominee pursuant to Section 3.1(b)(i) to
designate an H&F Nominee for election pursuant to Section 3.1(b)(i) in connection with any future election of Directors
of the Company.
(iv) Each
Non-H&F Stockholder hereby agrees with the Company to take all Necessary Action to effect the appointment of each H&F Nominee
nominated in accordance herewith.
(v) Upon
the classification of the Board into three (3) classes, the initial H&F Nominees shall be [•], [•] and [•].
Upon the classification of the Board into three (3) classes, the initial Class I Directors shall consist of [•], [•]
and [•], the initial Class II Directors shall consist of [•], [•] and [•], and the initial Class III
Directors shall consist of [•], [•] and [•].
Section 3.2. Sharing
of Information. To the extent permitted by antitrust, competition or any other applicable Law, each of the Company and the H&F
Stockholders agrees and acknowledges that the Directors affiliated with or nominated by the H&F may share confidential, non-public
information about the Company and its subsidiaries (“Confidential Information”) with the H&F Stockholders and
their Affiliates and their respective employees, auditors, investors, partners, members, creditors, advisors, counsel and other representatives
(collectively, “Representatives”). Each of the H&F Stockholders recognizes that it, or its Representatives, has
acquired or will acquire Confidential Information the use or disclosure of which could cause the Company substantial loss and damages
that could not be readily calculated and for which no remedy at law would be adequate. Accordingly, each of the H&F Stockholders
covenants and agrees with the Company that it will not (and will cause its respective controlled affiliates and will instruct its Representatives
not to) at any time, except with the prior written consent of the Company, directly or indirectly, disclose any Confidential Information
known to it to any third party (other than the H&F Stockholders and their Representatives), unless (a) such information becomes
known to the public through no breach of this Section 3.2 by such party, (b) disclosure is required by applicable law,
regulation, legal or judicial process or requested by a regulatory, self-regulatory or governmental entity or authority or bank examiner;
provided, that (other than in the case of any required filing following the date of this Agreement with the SEC or in connection
with any audit or examination as described below) the H&F Stockholders or such Representatives promptly notify the Company of such
requirement or request and takes commercially reasonable steps, at the sole cost and expense of the Company, to minimize the extent of
any such required disclosure, (c) such information was available or becomes available to the H&F Stockholders or such Representatives
before, on or after the date of this Agreement, without restriction, from a source (other than the Company) without any breach of duty
to the Company or (d) such information was independently developed by such H&F Stockholders or such Representatives without
the use of the Confidential Information. Notwithstanding the foregoing, nothing in this Agreement shall prohibit any of the H&F Stockholders
or their Representatives from disclosing Confidential Information (x) to any actual or prospective investor, limited partner, member
or shareholder or private equity or other investment fund of an H&F Stockholder or any of its Affiliates, provided, that such
Person shall be bound by or subject to an obligation of confidentiality with respect to such Confidential Information, (y) if such
disclosure is made to a governmental or regulatory entity or authority with jurisdiction over such party in connection with any audit
or examination that is not specifically directed at the Company or the Confidential Information, provided, that such party shall
request that confidential treatment be accorded to any information so disclosed or (z) if such disclosure is reasonably required
or advisable in connection with a tax audit involving such Party or its affiliates. No Confidential Information shall be deemed to be
provided to any Person, including any affiliate or representative of the H&F Stockholders, unless such Confidential Information is
actually provided to such Person.
Article IV
TRANSFER
RESTRICTIONS
Section 4.1. General
Restrictions on Transfers.
(a) Each
Stockholder hereby agrees with the Company that such Stockholder shall not, directly or indirectly, sell, exchange, assign, pledge, hypothecate,
gift or otherwise transfer, dispose of or encumber (all of which acts shall be deemed included in the term “Transfer”
as used in this Agreement) any Securities or any legal, economic or beneficial interest in any Securities (in each case, whether held
in its own right or by its representative and whether voluntary or involuntary or by operation of law) unless (i) to the extent such
Transfer constitutes a Transfer of Securities, such Transfer of Securities is made on the books of the Company (or its transfer agent)
and is not in violation of the provisions of this Article IV and (ii) the transferee of such Securities (if other than
(A) the Company or any of its Subsidiaries, (B) a transferee in a sale of Securities made under Rule 144 under the Securities
Act after an Initial Public Offering, (C) a transferee of Securities pursuant to an offer and sale registered under the Securities
Act or (D) a partner, member or other investor of any Stockholder that is a private equity fund that makes a distribution prior to
or following an Initial Public Offering) agrees to become a party to this Agreement pursuant to Article VII hereof and executes
such further documents as may be necessary, in the reasonable judgment of the Company, to make him, her or it a party hereto, including,
to the extent such transferee is a resident in a community property state (including California), a Consent of Spouse, duly authorized,
executed and delivered by such transferee’s spouse, if any. For the avoidance of doubt, it is understood and agreed that solely
with respect to the H&F Stockholders, a bona fide direct or indirect Transfer of partnership interests in any private equity fund
affiliated with, or managed by, Hellman & Friedman LLC, or its Affiliates, as the case may be, or any Person that holds a direct
or indirect interest in such private equity fund, to another partner or to a third party, shall not constitute a Transfer for purposes
of this Agreement.
(b) Any
purported Transfer of Securities or any interest in any Securities other than in accordance with this Agreement by any Stockholder shall
be null and void ab initio, and the Company shall refuse to recognize any such Transfer for any purpose and shall not reflect in
its records any change in record ownership of Securities pursuant to any such Transfer.
(c) Each
Stockholder acknowledges that the SEC Restricted Securities have not been registered under the Securities Act and may not be transferred
except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the
Securities Act. Each Stockholder agrees that it, he or she will not Transfer any SEC Restricted Securities at any time if such action
would constitute a violation of any securities laws of any applicable jurisdiction or a breach of the conditions to any exemption from
registration of SEC Restricted Securities under any such laws or a breach of any undertaking or agreement of such Stockholder entered
into pursuant to such laws or in connection with obtaining an exemption thereunder. Each Stockholder agrees that any SEC Restricted Securities
to be held by it, him or her that are represented by certificates shall bear the restrictive legend set forth in Section 6.3.
(d) No
Non-H&F Stockholder shall grant any proxy or enter into or agree to be bound by any voting trust with respect to any Securities or
enter into any agreements or arrangements of either kind with any person with respect to any Securities inconsistent with the provisions
of this Agreement, including agreements or arrangements with respect to the acquisition, disposition or voting (if applicable) of any
Securities, nor shall any Non-H&F Stockholder act, for any reason, as a member of a group or in concert with any other Persons in
connection with the acquisition, disposition or voting (if applicable) of any Securities in any manner which is inconsistent with the
provisions of this Agreement.
Section 4.2. Permitted
Transfers.
(a) (i) Each
Stockholder (other than an Employee Stockholder) may Transfer any or all of the Securities held by it to any of its Permitted Assignees
without complying with the provisions of this Article IV, other than Section 4.1; provided, however,
that, with respect to a Transfer to a Permitted Assignee, (x) such Permitted Assignee shall have agreed with the Company, in a written
instrument reasonably satisfactory to the Company, that it will immediately convey record and beneficial ownership of all Securities
and all rights and obligations hereunder to such Stockholder or another Permitted Assignee of such Stockholder prior to such time as
it would cease to be a Permitted Assignee of such Stockholder and (y) as a condition to such Transfer, such Permitted Assignee shall
become a party to this Agreement as provided in Section 4.1(a) and (ii) any Stockholder that is a private equity
fund may, subject to compliance with Section 5.13 distribute any or all of the Securities held by it to its partners, members
or other investors without complying with the provisions of this Article IV, other than Section 4.1.
(b) Each
Stockholder that is an Employee Stockholder may Transfer any or all of the Securities held by him, her or it to a Permitted Assignee
of such Employee Stockholder without complying with the provisions of this Article IV other than Section 4.1;
provided, that (i) such Permitted Assignee shall have agreed with the Company, in a written instrument reasonably satisfactory
to the Company, that he, she or it will immediately convey record and beneficial ownership of all Securities and all rights and obligations
hereunder to such transferring Employee Stockholder or another Permitted Assignee of such transferring Employee Stockholder if he, she
or it ceases to be a Permitted Assignee of such Employee Stockholder and (ii) as a condition to such Transfer, such Permitted Assignee
shall become a party to this Agreement as provided in Section 4.1.
Section 4.3. Transfer
Restriction Period.
(a) During
the period beginning on the date hereof and ending on (and, for the avoidance of doubt, not including) (x) in the case of the Specified
Stockholders, the twelve-(12) month anniversary of an Initial Public Offering, and (y) in the case of all Stockholders other than
the Specified Stockholders and the H&F Stockholders, one hundred eighty (180) days after the effective date of a Registration Statement
of the Company filed in connection with an Initial Public Offering (such period, the “Transfer Restriction Period”),
each Stockholder (other than the H&F Stockholders) hereby agrees with the Company that such Stockholder shall not Transfer any Securities
to any Person, except, subject to compliance with Section 4.1, Transfers:
(i) to
the Company or any of its Affiliates or to any H&F Stockholder or any of its Affiliates;
(ii) to
a Permitted Assignee or as otherwise contemplated pursuant to and in compliance with Section 4.2 (Permitted Transfers);
(iii) pursuant
to and in compliance with Article V (Registration Rights);
(iv) pursuant
to the Underwriting Agreement;
(v) with
the prior written consent of the Company; and/or
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(vi)
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by the Stockholders set forth on Exhibit D of a number of Shares in connection with the Initial Public Offering not to exceed the number
of Shares set forth opposite such Stockholder’s name on Exhibit D.
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(b) If
and to the extent any H&F Stockholder requests in connection with an actual or potential Transfer of Securities by such H&F Stockholder,
the Company shall, and shall cause its Subsidiaries to, make members of the Company’s and its Subsidiaries’ management available
to meet with prospective transferees, provide for the reasonable inspection of the Company’s and its Subsidiaries’ facilities
and reasonable access to the Company’s and its Subsidiaries financial information and other books and records by prospective transferees
and otherwise cooperate in any prospective transferee’s due diligence review of the Company and its Subsidiaries, including facilitating
the cooperation of the Company’s counsel and independent public accountants with any such due diligence review, all pursuant to
such potential transferee having entered into a customary confidentiality agreement regarding all confidential information received in
connection with such due diligence review.
Article V
REGISTRATION
RIGHTS
The Company hereby grants to each of the Holders
(as defined below) the registration rights set forth in this Article V, with respect to the Registrable Securities (as defined
below) owned by such Holders.
Section 5.1. Certain
Definitions. As used in this Article V:
(a) “Automatic
Shelf Registration Statement” shall have the meaning set forth in Rule 405 (or any successor provision) of the Securities
Act.
(b) “Eligible
Take-Down Holders” means any and all of the H&F Initiating Holders.
(c) “H&F
Initiating Holders” means one or more H&F Stockholders or any assignee to whom an H&F Stockholder has transferred rights
pursuant to Section 5.9.
(d) “Holder”
(collectively, “Holders”) means any Stockholder (and any transferee pursuant to Section 5.9) holding Registrable
Securities, securities exercisable or convertible into Registrable Securities or securities exercisable for securities convertible into
Registrable Securities.
(e) “Marketed”
means the use or involvement of a customary “road show” (including an “electronic road show”) or other substantial
marketing effort by underwriters over a period of at least 48 hours.
(f) “Prospectus”
means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including post-effective
amendments, and all other material incorporated by reference in such prospectus.
(g) “register”,
“registered” and “registration” means a registration effected pursuant to a registration statement
filed with the SEC (the “Registration Statement”) in compliance with the Securities Act, and the declaration or ordering
by the SEC of the effectiveness of such Registration Statement.
(h) “Registrable
Securities” means (i) Shares held (whether now held or hereafter acquired) by a Stockholder or any transferee to the extent
permitted by Section 5.9 or, without duplication, by any holder of Securities of the Company that holds registration or similar
rights pursuant to an agreement between such holder of Securities and the Company and (ii) any Shares issued as (or, as of any such
date of determination, then currently issuable upon the conversion or exercise of any warrant, right or other security that is issued
as) a dividend or other distribution with respect to, or in exchange or in replacement of, such Shares contemplated by the immediately
foregoing clause (i); provided, however, that Shares shall cease to be treated as Registrable Securities if (a) a Registration
Statement covering such securities has been declared effective by the SEC and such security has been disposed of pursuant to such effective
Registration Statement, (b) a Registration Statement on Form S-8 (or any successor form) covering such Shares is effective and
the Transfer of such Share is no longer subject to the restrictions on Transfer set forth in Section 4.3, (c) such Shares
are sold pursuant to Rule 144 or 145 promulgated under the Securities Act (or another exemption from the registration requirements
of the Securities Act), (d) such Shares cease to be outstanding or (e) the Holder thereof, together with his, her or its Permitted
Assignees, beneficially owns (excluding any securities covered by the foregoing clause (b)) less than one percent (1%) of the Shares that
are outstanding at such time and such Holder is able to dispose of all of its Registrable Securities in any ninety (90) day period pursuant
to Rule 144 or 145 (or any similar or analogous rule) promulgated under the Securities Act and the Transfer of such Share is no longer
subject to the restrictions on Transfer set forth in Section 4.3. For the avoidance of doubt, it is understood that, with
respect to any Registrable Securities for which a Holder holds Securities which are subject to one or more vesting criteria or conditions,
such vesting criteria or conditions must be satisfied for such Registrable Securities to be sold pursuant to this Article V.
For the avoidance of doubt, it is understood that, with respect to any Registrable Securities for which a Holder holds Securities exercisable
for, convertible into or exchangeable for Registrable Securities, to the extent that such Registrable Securities are to be sold pursuant
to this Article V, such Holder must exercise the relevant Security or exercise, convert or exchange such relevant Security
and transfer the relevant underlying securities that are Registrable Securities (in each case, net of any amounts required to be withheld
by the Company in connection with such exercise).
(i) “Shelf
Registration Statement” means a Registration Statement of the Company filed with the SEC on Form S-3 or on Form S-1
for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (or any similar rule that may
be adopted by the SEC) covering the Registrable Securities, as applicable.
(j) “Shelf
Take-Down” means any offering or sale of Registrable Securities initiated by an H&F Initiating Holder pursuant to a Shelf
Registration Statement.
(k) “Third
Party Holder” means any holder (other than a Holder) of Shares who exercises contractual rights to participate in a registered
offering of Shares.
(l) “Well-Known
Seasoned Issuer” shall have the meaning set forth in Rule 405 (or any successor provision) of the Securities Act.
Section 5.2. Shelf
Registration.
(a) Filing.
Upon the first Business Day of the thirteenth calendar month following an Initial Public Offering or upon an earlier demand by the H&F
Initiating Holders, subject to the Company’s rights under Section 5.2(c) and the limitations set forth in Section 5.2(d),
the Company shall (i) promptly (but in any event no later than ten (10) days prior to the date such Shelf Registration Statement
is declared effective) give written notice (a “Shelf Registration Notice”) of the proposed registration to all Holders
and (ii) use its reasonable best efforts to file as soon as reasonably practicable after such date with the SEC or as soon as possible
following receipt of such demand from the H&F Initiating Holders and to cause to become effective under the Securities Act a Shelf
Registration Statement (which Shelf Registration Statement shall be designated by the Company as an Automatic Shelf Registration Statement
if the Company is a Well-Known Seasoned Issuer at the time of filing such Shelf Registration Statement with the SEC) as will permit or
facilitate the sale and distribution of all Registrable Securities held by any of the H&F Stockholders (or, if the H&F Stockholders
determine to not include all of their Registrable Securities therein, such lesser amount as such Holder shall request to the Company in
writing), together with (x) all or such portion of the Registrable Securities of any Holder or Holders as are specified in a written
request received by the Company within five (5) days after such Shelf Registration Notice is given (each such Holder, and each H&F
Stockholder, a “Shelf Holder”) (such amount not in any event to exceed the total Registrable Securities held by such
Shelf Holder as of the date of such written notice) and (y) all or such portion of the Securities of any Third Party Holder that
the Company determines may register securities in such registration (each such Third Party Holder, a “Third Party Shelf Holder”);
provided, however, that, if the Company is permitted by applicable law, rule or regulation to add selling securityholders
to a Shelf Registration Statement without filing a post-effective amendment, a Holder may request the inclusion of such Holder’s
Registrable Securities (such amount not in any event to exceed the total Registrable Securities held by such Shelf Holder) in such Shelf
Registration Statement at any time or from time to time, and the Company shall add such Registrable Securities to the Shelf Registration
Statement as promptly as reasonably practicable, and such Holder shall be deemed a Shelf Holder. If, on the date of any demand by the
H&F Initiating Holders for the Company to file a Shelf Registration Statement, the Company does not qualify to file a Shelf Registration
Statement, then the provisions of Section 5.3 shall apply instead of this Section 5.2. In no event shall the Company
be required to file, and maintain effectiveness pursuant to Section 5.2(b) of, more than one Shelf Registration Statement
at any one time pursuant to this Section 5.2.
(b) Continued
Effectiveness. Except as otherwise agreed by the H&F Initiating Holders, the Company shall use its reasonable best efforts to
keep such Shelf Registration Statement filed pursuant to this Section 5.2 continuously effective under the Securities Act
(including by filing and having declared effective an additional Shelf Registration Statement if the then effective Shelf Registration
Statement is not permitted to be used pursuant to Rule 415(a)(5) under the Securities Act) in order to permit the Prospectus
forming a part thereof to be usable by the Shelf Holders until the earlier of (i) the date as of which all Registrable Securities
registered by such Shelf Registration Statement have been sold and (ii) such shorter period as the Shelf Holders of a majority of
the Registrable Securities registered on such Shelf Registration Statement, which majority must include the H&F Stockholders to the
extent they are Shelf Holders owning Registrable Securities registered on such Shelf Registration Statement (the “Majority Shelf
Holders”) may determine.
(c) Suspension
of Filing or Registration. If the Company shall furnish to the Majority Shelf Holders, a certificate signed by the Chief Executive
Officer or equivalent senior executive of the Company, stating that the filing, effectiveness or continued use of the Shelf Registration
Statement would require the Company to make an Adverse Disclosure, then the Company shall have a period of not more than sixty (60) days
or such longer period as the Majority Shelf Holders shall consent to in writing, within which to delay the filing or effectiveness (but
not the preparation) of such Shelf Registration Statement or, in the case of a Shelf Registration Statement that has been declared effective,
to suspend the use by Shelf Holders of such Shelf Registration Statement (in each case, a “Shelf Suspension”); provided,
however, that, unless consented to in writing by the Majority Shelf Holders, the Company shall not be permitted to exercise in
any twelve (12) month period (i) more than two (2) Shelf Suspensions pursuant to this Section 5.2(c) and Demand
Delays pursuant to Section 5.3(a)(ii) in the aggregate or (ii) aggregate Shelf Suspensions pursuant to this Section 5.2(c) and
Demand Delays pursuant to Section 5.3(a)(ii) of more than ninety (90) days. Each Shelf Holder shall keep confidential
the fact that a Shelf Suspension is in effect, the certificate referred to above and its contents for the permitted duration of the Shelf
Suspension or until otherwise notified by the Company, except (A) for disclosure to such Shelf Holder’s employees, agents and
professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent
required in order to comply with reporting obligations to its limited partners who have agreed to keep such information confidential and
(C) as required by law. In the case of a Shelf Suspension that occurs after the effectiveness of the Shelf Registration Statement,
the Shelf Holders agree to suspend use of the applicable Prospectus for the permitted duration of such Shelf Suspension in connection
with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the certificate referred to above.
The Company shall notify the Shelf Holders as soon as reasonably practicable upon the termination of any Shelf Suspension, and (1) in
the case of a Shelf Registration Statement that has not been declared effective, shall promptly thereafter file the Shelf Registration
Statement and use its reasonable best efforts to have such Shelf Registration Statement declared effective under the Securities Act and
(2) in the case of an effective Shelf Registration Statement, shall amend or supplement the Prospectus, if necessary, so it does
not contain any material misstatement or omission prior to the expiration of the Shelf Suspension and furnish to the Shelf Holders such
numbers of copies of the Prospectus as so amended or supplemented as the Shelf Holders may reasonably request. The Company agrees, if
necessary, to supplement or make amendments to the Shelf Registration Statement if required by the registration form used by the Company
for the Shelf Registration Statement or by the instructions applicable to such registration form or by the Securities Act or the rules or
regulations promulgated thereunder or as may reasonably be requested by the Majority Shelf Holders.
(d) Shelf
Take-Downs.
(i) Generally.
Subject to the terms and provisions of this Article IV, a Shelf Take-Down proposed to be initiated by an H&F Initiating
Holder (the “Shelf Take-Down Initiating Holder”) may or may not be underwritten and/or Marketed, in each case, as shall
be specified in the written demand delivered by the Shelf Take-Down Initiating Holder to the Company pursuant to the provisions of this
Section 5.2(d). For the avoidance of doubt, only an H&F Initiating Holder may initiate a Shelf Take-Down.
(A) Underwritten
Shelf Take Downs. A Shelf Take-Down Initiating Holder (and not any other Shelf Holder) may elect in a written demand delivered to
the Company (an “Underwritten Shelf Take-Down Notice”) for any Shelf Take-Down that it has initiated (including any
Restricted Shelf Take-Down) to be in the form of an underwritten offering (an “Underwritten Shelf Take-Down”), and
the Company shall, if so requested, file and effect an amendment or supplement of the Shelf Registration Statement for such purpose as
soon as practicable; provided, that any such Underwritten Shelf Take-Down must comply with the minimum size requirements of a Demand
Registration set forth in Section 5.3(a). The applicable Shelf Take-Down Initiating Holder shall have the right to select
the underwriter or underwriters to administer such Underwritten Shelf Take-Down; provided, that such underwriter or underwriters
shall be reasonably acceptable to the Company.
(B) With
respect to any Underwritten Shelf Take-Down (including any Marketed Underwritten Shelf Take-Down), in the event that a Shelf Holder otherwise
would be entitled to participate in such Underwritten Shelf Take-Down pursuant to Section 5.2(d)(iii), the right of such Shelf
Holder to participate in such Underwritten Shelf Take-Down shall be conditioned upon such Shelf Holder’s participation in such underwriting
and the inclusion of such Shelf Holder’s Registrable Securities in the underwriting to the extent provided herein. The Company shall,
together with all Shelf Holders and Third Party Shelf Holders of Registrable Securities of the Company proposing to distribute their securities
through such Underwritten Shelf Take-Down, enter into an underwriting agreement in customary form with the underwriter or underwriters
selected in accordance with Section 5.2(d)(i)(A). Notwithstanding any other provision of this Section 5.2, if
the underwriter shall advise the Company that marketing factors (including an adverse effect on the per security offering price) require
a limitation of the number of Registrable Securities to be underwritten in an Underwritten Shelf Take-Down, then the Company shall so
advise all Shelf Holders and Third Party Shelf Holders of Registrable Securities that have requested to participate in such Underwritten
Shelf Take-Down, and the number of Registrable Securities that may be included in such Underwritten Shelf Take-Down shall be allocated
pro rata among such Shelf Holders and Third Party Shelf Holders thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Shelf Holders and Third Party Shelf Holders at the time of such Underwritten Shelf Take-Down;
provided, that any Registrable Securities thereby allocated to a Shelf Holder or Third Party Shelf Holder that exceeds such Shelf
Holder’s or Third Party Shelf Holder’s request shall be reallocated among the remaining Shelf Holders and Third Party Shelf
Holders in like manner. No Registrable Securities excluded from an Underwritten Shelf Take-Down by reason of the underwriter’s marketing
limitation shall be included in such underwritten offering.
(ii) Marketed
Underwritten Shelf Take-Downs. The Shelf Take-Down Initiating Holder submitting an Underwritten Shelf Take-Down Notice shall indicate
in such notice that it delivers to the Company pursuant to Section 5.2(d)(i) whether it intends for such Underwritten
Shelf Take-Down to be Marketed (a “Marketed Underwritten Shelf Take-Down”); provided, that any such Marketed
Underwritten Shelf Take-Down shall be deemed to be, for purposes of Section 5.3(a), a Demand Registration and must comply
with the minimum size requirements set forth therein. Upon receipt of an Underwritten Shelf Take-Down Notice indicating that such Underwritten
Shelf Take-Down will be a Marketed Underwritten Shelf Take-Down, the Company shall promptly (but in any event no later than ten (10) days
prior to the expected date of such Marketed Underwritten Shelf Take-Down) give written notice of such Marketed Underwritten Shelf Take-Down
to all other Shelf Holders of Registrable Securities under such Shelf Registration Statement and any such Shelf Holders requesting inclusion
in such Marketed Underwritten Shelf Take-Down must respond in writing within five (5) days after the receipt of such notice. Each
such Shelf Holder that timely delivers any such request shall be permitted to sell in such Marketed Underwritten Shelf Take-Down subject
to the terms and conditions of this Section 5.2(d).
(iii) Non-Marketed
Underwritten Shelf Take-Downs.
(A) With
respect to each Underwritten Shelf Take-Down initiated by a Shelf Take-Down Initiating Holder that is not a Marketed Underwritten Shelf
Take-Down (a “Restricted Shelf Take-Down”), the Shelf Take-Down Initiating Holder initiating such Restricted Shelf
Take-Down shall provide written notice (a “Restricted Shelf Take-Down Notice”) of such Restricted Shelf Take-Down to
the Company as far in advance of the completion of such Restricted Shelf Take-Down as shall be reasonably practicable in light of the
circumstances applicable to such Restricted Shelf Take-Down and the Company shall promptly distribute such Restricted Shelf Take-Down
Notice to all other Eligible Take-Down Holders, which Restricted Shelf Take-Down Notice shall set forth (I) the total number of Registrable
Securities expected to be offered and sold in such Restricted Shelf Take-Down, (II) the expected plan of distribution of such Restricted
Shelf Take-Down, (III) an invitation to each Eligible Take-Down Holder to elect (Eligible Take-Down Holders who make such an election
being “Take-Down Tagging Holders” and, together with the Shelf Take-Down Initiating Holders and all other Persons (other
than any Affiliates of the Shelf Take-Down Initiating Holders) who otherwise are transferring, or have exercised a contractual or other
right to transfer, Registrable Securities in connection with such Restricted Shelf Take-Down, the “Restricted Take-Down Selling
Holders”) to include in the Restricted Shelf Take-Down Registrable Securities held by such Take-Down Tagging Holder (but subject
to Section 5.2(d)(i)(B)) and (IV) the action or actions required (including the timing thereof) in connection with such
Restricted Shelf Take-Down with respect to each Eligible Take-Down Holder that elects to exercise such right (including the delivery of
one or more stock certificates representing Registrable Securities of such Eligible Take-Down Holder to be sold in such Restricted Shelf
Take-Down).
(B) Upon
delivery of a Restricted Shelf Take-Down Notice, each Eligible Take-Down Holder may elect to sell Registrable Securities in such Restricted
Shelf Take-Down, at the same price per Registrable Security and pursuant to the same terms and conditions with respect to payment for
the Registrable Securities as agreed to by the Shelf Take-Down Initiating Holders, by sending an irrevocable written notice (a “Take-Down
Participation Notice”) to the Shelf Take-Down Initiating Holders and the Company within the time period specified in such Restricted
Shelf Take-Down Notice, indicating its, his or her election to sell up to the number of Registrable Securities in the Restricted Shelf
Take-Down specified by such Eligible Take-Down Holder in such Take-Down Participation Notice (but, in all cases, subject to Section 5.2(d)(i)(B)).
Following the time period specified in such Restricted Shelf Take-Down Notice, each Take- Down Tagging Holder that has delivered a Take-Down
Participation Notice shall be permitted to sell in such Restricted Shelf Take-Down on the terms and conditions set forth in the Restricted
Shelf Take-Down Notice, concurrently with the Shelf Take-Down Initiating Holders and the other Restricted Take-Down Selling Holders, the
number of Registrable Securities calculated pursuant to Section 5.2(d)(i)(B). For the avoidance of doubt, it is understood
that in order to be entitled to exercise its, his or her right to sell Registrable Securities in a Restricted Shelf Take-Down pursuant
to this Section 5.2(d)(iii), each Take-Down Tagging Holder must agree to make the same representations, warranties, covenants,
indemnities and agreements, if any, as the Shelf Take-Down Initiating Holders agree to make in connection with the Restricted Shelf Take-Down,
with such additions or changes as are required of such Take-Down Tagging Holder by the underwriters. All costs and expenses incurred by
the Shelf Take-Down Initiating Holders in connection with such Restricted Shelf Take-Down shall be borne on a pro rata basis in
accordance with the number of Registrable Securities being sold by each of the Restricted Take-Down Selling Holders.
(C) Notwithstanding
the delivery of any Restricted Shelf Take-Down Notice, all determinations as to whether to complete any Restricted Shelf Take-Down and
as to the timing, manner, price and other terms and conditions of any Restricted Shelf Take-Down shall be at the sole discretion of the
Shelf Take-Down Initiating Holders. Each of the applicable Shelf Holders agrees to reasonably cooperate with each of the other applicable
Shelf Holders to establish notice, delivery and documentation procedures and measures to facilitate such other applicable Shelf Holder’s
participation in future potential Restricted Shelf Take-Downs pursuant to this Section 5.2(d)(iii).
(D) Notwithstanding
anything herein to the contrary, except as otherwise agreed by the applicable Shelf Take-Down Initiating Holder that delivered a Restricted
Shelf Take-Down Notice to the Company pursuant to Section 5.2(d)(iii)(A), no Shelf Holders other than the Eligible Take-Down
Holders will have the right to participate in any Restricted Shelf Take-Down.
Section 5.3. Demand
Registration.
(a) Holders’
Demand for Registration. If the Company shall receive from the H&F Initiating Holders at any time a written demand that the Company
effect any registration (a “Demand Registration”) of Registrable Securities held by such Holders having a reasonably
anticipated net aggregate offering price (after deduction of underwriter commissions and offering expenses) of at least the lesser of
(x) $25,000,000 and (y) the value of all remaining Registrable Securities held by the H&F Initiating Holders, the Company
will:
(i) promptly
(but in any event within ten (10) days prior to the date such registration becomes effective under the Securities Act) give written
notice of the proposed registration to all other Holders; and
(ii) use
its reasonable best efforts to effect such registration as soon as practicable as will permit or facilitate the sale and distribution
of all or such portion of such H&F Initiating Holders’ Registrable Securities as are specified in such demand, together with
all or such portion of the Registrable Securities of any other Holders joining in such demand as are specified in a written demand received
by the Company within five (5) days after such written notice is given; provided, that the Company shall not be obligated
to file any Registration Statement or other disclosure document pursuant to this Section 5.3 (but shall be obligated to continue
to prepare such Registration Statement or other disclosure document) if the Company shall furnish to such Holders a certificate signed
by the Chief Executive Officer or equivalent senior executive of the Company, stating that the filing or effectiveness of such Registration
Statement would require the Company to make an Adverse Disclosure, in which case the Company shall have an additional period (each, a
“Demand Delay”) of not more than sixty (60) days (or such longer period as may be agreed upon by the H&F Initiating
Holders) within which to file such Registration Statement; provided, however, that the Company shall not exercise, in any
twelve (12) month period, (x) more than two (2) Demand Delays pursuant to this Section 5.3(a)(ii) and Shelf
Suspensions pursuant to Section 5.2(c) in the aggregate or (y) aggregate Demand Delays pursuant to this Section 5.3(a)(ii) and
Shelf Suspensions pursuant to Section 5.2(c) of more than ninety (90) days. Each Holder shall keep confidential the fact
that a Demand Delay is in effect, the certificate referred to above and its contents for the permitted duration of the Demand Delay or
until otherwise notified by the Company, except (A) for disclosure to such Holder’s employees, agents and professional advisers
who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order
to comply with reporting obligations to its limited partners who have agreed to keep such information confidential and (C) as required
by law.
(b) Underwriting.
If the H&F Initiating Holders intend to distribute the Registrable Securities covered by their demand by means of an underwritten
offering, they shall so advise the Company as part of their demand made pursuant to this Section 5.3, and the Company shall
include such information in the written notice referred to in Section 5.3(a)(i). In such event, the right of any Holder to
registration pursuant to this Section 5.3 shall be conditioned upon such Holder’s participation in such underwriting
and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. The Company shall,
together with all holders of Registrable Securities of the Company proposing to distribute their securities through such underwriting,
enter into an underwriting agreement in customary form with the underwriter or underwriters selected by a majority-in-interest of the
H&F Initiating Holders and reasonably satisfactory to the Company. Notwithstanding any other provision of this Section 5.3,
if the underwriter shall advise the Company that marketing factors (including an adverse effect on the per security offering price) require
a limitation of the number of Registrable Securities to be underwritten, then the Company shall so advise all Holders of Registrable Securities
that have requested to participate in such offering, and the number of Registrable Securities that may be included in the registration
and underwriting shall be allocated pro rata among such Holders and other holders of Registrable Securities exercising a contractual
or other right to dispose of Registrable Securities in such underwriting thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such persons at the time of filing the Registration Statement; provided, that any Registrable
Securities thereby allocated to any such person that exceed such person’s request shall be reallocated among the remaining requesting
Holders and other requesting holders of Registrable Securities in like manner; and provided, further, that the number of
Registrable Securities to be included in such underwriting shall not be reduced unless all other Securities are first entirely excluded
from the underwriting. No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation
shall be included in such registration. If the underwriter has not limited the number of Registrable Securities to be underwritten, the
Company may include securities for its own account (or for the account of any other Persons) in such registration if the underwriter so
agrees and if the number of Registrable Securities would not thereby be limited.
(c) Effective
Registration. The Company shall be deemed to have effected a Demand Registration if the Registration Statement pursuant to such registration
is declared effective by the SEC and remains effective for not less than one hundred eighty (180) days (or such shorter period as will
terminate when all Registrable Securities covered by such Registration Statement have been sold or withdrawn), or, if such Registration
Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriters, a prospectus is
required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer (the applicable period,
the “Demand Period”). No Demand Registration shall be deemed to have been effected if (i) during the Demand Period
such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency
or court or (ii) the conditions specified in the underwriting agreement, if any, entered into in connection with such registration
are not satisfied other than by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement by a participating
Holder.
Section 5.4. Piggyback
Registration.
(a) If
at any time or from time to time the Company shall determine to register any of its equity securities, either for its own account or for
the account of security holders (other than (1) in a registration relating solely to employee benefit plans, (2) a Registration
Statement on Form S-4 or S-8 (or such other similar successor forms then in effect under the Securities Act), (3) a registration
pursuant to which the Company is offering to exchange its own securities for other securities, (4) a Registration Statement relating
solely to dividend reinvestment or similar plans, (5) a Shelf Registration Statement pursuant to which only the initial purchasers
and subsequent transferees of debt securities or preferred stock of the Company or any Subsidiary that are convertible into or exchangeable
for Securities and that are initially issued pursuant to Rule 144A and/or Regulation S (or any successor provision) of the Securities
Act may resell such notes or preferred stock and sell the Securities into which such notes or preferred stock may be converted or exchanged
or (6) a registration pursuant to Section 5.2 or Section 5.3 hereof) the Company will:
(i) promptly
(but in no event less than ten (10) days before the effective date of the relevant Registration Statement) give to each Holder written
notice thereof; and
(ii) include
in such registration (and any related qualification under state securities laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or requests made within five (5) days after receipt of such
written notice from the Company by any Holder or Holders, except as set forth in Section 5.3(b) below.
Notwithstanding anything herein to the contrary, this Section 5.4
shall not apply (i) prior to the one-year anniversary of an Initial Public Offering in respect of any Holder, unless (x) one
or more of the H&F Stockholders elect to participate in such registration or (y) the H&F Stockholders, in their sole discretion,
elect by written notice to the Company for this Section 5.4 to apply to the Registrable Securities of any one or more other
Holders specified in such notice and/or (ii) to any Shelf Take-Down irrespective of whether such Shelf Take-Down is an Underwritten
Shelf Take-Down or not an Underwritten Shelf Take-Down.
(b) Underwriting.
If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section 5.4(a)(i). In such event the right of any
Holder to registration pursuant to this Section 5.4 shall be conditioned upon such Holder’s participation in such underwriting
and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing
to dispose of their Registrable Securities through such underwriting, together with the Company and the other parties distributing their
securities through such underwriting, shall enter into an underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other provision of this Section 5.4, if the underwriters
shall advise the Company that marketing factors (including, without limitation, an adverse effect on the per security offering price)
require a limitation of the number of Registrable Securities to be underwritten, then the Company may limit the number of Registrable
Securities to be included in the registration and underwriting, subject to the terms of this Section 5.4. The Company shall
so advise all Holders of Registrable Securities that have requested to participate in such offering, and the number of Registrable Securities
that may be included in the registration and underwriting shall be allocated in the following manner: first, to the Company and second,
to the Holders and other holders of Registrable Securities exercising a contractual or other right to dispose of Registrable Securities
in such underwriting on a pro rata basis based on the total number of Registrable Securities held by such persons; provided,
that any Registrable Securities thereby allocated to any such person that exceed such person’s request shall be reallocated among
the remaining requesting Holders and other requesting holders of Registrable Securities in like manner. No such reduction shall (i) reduce
the Securities being offered by the Company for its own account to be included in the registration and underwriting, or (ii) reduce
the amount of securities of the selling Holders included in the registration below twenty-five percent (25%) of the total amount of Securities
included in such registration, unless such offering does not include Securities of any other selling security holders, in which event
any or all of the Registrable Securities of the Holders may be excluded in accordance with the immediately preceding sentence. No securities
excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. For the
avoidance of doubt, nothing in this Section 5.4(b) is intended to diminish the number of securities to be included by
the Company in the underwriting.
(c) Right
to Terminate Registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 5.4
prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration.
Section 5.5. Expenses
of Registration. All Registration Expenses incurred in connection with all registrations effected pursuant to Section 5.2,
Section 5.3 or Section 5.4 or in connection with any other Transfer by the H&F Stockholders shall be borne
or reimbursed by the Company; provided, however, that the Company shall not be required to pay stock transfer taxes, underwriters’
discounts or selling commissions relating to Registrable Securities.
Section 5.6. Obligations
of the Company. Whenever required under this Article V to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) prepare
and file with the SEC a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause
such Registration Statement to become effective, and keep such Registration Statement effective for (i) the lesser of one hundred
eighty (180) days or until the Holder or Holders have completed the distribution relating thereto or (ii) for such longer period
as may be prescribed herein;
(b) prepare
and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration
Statement as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition
by sellers thereof set forth in such Registration Statement;
(c) permit
any Holder that (in the good faith reasonable judgment of such Holder) might be deemed to be a controlling person of the Company to participate
in good faith in the preparation of such Registration Statement and to cooperate in good faith to include therein material, furnished
to the Company in writing, that in the reasonable judgment of such Holder and its counsel should be included;
(d) furnish
to the Holders such numbers of copies of the Registration Statement and the related Prospectus, including all exhibits thereto and documents
incorporated by reference therein and a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them;
(e) in
the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement;
(f) notify
each Holder of Registrable Securities covered by such Registration Statement as soon as reasonably possible after notice thereof is received
by the Company of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments
or supplements to such Registration Statement or such prospectus or for additional information;
(g) notify
each Holder of Registrable Securities covered by such Registration Statement, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(h) notify
each Holder of Registrable Securities covered by such Registration Statement as soon as reasonably practicable after notice thereof is
received by the Company of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any
order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final prospectus or the initiation
or threatening of any proceedings for such purposes, or any notification with respect to the suspension of the qualification of the Registrable
Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(i) use
its reasonable best efforts to prevent the issuance of any stop order suspending the effectiveness of any Registration Statement or of
any order preventing or suspending the use of any preliminary or final prospectus and, if any such order is issued, to obtain the withdrawal
of any such order as soon as practicable;
(j) make
available for inspection by each Holder including Registrable Securities in such registration, any underwriter participating in any distribution
pursuant to such registration, and any attorney, accountant or other agent retained by such Holder or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, as such parties may reasonably request, and cause the Company’s
officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant
or agent in connection with such Registration Statement;
(k) use
its reasonable best efforts to register or qualify, and cooperate with the Holders of Registrable Securities covered by such Registration
Statement, the underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable
Securities for offer and sale under the “Blue Sky” or securities laws of each state and other jurisdiction of the United States
as any such Holder or underwriters, if any, or their respective counsel reasonably request in writing, and do any and all other things
reasonably necessary or advisable to keep such registration or qualification in effect for such period as required by Section 5.2(b) and
Section 5.2(c), as applicable; provided, that the Company shall not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified or take any action which would subject it to taxation service of process in any
such jurisdiction where it is not then so subject;
(l) obtain
for delivery to the Holders of Registrable Securities covered by such Registration Statement and to the underwriters, if any, an opinion
or opinions from counsel for the Company, dated the effective date of the Registration Statement or, in the event of an underwritten offering,
the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory
to such holders or underwriters, as the case may be, and their respective counsel;
(m) in
the case of an underwritten offering, obtain for delivery to the Company and the underwriters, with copies to the Holders of Registrable
Securities included in such registration, a cold comfort letter from the Company’s independent certified public accountants in customary
form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably
request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(n) use
its reasonable best efforts to list the Registrable Securities that are covered by such Registration Statement with any securities exchange
or automated quotation system on which the Securities are then listed;
(o) provide
and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement
from and after a date not later than the effective date of such Registration Statement;
(p) cooperate
with Holders including Registrable Securities in such registration and the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold, such certificates to be in such denominations and registered
in such names as such Holders or the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable
Securities;
(q) use
its reasonable best efforts to comply with all applicable securities laws and make available to its Holders, as soon as reasonably practicable,
an earnings statement satisfying the provisions of section 11(a) of the Securities Act and the rules and regulations promulgated
thereunder; and
(r) in
the case of an underwritten offering, cause the senior executive officers of the Company to participate in the customary “road show”
presentations that may be reasonably requested by the underwriters and otherwise to facilitate, cooperate with and participate in each
proposed offering contemplated herein and customary selling efforts related thereto.
Section 5.7. Indemnification.
(a) The
Company will, and does hereby undertake to, indemnify and hold harmless each Holder of Registrable Securities and each of such Holder’s
officers, directors, trustees, employees, partners, managers, members, equityholders, beneficiaries, affiliates and agents and each Person,
if any, who controls such Holder, within the meaning of either section 15 of the Securities Act or section 20 of the Exchange Act, with
respect to any registration, qualification, compliance or sale effected pursuant to this Article IV, and each underwriter,
if any, and each Person who controls any underwriter, of the Registrable Securities held by or issuable to such Holder, against all claims,
losses, damages and liabilities (or actions in respect thereto) to which they may become subject under the Securities Act, the Exchange
Act, or other federal or state law arising out of or based on (i) any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular, free writing prospectus or other similar document (including any related Registration
Statement, notification, or the like) incident to any such registration, qualification, compliance or sale effected pursuant to this Article IV,
or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which they were made, (ii) any violation or alleged violation
by the Company of any federal, state or common law rule or regulation applicable to the Company in connection with any such registration,
qualification, compliance or sale, or (iii) any failure to register or qualify Registrable Securities in any state where the Company
or its agents have affirmatively undertaken or agreed in writing (including pursuant to Section 5.6(k)) that the Company (the
undertaking of any underwriter being attributed to the Company) will undertake such registration or qualification on behalf of the Holders
of such Registrable Securities (provided, that in such instance the Company shall not be so liable if it has undertaken its reasonable
best efforts to so register or qualify such Registrable Securities) and will reimburse, as incurred, each such Holder, each such underwriter
and each such director, officer, trustee, employee, partner, manager, member, equityholder, beneficiary, affiliate, agent and controlling
person, for any legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage,
liability or action; provided, that the Company will not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or omission made in reliance and in conformity with written information
furnished to the Company by such Holder or underwriter expressly for use therein.
(b) Each
Holder (if Registrable Securities held by or issuable to such Holder are included in such registration, qualification, compliance or sale
pursuant to this Article IV) does hereby undertake to indemnify and hold harmless, severally and not jointly, the Company,
each of its officers, directors, employees, equityholders, affiliates and agents and each Person, if any, who controls the Company within
the meaning of either section 15 of the Securities Act or section 20 of the Exchange Act, each underwriter, if any, and each Person who
controls any underwriter, of the Company’s securities covered by such a Registration Statement, and each other Holder, each of such
other Holder’s officers, directors, employees, partners, equityholders, affiliates and agents and each Person, if any, who controls
such Holder within the meaning of either section 15 of the Securities Act or section 20 of the Exchange Act, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any such Registration Statement, prospectus, offering circular, free writing prospectus or other document,
or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they were made, and will reimburse, as incurred, the Company, each such
underwriter, each such other Holder, and each such officer, director, trustee, employee, partner, equityholder, beneficiary, affiliate,
agent and controlling person of the foregoing, for any legal or any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged omission) was made in such Registration Statement, prospectus, offering circular,
free writing prospectus or other document, in reliance upon and in conformity with written information furnished to the Company by such
Holder expressly for use therein; provided, however, that the aggregate liability of each Holder hereunder shall be limited
to the gross proceeds after underwriting discounts and commissions received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation. It is understood and agreed that the indemnification obligations of each Holder pursuant
to any underwriting agreement entered into in connection with any Registration Statement shall be limited to the obligations contained
in this Section 5.7(b).
(c) Each
party entitled to indemnification under this Section 5.7 (the “Indemnified Party”) shall give notice to
the party required to provide such indemnification (the “Indemnifying Party”) of any claim as to which indemnification
may be sought promptly after such Indemnified Party has actual knowledge thereof, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be subject to approval by the Indemnified Party (whose approval shall not be unreasonably
withheld) and the Indemnified Party may participate in such defense at the Indemnifying Party’s expense if representation of such
Indemnified Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding; and provided, further, that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 5.7, except to the
extent that such failure to give notice materially prejudices the Indemnifying Party in the defense of any such claim or any such litigation.
An Indemnifying Party, in the defense of any such claim or litigation, may, without the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that (i) includes as a term thereof the giving by the claimant or plaintiff therein
to such Indemnified Party of an unconditional release from all liability with respect to such claim or litigation and (ii) does not
include any recovery (including any statement as to or an admission of fault, culpability or a failure to act by or on behalf of such
Indemnified Party) other than monetary damages, and provided, that any sums payable in connection with such settlement are paid
in full by the Indemnifying Party.
(d) In
order to provide for just and equitable contribution in case indemnification is prohibited or limited by law, the Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of
such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party
and Indemnified Party in connection with the actions which resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or alleged untrue statement of material fact or omission
or alleged omission to state a material fact, has been made by, or relates to information supplied by, such Indemnifying Party or Indemnified
Party, and such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such actions; provided,
however, that, in any case, (i) no Holder will be required to contribute any amount in excess of the gross proceeds after
underwriting discounts and commissions received by such Holder upon the sale of the Registrable Securities giving rise to such contribution
obligation and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of section 11(f) of the Securities
Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The
indemnities provided in this Section 5.7 shall survive the transfer of any Registrable Securities by such Holder.
Section 5.8. Information
by Holder. The Holder or Holders of Registrable Securities included in any registration shall furnish to the Company such information
regarding such Holder or Holders and the distribution proposed by such Holder or Holders as the Company may reasonably request in writing
and as shall be required in connection with any registration, qualification or compliance referred to in this Article V.
Section 5.9. Transfer
of Registration Rights. The rights contained in Section 5.2, Section 5.3 and Section 5.4 hereof
to cause the Company to register the Registrable Securities may be assigned or otherwise conveyed by a Holder pursuant to a Transfer
permitted under Article IV.
Section 5.10. Delay
of Registration. No Holder shall have any right to obtain, and hereby waives any right to seek, an injunction restraining or otherwise
delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation
of this Article V.
Section 5.11. Limitations
on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent
of the H&F Stockholders, enter into any agreement with any holder or prospective holder of any securities of the Company that would
allow such holder or prospective holder to (i) require the Company to effect a registration or (ii) include any securities
in any registration filed under Section 5.2, Section 5.3 and/or Section 5.4, unless, in each case,
under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the
extent that the inclusion of such securities will not diminish the amount of Registrable Securities that are included in such registration.
Section 5.12. Rule 144
Reporting. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC that may
permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its reasonable best efforts
to:
(a) make
and keep current public information available, within the meaning of Rule 144 (or any similar or analogous rule) promulgated under
the Securities Act, at all times after it has become subject to the reporting requirements of the Exchange Act;
(b) file
with the SEC, in a timely manner, all reports and other documents required of the Company under the Securities Act and Exchange Act (after
it has become subject to such reporting requirements); and
(c) so
long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 under the Securities Act (at any time commencing ninety (90) days after
the effective date of the first registration filed by the Company for an offering of its securities to the general public), the Securities
Act and the Exchange Act (at any time after it has become subject to such reporting requirements); a copy of the most recent annual or
quarterly report of the Company; and such other reports and documents as a Holder may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without registration.
Section 5.13. “Market
Stand Off” Agreement. Notwithstanding anything herein to the contrary, the Company and each Holder hereby agrees, and the Company
agrees to cause its directors and executive officers to agree that, during the period beginning ten (10) days before the effective
date of a Registration Statement of the Company filed in connection with an Initial Public Offering, and ending not more than one hundred
eighty (180) days thereafter, with respect to any underwritten offering following an Initial Public Offering (including any Underwritten
Shelf Take-Down), (x) from and after the effective date of a Registration Statement of the Company filed under the Securities Act
in connection with such underwritten offering or (y) in the case of an Underwritten Shelf Take-Down off of a Registration Statement
filed not in connection with such underwritten offering, during the period from and after the date of the filing of, or after the date
of effectiveness of, a preliminary prospectus or prospectus supplement relating to such offering (or if there is no such filing, from
and after the first contemporaneous press release announcing commencement of such Underwritten Shelf Take-Down), and ending on such date
thereafter as the H&F Initiating Holder that has initiated such underwritten offering (in the case of clause (x)) or such Underwritten
Shelf Take-Down (in the case of clause (y)) may agree to with the underwriter or underwriters of such underwritten offering (which period
shall in no event exceed ninety (90) days), it and its Affiliates shall not, to the extent requested by the Company and/or any underwriter,
sell, pledge, hypothecate, transfer, make any short sale of, loan, grant any option or right to purchase of, or otherwise transfer or
dispose of (other than to donees who agree to be similarly bound) any Securities held by it at any time during such period, except Securities
included in such registration. The Company and each applicable Holder shall, and the Company agrees to cause its directors and executive
officers to, deliver to the underwriter or underwriters of any offering to which this Section 5.13 is applicable a customary
agreement reflecting its agreement set forth in this Section 5.13.
Section 5.14. Termination
of Registration Rights. The rights of any particular Holder to cause the Company to register securities under Section 5.2,
Section 5.3 or Section 5.4 shall terminate as to such Holder on the date that such Holder, together with its
Affiliates and Permitted Assignees, beneficially owns (excluding any securities covered by clause (b) of the proviso set forth in
the definition of “Registrable Securities”) less than one percent (1%) of the Securities that are outstanding at such time
and such Holder is able to dispose of all of its Registrable Securities in any 90 day period pursuant to Rule 144 or 145 (or any
similar or analogous rule) promulgated under the Securities Act.
Section 5.15. Other
Obligations. In connection with a Transfer of Registrable Securities exempt from Section 5 of the Securities Act or through
any broker-dealer transactions described in the plan of distribution set forth within a prospectus related to the Shelf Registration
Statement of which such prospectus forms a part, the Company shall, subject to applicable Law, as interpreted by the Company with the
advice of counsel, and the receipt of any customary documentation required from the applicable Stockholders in connection therewith,
(a) promptly instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being Transferred
and (b) cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction
under clause (a). In addition, the Company shall cooperate reasonably with, and take such customary actions as may reasonably be requested
by the Stockholders, in connection with the aforementioned Transfers.
Article VI
ADDITIONAL
AGREEMENTS OF THE PARTIES
Section 6.1. Further
Assurances. From time to time, at the reasonable request of the Company or the H&F Stockholders and without further consideration,
each party hereto shall execute and deliver such additional documents and take all such further action as may be necessary or appropriate
to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.
Section 6.2. Other
Businesses; Waiver of Certain Duties.
(a) The
parties expressly acknowledge and agree that to the fullest extent permitted by applicable law, each of the H&F Stockholders (including
(x) their respective Affiliates, (y) any portfolio company in which they or any of their respective Affiliates have made an
investment and (z) any of their respective limited partners, non-managing members or other similar direct or indirect investors)
and the directors of the Company or any of its Subsidiaries appointed by any of the H&F Stockholders:
(i) have
the right to, and shall have no duty (fiduciary, contractual or otherwise) not to, directly or indirectly engage in and possess interests
in other business ventures of every type and description, including those engaged in the same or similar business activities or lines
of business as the Company or any of its Subsidiaries or deemed to be competing with the Company or any of its Subsidiaries, on its own
account, or in partnership with, or as an employee, officer, director or shareholder of any other Person, with no obligation to offer
to the Company or any of its Subsidiaries or any Stockholder of the Company or any of its Subsidiaries the right to participate therein;
(ii) may
invest in, or provide services to, any Person that directly or indirectly competes with the Company or any of its Subsidiaries; and
(iii) shall
have no duty (fiduciary, contractual or otherwise) to communicate or present any knowledge of a potential transaction or matter that
may be a corporate or other business opportunity for the Company or any of its Subsidiaries to the Company or any of its Subsidiaries
or any Stockholder of the Company or any of its Subsidiaries, and, notwithstanding any provision of this Agreement to the contrary, shall
not be liable to the Company or any of its Subsidiaries or any Stockholder of the Company or any of its Subsidiaries (or their respective
Affiliates) for breach of any duty (fiduciary, contractual or otherwise) by reason of the fact that such Person, directly or indirectly,
pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not present such opportunity to the
Company or any of its Subsidiaries or any Stockholder of the Company or any of its Subsidiaries (or their respective Affiliates).
For the avoidance of doubt, the parties acknowledge that this paragraph
is intended to disclaim and renounce, to the fullest extent permitted by applicable law, any right of the Company or any of its Subsidiaries
with respect to the matters set forth herein, and this paragraph shall be construed to effect such disclaimer and renunciation to the
fullest extent permitted by law.
(b) The
provisions of this Section 6.2, to the extent that they restrict the duties and liabilities of any of the H&F Stockholders
or any director of the Company appointed by any of the H&F Stockholders otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of the H&F Stockholders or any such director of the Company appointed
by any of the H&F Stockholders to the fullest extent permitted by applicable law.
Section 6.3. Legends
on Securities.
(a) Each
certificate (or book entry share) evidencing Securities owned by a Stockholder and which are subject to the terms of this Agreement shall
bear (or be subject to in the case of book entry shares) a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE RESOLD
OR TRANSFERRED UNLESS REGISTERED OR EXEMPT FROM REGISTRATION UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE TERMS OF A STOCKHOLDERS AGREEMENT, DATED AS OF [●], 2021 (AS MAY BE AMENDED, RESTATED, MODIFIED OR SUPPLEMENTED
FROM TIME TO TIME), AND MAY NOT BE VOTED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT.
In the event that any such Securities shall cease to be SEC Restricted
Securities and such Securities shall continue to be represented by certificates (or be in book entry form), the Company shall, upon the
written request of the holder thereof, issue to such holder a new certificate (or book entry share) representing such Securities without
the first paragraph of the legend required by this Section 6.3. In the event that any Securities so represented by certificates
(or in book entry form) shall cease to be subject to the restrictions on transfer set forth in this Agreement and such Securities shall
continue to be represented by certificates (or be in book entry form), the Company shall, upon the request of the holder thereof, issue
to such holder a new certificate (or book entry share) representing such Securities without the second paragraph of the legend required
by this Section 6.3.
(b) To
the extent any SEC Restricted Securities hereafter issued, whether upon transfer or original issue, are to be represented by certificates
(or in book entry form), all such SEC Restricted Securities shall be endorsed with a like legend.
Section 6.4. Reimbursement.
(a) The
Company, will, and will cause its Subsidiaries to, pay directly or reimburse, or cause to be paid directly or reimbursed, the H&F
Stockholders and each of their respective Affiliates the actual and reasonable out-of-pocket costs and expenses incurred by the H&F
Stockholders and their respective Affiliates in connection with their investment in the Company, including (i) fees and actual and
reasonable out-of-pocket disbursements of any independent professionals and organizations, including independent accountants, outside
legal counsel or consultants retained by such H&F Stockholders or any of their Affiliates, (ii) reasonable costs of any outside
services or independent contractors such as financial printers, couriers, business publications, on-line financial services or similar
services, retained or used by such H&F Stockholders or any of their respective Affiliates, (iii) any actual and reasonable out-of-pocket
costs and expenses incurred by the H&F Stockholders and their Affiliates in connection with the provision of any personnel or services
to the Company or its Subsidiaries, and (iv) transportation, word processing expenses or any similar expense not associated with
their or their Affiliates’ ordinary operations.
(b) For
the avoidance of doubt, no Stockholder or its Affiliates will receive any monitoring, transaction or similar fee from the Company or
any of its Subsidiaries.
(c) All
payments or reimbursement for such expenses will be made by wire transfer in same-day funds to the bank account designated by such H&F
Stockholders or its relevant Affiliate promptly upon or as soon as practicable following request for reimbursement.
(d) Directors
shall be reimbursed by the Company or a Subsidiary of the Company for all actual and reasonable out-of-pocket costs and expenses incurred
by them in connection with their service on the Board (including accommodation and travel costs (which in the case of air travel shall
be limited to travel by commercial airlines; provided, that if a director of the Board elects to travel by private aircraft for
a particular trip, the amount reimbursed shall not exceed the amount of a first-class flight for an equivalent trip)). In the case of
a director who is also an employee of the Company or any Subsidiary, the foregoing expense reimbursement shall not include any costs
and expenses incurred by such director with respect to entering into an employment, equity, award, grant or other arrangements with the
Company or any Subsidiary, except as otherwise agreed to in writing between the Company (and approved in advance by the Board) and any
such director. In the case of any director who is a partner or employee of any Affiliate of the H&F Stockholders, such reimbursement
may be paid to any of the H&F Stockholders or their Affiliate.
Article VII
ADDITIONAL
PARTIES
Section 7.1. Additional
Parties. Additional parties may be added to and be bound by and receive the benefits and be subject to the obligations provided by
this Agreement upon the signing and delivery of a counterpart of this Agreement or a Joinder Agreement (and, if applicable a Consent
of Spouse) to the Company and the acceptance thereof by such additional parties and, to the extent permitted by Section 7.1,
amendments may be effected to this Agreement reflecting such rights and obligations, consistent with the terms of this Agreement, of
such Stockholder as the Company and such Stockholder may agree. In the case of execution of a counterpart of this Agreement as opposed
to a joinder hereto, promptly after signing and delivering such a counterpart of this Agreement, the Company will deliver a conformed
copy thereof to all of the parties.
Article VIII
INDEMNIFICATION
Section 8.1. Indemnification.
(a) To
the fullest extent permitted by law, the Company shall, and shall cause its Controlled Entities to, indemnify and hold harmless each
Covered Person and each former Covered Person from and against any and all losses, claims, demands, liabilities, expenses, judgments,
fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative
or investigative (collectively, “Claims”), by reason of the fact that he or she, his or her testator or intestate
is or was a director or officer of the Company, any of its Controlled Entities or any of their respective predecessors or serves or served
at any other enterprise as a director, officer, partner, shareholder, member or manager at the request of the Company, any of its Controlled
Entities or any of their respective processors (an “Indemnitee”) and, upon request of such Indemnitee, the Company
shall, and shall cause its Controlled Entities to, advance expenses to such Indemnitee in connection with any such Claim (subject to
such Indemnitee providing an undertaking to repay such advances if it is ultimately determined that such individual is not entitled to
indemnification); provided, that the foregoing indemnification shall not apply to (i) any Claim with respect to which a court
of competent jurisdiction has determined that such Indemnitee has engaged in fraud, willful misconduct, bad faith or gross negligence,
(ii) any Claim initiated by such Indemnitee unless such Claim (or part thereof) (A) was brought to enforce such Indemnitee’s
rights to indemnification hereunder or (B) was authorized or consented to by the Board or (iii) any Claims from any transaction
from which such Indemnitee derived an improper personal benefit.
(b) The
Company acknowledges and agrees that the Company shall, and to the extent applicable shall cause its Controlled Entities to, be fully
and primarily responsible for the payment to the Indemnitee in respect of indemnified liabilities in connection with any Jointly Indemnifiable
Claims (as defined below), pursuant to and in accordance with (as applicable) the terms of (i) in the case of the Company and any
Controlled Entities that are Delaware corporations, the Delaware General Corporation Law, as amended; in the case of any Controlled Entities
that are Delaware limited partnerships, the Delaware Revised Uniform Limited Partnership Act, as amended; in the case of any Controlled
Entities that are Delaware limited liability companies, the Delaware Limited Liability Company Act, as amended, (ii) this Agreement
and the certificate of incorporation and bylaws of the Company, (iii) any director indemnification agreement, (iv) any other
agreement between the Company or any of its Controlled Entities and the Indemnitee pursuant to which the Indemnitee is indemnified, (v) the
laws of the jurisdiction of incorporation or organization of the Company or any Controlled Entity and/or (vi) the certificate of
incorporation, certificate of organization, bylaws, partnership agreement, operating agreement, certificate of formation, certificate
of limited partnership or other organizational or governing documents of any Controlled Entity ((i) through (vi) collectively,
the “Indemnification Sources”), irrespective of any right of recovery the Indemnitee may have from any corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Company, any
Controlled Entity or the insurer under and pursuant to an insurance policy of the Company or any Controlled Entity) from whom an Indemnitee
may be entitled to indemnification with respect to which, in whole or in part, the Company or any Controlled Entity may also have an
indemnification obligation (collectively, the “Indemnitee-Related Entities”). Under no circumstance shall the Company
or any Controlled Entity be entitled to any right of subrogation or contribution by the Indemnitee-Related Entities and no right of advancement
or recovery the Indemnitee may have from the Indemnitee-Related Entities shall reduce or otherwise alter the rights of the Indemnitee
or the obligations of the Company or any Controlled Entity under the Indemnification Sources. In the event that any of the Indemnitee-Related
Entities shall make any payment to the Indemnitee in respect of indemnification with respect to any Jointly Indemnifiable Claim, (x) the
Company shall, and to the extent applicable shall cause the Controlled Entities to, reimburse the Indemnitee-Related Entity making such
payment to the extent of such payment promptly upon written demand from such Indemnitee-Related Entity, (y) to the extent not previously
and fully reimbursed by the Company and/or any Controlled Entity pursuant to clause (x), the Indemnitee-Related Entity making such payment
shall be subrogated to the extent of the outstanding balance of such payment to all of the rights of recovery of the Indemnitee against
the Company and/or any Controlled Entity, as applicable, and (z) Indemnitee shall execute all papers reasonably required and shall
do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to
enable the Indemnitee-Related Entities effectively to bring suit to enforce such rights. The Company and the Indemnitees agree that each
of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Section 8.1(b), entitled to enforce
this Section 8.1(b) as though each such Indemnitee-Related Entity were a party to this Agreement. The Company shall
cause each of the Controlled Entities to perform the terms and obligations of this Section 8.1(b) as though each such
Controlled Entity was a party to this Agreement. For purposes of this Section 8.1(b), the term “Jointly Indemnifiable
Claims” shall be broadly construed and shall include, without limitation, any indemnified liabilities for which the Indemnitee
shall be entitled to indemnification from both (1) the Company and/or any Controlled Entity pursuant to the Indemnification Sources,
on the one hand, and (2) any Indemnitee-Related Entity pursuant to any other agreement between any Indemnitee-Related Entity and
the Indemnitee pursuant to which the Indemnitee is indemnified, the laws of the jurisdiction of incorporation or organization of any
Indemnitee-Related Entity and/or the certificate of incorporation, certificate of organization, bylaws, partnership agreement, operating
agreement, certificate of formation, certificate of limited partnership or other organizational or governing documents of any Indemnitee-Related
Entity, on the other hand.
(c) Neither
any amendment nor repeal of this Section 8.1, nor the adoption of any provision of this Agreement inconsistent with this
Section 8.1, shall eliminate or reduce the effect of this Section 8.1 in respect of any matter occurring, or
any action or proceeding accruing or arising or that, but for this Section 8.1, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
(d) The
rights of any Indemnitee to indemnification pursuant to this Section 8.1 will be in addition to any other rights any such
Person may have under any other Section of this Agreement or any other agreement or instrument to which such Indemnitee is or becomes
a party or is or otherwise becomes a beneficiary or under law or regulation or under the certificate of limited partnership, limited
partnership agreement, certificate of incorporation or bylaws (or equivalent governing documents) of the Company or any of its Subsidiaries.
Section 8.2. Insurance.
The Company shall maintain in effect at all times directors’ and officers’ liability insurance reasonably satisfactory to
the Board.
Article IX
MISCELLANEOUS
Section 9.1. Entire
Agreement; Third Party Beneficiaries. This Agreement (including any exhibits hereto) and the other documents and agreements referred
to herein and therein (including any agreement pursuant to which any Security was granted or issued) constitute the entire understanding
and agreement among the parties hereto as to restrictions on the transferability of Securities and the other matters covered herein and
therein and supersedes and replaces any prior understanding, agreement or statement of intent, in each case, written or oral, of any
and every nature with respect thereto. In the event of any inconsistency between this Agreement and any document executed or delivered
to effect the purposes of this Agreement, this Agreement shall govern as among the parties hereto. Except for Section 8.1
and Article VII (which will also be for the benefit of the applicable Persons set forth therein that are not parties to this
Agreement, and any such Person will have the rights provided for therein), this Agreement does not create any rights, claims or benefits
inuring to any Person that is not a party hereto, and it does not create or establish any third party beneficiary hereto.
Section 9.2. Specific
Performance. Subject to Section 5.10, the parties hereto agree that the obligations imposed on them in this Agreement
are special, unique and of an extraordinary character, and that, in the event of breach by any party, damages would not be an adequate
remedy and each of the other parties shall be entitled to specific performance and injunctive and other equitable relief in addition
to any other remedy to which it may be entitled, at law or in equity. The parties hereto further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief.
Section 9.3. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts
entered into and performed entirely within such State.
Section 9.4. Submission
to Jurisdiction.
(a) Each
of the parties hereto hereby irrevocably acknowledges and consents that any legal action or proceeding brought with respect to any of
the obligations arising under or relating to this Agreement may be brought in the courts of the State of Delaware or in the United States
District Court for the District of Delaware and each of the parties hereto hereby irrevocably submits to and accepts with regard to any
such action or proceeding, for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the
aforesaid courts. Each party hereby further irrevocably waives any claim that any such courts lack jurisdiction over such party, and
agrees not to plead or claim, in any legal action or proceeding with respect to this Agreement or the transactions contemplated hereby
brought in any of the aforesaid courts, that any such court lacks jurisdiction over such party. Each party irrevocably consents to the
service of process in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid,
to such party, at its address for notices as provided in Section 9.12 of this Agreement, such service to become effective
ten (10) days after such mailing. Each party hereby irrevocably 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 other documents contemplated hereby
that service of process was in any way invalid or ineffective. Subject to Section 9.4(b), the foregoing shall not limit the
rights of any party to serve process in any other manner permitted by applicable law. The foregoing consents to jurisdiction shall not
constitute general consents to service of process in the State of Delaware for any purpose except as provided above and shall not be
deemed to confer rights on any Person other than the respective parties to this Agreement.
(b) Each
of the parties hereto hereby waives any right it may have under the laws of any jurisdiction to commence by publication any legal action
or proceeding with respect to this Agreement. To the fullest extent permitted by applicable law, each of the parties hereto hereby irrevocably
waives the objection which it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement in any of the courts referred to in Section 9.4(a) and hereby further irrevocably waives
and agrees not to plead or claim that any such court is not a convenient forum for any such suit, action or proceeding.
(c) The
parties hereto agree that any judgment obtained by any party hereto or its successors or assigns in any action, suit or proceeding referred
to above may, in the discretion of such party (or its successors or assigns), be enforced in any jurisdiction, to the extent permitted
by applicable law.
Section 9.5. Obligations.
All obligations hereunder shall be satisfied in full without set-off, defense or counterclaim.
Section 9.6. Consents,
Approvals and Actions. If any consent, approval or action of the H&F Stockholders is required at any time pursuant to this Agreement,
such consent, approval or action shall be deemed given if the holders of a majority of the outstanding Shares held by the H&F Stockholders
at such time provide such consent, approval or action in writing at such time.
Section 9.7. Amendments.
(a) This
Agreement may be amended, restated, modified or waived, in whole or in part, at any time pursuant to an agreement in writing executed
by the Company and the H&F Stockholders; provided, that, subject to Section 9.7(b) below:
(i) any
amendment, restatement, modification or waiver of this Agreement shall also require the Employee Stockholders Approval if such amendment
or modification would materially and adversely affect the Employee Stockholders without similarly and proportionately adversely affecting
all Stockholders similarly situated; provided, that the Employee Stockholders Approval shall not be required to amend or modify
any of the following sections unless such amendment or modification would adversely affect the Employee Stockholders: Section 4.2(b) or
Section 4.3 (Restrictions on Transfer), Article V (Registration Rights) or this Section 9.7 (Amendments)
(in each case including the definitions used therein);
(ii) no
such amendment, restatement, modification or waiver requiring the Employee Stockholders Approval pursuant to clause (i) shall be
effective as to a particular Employee Stockholder if such amendment or modification would materially and adversely affect such Employee
Stockholder without similarly and proportionately adversely affecting all Employee Stockholders similarly situated, unless such Employee
Stockholder has voted in favor thereof;
(iii) in
the event the H&F Stockholders no longer hold any Shares, this Agreement may be amended, restated, modified or waived with the written
consent of (A) the Company and (B) the Stockholders holding a majority of the Shares held by the Stockholders; and
(iv) notwithstanding
anything herein to the contrary, including this Section 9.7(a), any amendment, restatement, modification or waiver that has
the effect of adversely affecting the rights of the H&F Stockholders under Section 3.1 (Board of Directors), Article V
(Registration Rights), Section 6.2 (Other Businesses; Waiver of Certain Duties), Section 6.4 (Reimbursement), Article VIII
(Indemnification), Section 9.6 (Consents, Approvals and Actions), Section 9.11 (Termination; Effect of Termination),
Section 9.14 (Aggregation of Securities), Section 9.15 (No Third Party Liabilities), Section 9.16
(Independent Nature of Stockholders’ Obligations and Rights), Section 9.19 (Logo) or this Section 9.7 (Amendments)
shall, in each case, require the prior written consent of the H&F Stockholders.
(b) Notwithstanding
anything to the contrary in Section 9.7(a), in addition to other amendments or modifications authorized herein, amendments
or modifications may be made to this Agreement from time to time by the Company and the H&F Stockholders without the consent of any
other Stockholder or group of Stockholders, (i) to correct typographical or ministerial errors, (ii) to add or delete any provision
of this Agreement required to be added or deleted in order to comply with, or avoid a violation of, applicable law, (iii) in connection
with the admission of any Person as an additional Stockholder, to provide such Persons with (w) the right to nominate one or more
directors to the Board, (x) consent or other protective rights with respect to potential actions by the Company and/or its Subsidiaries
(and the grant of such rights to the H&F Stockholders) and (y) the pro rata right to participate in (or be subject to
or receive) the rights set forth in Article V and/or Section 9.7 of this Agreement; (iv) to fix for any
new class or series of Securities such voting powers, distinctive designations, preferences and relative, participating, optional or
other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in such amendment;
and (v) to cure any ambiguity or correct or supplement any provision of this Agreement that may be incomplete or inconsistent with
any other provision contained in this Agreement; provided, that such amendment does not materially and adversely affect any Stockholder
without similarly and proportionately adversely affecting all Stockholders similarly situated, unless such Stockholder has voted in favor
thereof.
Section 9.8. Assignment
of Rights by the H&F Stockholders. Notwithstanding anything in this Agreement to the contrary, the H&F Stockholders shall
have the right to assign any or all of their rights under this Agreement to any Person or Persons to whom an H&F Stockholder or transfers
Securities in compliance with Article IV.
Section 9.9. Subsequent
Acquisition of Securities. Any Securities acquired subsequent to the date hereof by a Stockholder shall be subject to the terms and
conditions of this Agreement and such securities shall be considered to be “Shares”, “Securities” and/or “Share
Equivalents,” as applicable, as such terms are used herein for purposes of this Agreement.
Section 9.10. Binding
Effect. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon,
the parties’ successors and permitted assigns.
Section 9.11. Termination;
Effect of Termination. Subject to the last sentence of this Section 9.11, the rights and obligations of a Stockholder
shall automatically terminate without any further action upon from and after such time as such Stockholder no longer owns Securities.
This Agreement shall terminate automatically upon the earliest to occur of (i) such time that the H&F Stockholders collectively
no longer own any Securities, (ii) the written consent of the H&F Stockholders and the holders of a majority of the issued and
outstanding Securities held by the Non-H&F Stockholders and (iii) the dissolution or liquidation of the Company. This Article IX,
Section 5.7, Section 6.2, Section 6.4 (until all applicable fees, costs and/or expenses have been paid
or reimbursed by the Company) and Article VIII shall survive any termination of this Agreement, and any termination of rights
and obligations of a Stockholder, in each case pursuant to this Section 9.11.
Section 9.12. Notices.
(a) Any
and all notices, consents, designations, offers, acceptances or other communications required, or contemplated under, or otherwise provided
for, herein shall be given in writing unless otherwise specified herein, by personal delivery or email, or overnight delivery service,
which shall be addressed, in the case of the Company to the address set forth below, and, in the case of any Stockholder, (x) to
such Stockholder’s address appearing on the signature page of such Stockholder to this Agreement or appearing in the Joinder
Agreement entered into by such Stockholder, (y) to such party’s address appearing in the books of the Company and/or (z) such
other address as may be designated by such party in writing to the Company.
If to the Company, to:
Snap One Holdings Corp.
1800 Continental Blvd, Suite 300
Charlotte, NC 28273
Attention: [●]
Email: [●]
with a copy (which shall not constitute actual or constructive
notice) to:
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, California 94304
Attn: [
]
Email: [
]
(b) Any
demand, notice or other communication given by personal delivery shall be conclusively deemed to have been given on the day of actual
delivery thereof (with confirmation of receipt), and, if given by email, subject to receipt of non-automated confirmation of receipt,
on the day of transmittal thereof if given during the normal business hours of the recipient, and on the Business Day during which such
normal business hours next occur if not given during such hours on any day, and one (1) Business Day after sending if by overnight
delivery service.
(c) Each
party shall have the right to change its address set forth in the books and records maintained by the Company by delivering notice complying
with the foregoing provisions of this Section 9.12 to the Company.
Section 9.13. Severability.
If any portion of this Agreement shall be declared void or unenforceable by any court or administrative body of competent jurisdiction,
such portion shall be deemed severable from the remainder of this Agreement, which shall continue in all respects valid and enforceable.
Section 9.14. Aggregation
of Securities. All Securities beneficially owned by the H&F Stockholders shall be aggregated together for purposes of determining
the rights or obligations of any member of the H&F Stockholders or the application of any restrictions to any member of H&F Stockholders
under this Agreement in each instance in which such right, obligation or restriction is determined by any ownership threshold.
Section 9.15. No
Third Party Liabilities. This Agreement may only be enforced against the named parties hereto. All claims or causes of action (whether
in contract or tort) that may be based upon, arise out of or relate to any of this Agreement, or the negotiation, execution or performance
of this Agreement (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter
into this Agreement), may be made only against the entities that are expressly identified as parties hereto, as applicable; and no past,
present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, portfolio company in which any
such party or any of its investment fund Affiliates have made a debt or equity investment (and vice versa), agent, attorney or representative
of any party hereto (including any Person negotiating or executing this Agreement on behalf of a party hereto), unless a party to this
Agreement, shall have any liability or obligation with respect to this Agreement or with respect any claim or cause of action (whether
in contract or tort) that may arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement
(including a representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement).
Section 9.16. Independent
Nature of Stockholders’ Obligations and Rights. Each Stockholder and the Company agrees that the arrangements contemplated
by this Agreement are not intended to constitute the formation of a “group” (as defined in section 13(d)(3) of the Exchange
Act). Each Stockholder agrees that, for purposes of determining beneficial ownership of such Stockholder, it shall disclaim any beneficial
ownership by virtue of this Agreement of the Shares owned by the other Stockholders (other than, in the case of the H&F Stockholders,
as amongst the Stockholders within such defined group), and the Company agrees to recognize any such disclaimer in its Exchange Act and
Securities Act reports. The obligations of each Stockholder under this Agreement are several and not joint with the obligations of any
other Stockholder, and no Stockholder shall be responsible in any way for the performance of the obligations of any other Stockholder
under this Agreement. Nothing contained herein, and no action taken by any Stockholder pursuant hereto, shall be deemed to constitute
the Stockholders as, and the Company acknowledges that the Stockholders do not so constitute, a partnership, an association, a joint
venture or any other kind of group or entity, or create a presumption that the Stockholders are in any way acting in concert or as a
group or entity with respect to such obligations or the transactions contemplated by this Agreement and the Company acknowledges that
the Stockholders are not acting in concert or as a group, and the Company shall not assert any such claim, in each case, with respect
to such obligations or the transactions contemplated by this Agreement. The decision of each Stockholder to enter into this Agreement
has been made by such Stockholder independently of any other Stockholder. Each Stockholder acknowledges that no other Stockholder has
acted as agent for such Stockholder in connection with such Stockholder making its investment in the Company and that no other Stockholder
will be acting as agent of such Stockholder in connection with monitoring such Stockholder’s investment in the Shares or enforcing
its rights under this Agreement. The Company and each Stockholder confirms that each Stockholder has had the opportunity to independently
participate with the Company and its subsidiaries in the negotiation of the transaction contemplated hereby with the advice of its own
counsel and advisors. Each Stockholder shall be entitled to independently protect and enforce its rights, including, without limitation,
the rights arising out of this Agreement, and it shall not be necessary for any other Stockholder to be joined as an additional party
in any proceeding for such purpose. The use of a single agreement to effectuate the rights and obligations contemplated hereby was solely
in the control of the Company, not the action or decision of any Stockholder, and was done solely for the convenience of the Company
and its subsidiaries and not because the Company was required to do so by any Stockholder. It is expressly understood and agreed that
each provision contained in this Agreement is between the Company and a Stockholder, solely, and not between the Company and the Stockholders
collectively and not between and among the Stockholders.
Section 9.17. Effectiveness.
This Agreement shall become effective on the day immediately preceding the date on which a registration statement on Form 8-A, or
any successor form thereto, with respect to the Common Stock first becomes effective under the Exchange Act. This Agreement shall automatically
terminate if the Underwriting Agreement is terminated prior to the completion of the Initial Public Offering referenced therein for any
reason or the Initial Public Offering contemplated by the Underwriting Agreement is not consummated on or before the tenth (10th)
Business Day following the date of this Agreement.
Section 9.18. Counterparts;
Electronic Delivery. This Agreement and any other notices and other documents delivered pursuant to this Agreement may be executed
and delivered in one or more counterparts and by fax, email or other electronic transmission, each of which shall be deemed an original
and all of which shall be considered one and the same agreement. No party hereto shall raise the use of a fax machine or email to deliver
a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine
or email as a defense to the formation or enforceability of a contract and each party to this Agreement forever waives any such defense.
The words “execution,” “signed,” “signature,” “delivery,” and words of like import in
or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures,
deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and
the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section 9.19. Logo.
The Company hereby irrevocably consents to the use of its and its Subsidiaries’ trademarks (including logos, as well as trade names)
by each of the H&F Stockholders in relation to its investment business, including in reports to investors and potential investors,
on its website or other online fora or media, and/or in offering memoranda and other marketing materials for its related investment funds
or Affiliates.
Section 9.20. Waiver
of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH PARTY HEREBY IRREVOCABLY WAIVES, AND COVENANTS
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING IN WHOLE OR IN PART UNDER, RELATED TO, BASED ON OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE SUBJECT MATTER HEREOF, WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 9.20
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Section 9.21. Reinstatement
of Terms of Unitholders Agreement. The parties hereto hereby agree that in the event this Agreement becomes effective but is subsequently
terminated pursuant to Section 9.17, the parties shall execute a stockholders agreement with terms that are substantially
equivalent (to the extent practicable) to, mutatis mutandis, the terms of the Unitholders Agreement.
[Remainder of page intentionally
left blank]
IN WITNESS WHEREOF, each of the undersigned has
executed this Agreement or caused this Agreement to be signed by its officer thereunto duly authorized as of the date first written above.
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COMPANY:
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SNAP ONE HOLDINGS CORP.
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By:
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Name:
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Title:
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IN WITNESS WHEREOF, each of the undersigned has
executed this Agreement or caused this Agreement to be signed by its officer thereunto duly authorized as of the date first written above.
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INITIAL H&F STOCKHOLDERS:
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[______________________]
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By:
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[______________________]
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By:
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[______________________]
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By:
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Name:
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Title:
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Address:
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c/o Hellman & Friedman LLC
415 Mission Street, Suite 5700
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San Francisco, CA 94105
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Attn: [ ]
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Email: [ ]
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with a copy (which shall not constitute actual or constructive notice) to:
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Simpson Thacher & Bartlett LLP
2475 Hanover Street
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Palo Alto, California 94304
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Attn: [ ]
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Email: [ ]
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IN WITNESS WHEREOF, each of the undersigned has
executed this Agreement or caused this Agreement to be signed by its officer thereunto duly authorized as of the date first written above.
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[ADDITIONAL SIGNATURES TO COME]
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Exhibit A
JOINDER AGREEMENT
The undersigned is executing and delivering this
omnibus joinder agreement (this “Joinder Agreement”) pursuant to the Stockholders Agreement of Snap One Holdings Corp.,
a Delaware corporation, dated as of [●], 2021 (as may be amended, supplemented, restated or modified from time to time in accordance
with its terms, the “Stockholders Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall
have the respective meanings ascribed to them in the Stockholders Agreement.
By executing and delivering this Joinder Agreement,
the undersigned hereby adopts and approves the Stockholders Agreement and agrees, effective commencing on the date on which the undersigned
first becomes the owner of any Shares, to become a party to, to be bound by, to comply with, and that his, her or its Shares are subject
to the Stockholders Agreement in the same manner as if the undersigned were an original signatory to such agreement as a Stockholder.
The undersigned expressly acknowledges and agrees
that the undersigned shall not be entitled to any rights pursuant to the Stockholders Agreement unless the undersigned shall have executed
and delivered this Joinder Agreement.
Accordingly, the undersigned has executed and
delivered this Joinder Agreement as of the __ day of ____________, 202_.
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Signature
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Print Name
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Exhibit B
CONSENT OF SPOUSE
I, _________________, the undersigned spouse of
_________________, hereby acknowledge that I am aware that the Stockholders Agreement of Snap One Holdings Corp., a Delaware corporation,
dated as of [●], 2021 (as may be amended, supplemented, restated or modified from time to time in accordance with its terms, the
“Stockholders Agreement”), imposes certain transfer obligations and restrictions on my spouses’ Shares (as defined
in the Stockholders Agreement). I agree that my spouse’s interest in the Shares are subject to the Stockholders Agreement and any
interest I may have in such Shares shall also be irrevocably bound by such Stockholders Agreement and, further, that my community property
interest in such Stockholders Agreement, if any, shall be similarly bound by such Stockholders Agreement.
I am aware that the legal, financial and other matters
contained in the Stockholders Agreement are complex and I am encouraged to seek advice with respect thereto from independent legal and/or
financial counsel. I have either sought such advice or determined after carefully reviewing the Stockholders Agreement that I hereby
waive such right.
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Acknowledged and agreed this ___ day of _____, 202_
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Insert Signature of Spouse Above
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Provide Address of Spouse Below:
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Exhibit C
[SPECIFIED STOCKHOLDERS]
Exhibit D
SPECIFIED MANAGEMENT STOCKHOLDERS
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Management
Stockholder
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No.
of Shares
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[●]
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Exhibit 10.2
EXECUTION VERSION
CREDIT AGREEMENT
Dated as of August 4, 2017
among
CRACKLE PURCHASER CORP.,
as Holdings,
CRACKLE MERGER SUB I CORP.,
as the initial Borrower, which on the Closing Date shall
be merged with and into an entity to be renamed WIREPATH LLC (with the entity
to be
renamed WIREPATH LLC as the surviving entity of such merger and the Borrower)
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
UBS AG, STAMFORD BRANCH,
as Administrative Agent, Collateral
Agent and Swingline Lender,
UBS SECURITIES LLC and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint
Bookrunners for the Initial Term Loan Facility
UBS SECURITIES LLC and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint
Bookrunners for the Revolving Credit Facility
Table of Contents
Page
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SECTION 1. DEFINITIONS
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2
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1.1
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Defined Terms
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2
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1.2
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Other Interpretive Provisions
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73
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1.3
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Accounting Terms
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74
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1.4
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Rounding
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74
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1.5
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References to Agreements, Laws, Etc.
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75
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1.6
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Times of Day
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75
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1.7
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Timing of Payment or Performance
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75
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1.8
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Currency Equivalents Generally
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75
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1.9
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Classification of Loans and Borrowings
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75
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1.10
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Letter of Credit Amounts
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76
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1.11
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Limited Condition Acquisitions
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76
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1.12
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Pro Forma and Other Calculations
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77
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SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITIES
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79
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2.1
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Loans
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79
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2.2
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Minimum Amount of Each Borrowing; Maximum Number of Borrowings
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80
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2.3
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Notice of Borrowing
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81
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2.4
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Disbursement of Funds
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82
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2.5
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Repayment of Loans; Evidence of Debt
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82
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2.6
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Conversions and Continuations
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84
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2.7
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Pro Rata Borrowings
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84
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2.8
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Interest
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85
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2.9
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Interest Periods
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85
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2.10
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Increased Costs, Illegality, Etc.
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86
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2.11
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Compensation
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88
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2.12
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Change of Lending Office
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88
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Page
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2.13
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Notice of Certain Costs
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88
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2.14
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Incremental Facilities
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88
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2.15
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Extensions of Term Loans, Revolving Credit Loans and Revolving Credit Commitments and Additional/Replacement Revolving Credit Loans and Additional/Replacement Revolving Credit Commitments
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92
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2.16
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Defaulting Lenders
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95
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2.17
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Term Loan Exchange Notes
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97
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SECTION 3. LETTERS OF CREDIT
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99
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3.1
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Issuance of Letters of Credit
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99
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3.2
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Letter of Credit Requests
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100
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3.3
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Letter of Credit Participations
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101
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3.4
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Agreement to Repay Letter of Credit Drawings
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103
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3.5
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Increased Costs
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104
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3.6
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New or Successor Letter of Credit Issuer
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104
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3.7
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Role of Letter of Credit Issuer
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105
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3.8
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Cash Collateral
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106
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3.9
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Conflict with Issuer Documents
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106
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3.10
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Letters of Credit Issued for Restricted Subsidiaries
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106
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3.11
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Other
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107
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3.12
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Applicability of ISP and UCP
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107
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SECTION 4. FEES; COMMITMENT REDUCTIONS AND TERMINATIONS
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108
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4.1
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Fees
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108
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4.2
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Voluntary Reduction of Commitments
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109
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4.3
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Mandatory Termination of Commitments
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109
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SECTION 5. PAYMENTS
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110
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5.1
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Voluntary Prepayments
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110
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5.2
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Mandatory Prepayments
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111
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5.3
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Method and Place of Payment
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116
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5.4
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Net Payments
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116
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Page
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5.5
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Computations of Interest and Fees
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118
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5.6
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Limit on Rate of Interest
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119
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SECTION 6. CONDITIONS PRECEDENT TO INITIAL CREDIT EVENT
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119
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6.1
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Credit Documents
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119
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6.2
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Collateral
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120
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6.3
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Legal Opinions
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120
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6.4
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Structure and Terms of the Transaction; No Material Adverse Effect
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121
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6.5
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Closing Certificates
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121
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6.6
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Corporate Proceedings
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121
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6.7
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Corporate Documents
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121
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6.8
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Solvency Certificate
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121
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6.9
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Financial Statements
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121
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6.10
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PATRIOT ACT
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121
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6.11
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Fees and Expenses
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121
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6.12
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Specified Representations
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122
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SECTION 7. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS
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122
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7.1
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No Default; Representations and Warranties
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122
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7.2
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Notice of Borrowing; Letter of Credit Request
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122
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SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
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122
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8.1
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Corporate Status
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123
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8.2
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Corporate Power and Authority; Enforceability
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123
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8.3
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No Violation
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123
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8.4
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Litigation
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123
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8.5
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Margin Regulations
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123
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8.6
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Governmental and Third Party Approvals
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123
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8.7
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Investment Company Act
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124
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8.8
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True and Complete Disclosure
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124
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8.9
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Financial Statements
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124
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Page
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8.10
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Tax Returns and Payments, Etc.
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125
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8.11
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Compliance with ERISA
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125
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8.12
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Subsidiaries
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125
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8.13
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Intellectual Property
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126
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8.14
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Environmental Laws
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126
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8.15
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Properties, Assets and Rights
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126
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8.16
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Solvency
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126
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8.17
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Material Adverse Change
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127
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8.18
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Use of Proceeds
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127
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8.19
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Anti-Corruption Laws
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127
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8.20
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Sanctioned Persons
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127
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8.21
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PATRIOT Act
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127
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8.22
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Labor Matters
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127
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8.23
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Subordination of Junior Financing
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127
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8.24
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No Default
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127
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SECTION 9. AFFIRMATIVE COVENANTS
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128
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9.1
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Information Covenants
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128
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9.2
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Books, Records and Inspections
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130
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9.3
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Maintenance of Insurance
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131
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9.4
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Payment of Taxes
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131
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9.5
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Consolidated Corporate Franchises
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131
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9.6
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Compliance with Statutes
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132
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9.7
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ERISA
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132
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9.8
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Good Repair
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132
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9.9
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End of Fiscal Years; Fiscal Quarters
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133
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9.10
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Additional Guarantors and Grantors
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133
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9.11
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Pledges of Additional Stock and Evidence of Indebtedness
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133
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9.12
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Use of Proceeds
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133
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Page
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9.13
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Changes in Business
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134
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9.14
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Further Assurances
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134
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9.15
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Designation of Subsidiaries
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135
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9.16
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Maintenance of Ratings
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136
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9.17
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Post-Closing Obligations
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136
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SECTION 10. NEGATIVE COVENANTS
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136
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10.1
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Limitation on Indebtedness
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136
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10.2
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Limitation on Liens
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144
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10.3
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Limitation on Fundamental Changes
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149
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10.4
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Limitation on Sale of Assets
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150
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10.5
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Limitation on Investments
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154
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10.6
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Limitation on Restricted Payments
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159
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10.7
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Limitations on Debt Payments and Amendments
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164
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10.8
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Negative Pledge Clauses
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165
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10.9
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Passive Holding Company; Etc.
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167
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10.10
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Consolidated First Lien Debt to Consolidated EBITDA Ratio
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168
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10.11
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Transactions with Affiliates
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168
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SECTION 11. EVENTS OF DEFAULT
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171
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11.1
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Payments
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171
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11.2
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Representations, Etc.
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171
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11.3
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Covenants
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171
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11.4
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Default Under Other Agreements
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172
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11.5
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Bankruptcy, Etc.
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172
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11.6
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ERISA
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173
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11.7
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Guarantee
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173
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11.8
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Security Document
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173
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11.9
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Judgments
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173
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11.10
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Change of Control
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173
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11.11
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Borrower’s Right to Cure
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174
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Page
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SECTION 12. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
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175
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12.1
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Appointment
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175
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12.2
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Limited Duties
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175
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12.3
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Binding Effect
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175
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12.4
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Delegation of Duties
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176
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12.5
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Exculpatory Provisions
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176
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12.6
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Reliance by Administrative Agent
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176
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12.7
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Notice of Default
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177
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12.8
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Non-Reliance on Administrative Agent and Other Lenders
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177
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12.9
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Indemnification
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177
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12.10
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Agent in Its Individual Capacity
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177
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12.11
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Successor Agent
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178
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12.12
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Withholding Tax
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179
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12.13
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Duties as Collateral Agent and as Paying Agent
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179
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12.14
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Authorization to Release Liens and Guarantees
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179
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12.15
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Intercreditor Agreements
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179
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12.16
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Secured Cash Management Agreements and Secured Hedge Agreements
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180
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12.17
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Administrative Agent May File Proofs of Claim
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180
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SECTION 13. MISCELLANEOUS
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181
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13.1
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Amendments and Waivers
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181
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13.2
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Notices; Electronic Communications
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183
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13.3
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No Waiver; Cumulative Remedies
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186
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13.4
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Survival of Representations and Warranties
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186
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13.5
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Payment of Expenses; Indemnification
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187
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13.6
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Successors and Assigns; Participations and Assignments
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188
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13.7
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Replacements of Lenders Under Certain Circumstances
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194
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13.8
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Adjustments; Set-off
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195
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Page
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13.9
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Counterparts
|
196
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13.10
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Severability
|
196
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13.11
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Integration
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196
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13.12
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GOVERNING LAW
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196
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13.13
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Submission to Jurisdiction; Waivers
|
197
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13.14
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Acknowledgments
|
197
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13.15
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WAIVERS OF JURY TRIAL
|
197
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13.16
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Confidentiality
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198
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13.17
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Release of Collateral and Guarantee Obligations; Subordination of Liens
|
198
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13.18
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USA PATRIOT ACT
|
199
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13.19
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Legend
|
199
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13.20
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Payments Set Aside
|
200
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13.21
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Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
200
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13.22
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Execution by Target, Amplify and Subsidiaries
|
200
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SCHEDULES
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Schedule 1.1(a)
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Commitments of Lenders
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Schedule 1.1(b)
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Existing Letters of Credit
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Schedule 1.1(c)
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Mortgaged Property
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Schedule 8.12
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Subsidiaries
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Schedule 8.15
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Owned Real Property
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Schedule 9.17
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Post-Closing Obligations
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Schedule 10.1
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Indebtedness
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Schedule 10.2
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Liens
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Schedule 10.4
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Dispositions
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Schedule 10.5
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Investments
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Schedule 10.8
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Negative Pledge Clauses
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Schedule 10.11
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Transactions with Affiliates
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Schedule 13.2
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Addresses for Notices
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EXHIBITS
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Exhibit A
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Form of Guarantee
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Exhibit B
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Form of Security Agreement
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Exhibit C
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Form of Pledge Agreement
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Exhibit D
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Form of Notice of Borrowing
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Exhibit E
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Form of Closing Certificate
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Exhibit F-1
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Form of Promissory Note (Revolving Credit Loans and Swingline Loans)
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Exhibit F-2
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Form of Promissory Note (Initial Term Loans)
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Exhibit G-1
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Form of Equal Priority Intercreditor Agreement
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Exhibit G-2
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Form of Junior Priority Intercreditor Agreement
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Exhibit H
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Form of Assignment and Acceptance
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Exhibit I
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Form of Affiliated Lender Assignment and Acceptance
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Exhibit J
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Form of Solvency Certificate
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Exhibit K
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Form of United States Tax Compliance Certificate
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Exhibit L
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Form of Intercompany Subordinated Note
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Exhibit M
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Form of Perfection Certificate
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Exhibit N
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Form of Notice of Voluntary Prepayment
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CREDIT AGREEMENT,
dated as of August 4, 2017, among CRACKLE PURCHASER CORP., a Delaware corporation (“Holdings”; as hereinafter
further defined), CRACKLE MERGER SUB I CORP., a Delaware corporation (“Merger Sub”), which on the Closing Date
shall be merged with and into Amplify (with Amplify surviving such merger as the Debt Surviving Company and being renamed WIREPATH
LLC, as the “Borrower”; as hereinafter further defined), the Lenders from time to time party hereto, the Letter
of Credit Issuers from time to time party hereto and UBS AG, STAMFORD BRANCH, as the Administrative Agent, Collateral Agent and
Swingline Lender.
RECITALS:
WHEREAS, capitalized
terms used and not defined in the preamble and these recitals shall have the respective meanings set forth for such terms in Section 1.1
hereof;
WHEREAS, pursuant
to the Acquisition Agreement, (i) Merger Sub will merge with and into Amplify (such merger, the “Amplify Merger”),
with Amplify being the surviving entity of the Amplify Merger (the “Debt Surviving Company”, which shall immediately
thereafter be renamed Wirepath LLC), (ii) Crackle Merger Sub II Corp., a Delaware corporation (“Merger Sub II”), will
merge with and into Amplify Holdings LLC, a Delaware limited liability company (the “Target”; such merger, the “Company
Merger” and, together with the Amplify Merger, the “Mergers”), with the Target being the surviving entity
of the Company Merger and (iii) except with respect to certain equityholders of the Target and its subsidiaries, including management
of the Target and its subsidiaries, who agree to roll over their Capital Stock of the Target and its Affiliates or the cash proceeds they
received from the Transactions into Capital Stock in Holdings or a Parent Entity of Holdings (in such capacity, the “Rollover
Investors”), the GA Equityholders and the equityholders of the Target will receive cash in exchange for their Capital Stock
(including phantom equity units) in the Target and Amplify, respectively, and the former equityholders of the Target will be entitled
to receive the payment in respect of the 2017 Contingent Value Rights, the Deferred Blocker Consideration and the Deferred Company Consideration
(collectively, the “Merger Consideration”);
WHEREAS, (a)
the Sponsor and certain other investors (including the Rollover Investors and certain members of management of the Target and its affiliates)
arranged by and/or designated by the Sponsor will, directly or indirectly, make cash equity contributions through Holdings (or through
one or more Parent Entities of Holdings to Holdings), the net proceeds of which will be further contributed, directly or indirectly,
as cash equity to Merger Sub in exchange for Capital Stock of Merger Sub; provided that any such equity contribution directly
to Merger Sub in a form other than common equity shall be reasonably satisfactory to the Lead Arrangers (the foregoing, collectively,
the “Equity Contribution”), in an aggregate amount equal to, when combined with the Fair Market Value of any Capital
Stock of any of the Rollover Investors rolled over or invested in connection with the Transactions, at least 40.0% of the sum of (1)
the aggregate gross proceeds of the Initial Term Loans and Revolving Credit Loans borrowed on the Closing Date, excluding the aggregate
gross proceeds of (A) any Initial Term Loans and Revolving Credit Loans, in either case borrowed to fund OID and/or upfront fees required
to be funded and (B) any Revolving Credit Loans borrowed to fund any ordinary course working capital needs and (2) the equity capitalization
of the Borrower and its Subsidiaries on the Closing Date, after giving effect to the Transactions and (b) after giving effect to the
Transactions on the Closing Date, the Sponsor will own indirectly at least a majority of the Capital Stock of Holdings;
WHEREAS, in
connection with the foregoing, the Borrower has requested that, immediately upon the satisfaction in full of the applicable conditions
precedent set forth in Section 6 below, the Lenders and Letter of Credit Issuers extend credit to the Borrower in the form of (i) $265,000,000
in aggregate principal amount of Initial Term Loans to be borrowed on the Closing Date (the “Initial Term Loan Facility”)
and (ii) a revolving credit facility in an initial aggregate principal amount of $50,000,000 of Revolving Credit Commitments (the “Revolving
Credit Facility”);
WHEREAS, a
portion of the proceeds of the Initial Term Loans, the Initial Revolving Borrowing Amount and the Equity Contribution will be contributed
as equity and/or loaned, directly or indirectly, to Merger Sub II and, prior to the consummation of the Mergers, General Atlantic (Amplify)
HoldCo LLC, an equityholder of Amplify, will contribute 100% of the outstanding principal amount and accrued interest under an intercompany
loan to Amplify;
WHEREAS, a
portion of the proceeds of the Initial Term Loans and the Initial Revolving Borrowing Amount (to the extent permitted in accordance with
the definition of the term “Permitted Initial Revolving Credit Borrowing Purposes”), together with a portion of the Target’s
and its Subsidiaries’ cash on hand and the proceeds of the Equity Contribution, will be used to pay the Merger Consideration, the
Existing Debt Refinancing and the Transaction Expenses;
WHEREAS, the
Lenders have indicated their willingness to extend such credit and the Letter of Credit Issuers have indicated their willingness to issue
Letters of Credit, in each case on the terms and subject to the conditions set forth below;
WHEREAS, in
connection with the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit contemplated
hereunder, the Borrower has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured
Parties, a first priority lien (such priority subject to Liens permitted hereunder) on substantially all of its assets (except as otherwise
set forth in the Credit Documents), including a pledge of all of the Capital Stock of each of its Subsidiaries (other than any Excluded
Capital Stock); and
WHEREAS, in
connection with the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit contemplated
hereunder, each Guarantor has agreed to guarantee all of its Obligations and to secure its guarantees by granting to the Collateral Agent,
for the benefit of the Secured Parties, a first priority lien (such priority subject to Liens permitted hereunder) on substantially all
of its assets (except as otherwise set forth in the Credit Documents), including a pledge of all of the Capital Stock of each of their
respective Subsidiaries (other than any Excluded Capital Stock).
AGREEMENT:
NOW, THEREFORE,
in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.
Definitions.
1.1
Defined Terms. As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context
otherwise requires:
“2017
Contingent Value Rights” shall have the meaning assigned to such term in the Acquisition Agreement.
“ABR”
shall mean, for any day, a fluctuating rate per annum equal to the highest of (a) the Prime Rate in effect for such day, (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%, (c) the Eurodollar Rate for a one month Interest Period on such day
(or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00% and (d) (i) solely with regard to the
Initial Term Loans, 2.00% and (ii) with regard to the Revolving Credit Loans, 0.00%. If the Administrative Agent shall have determined
(which determination should be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of
the definition thereof, the ABR shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Eurodollar Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar
Rate, as the case may be.
“ABR
Loan” shall mean each Loan bearing interest at the rate provided in Section 2.8(a) and, in any event, shall include all Swingline
Loans.
“Acceptable
Reinvestment Commitment” shall mean a binding commitment of the Borrower or any Restricted Subsidiary entered into at any time
prior to the end of the Reinvestment Period to reinvest the proceeds of an Asset Sale Prepayment Event or Recovery Prepayment Event.
“Accounting
Change” shall mean any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants, equivalent authorities
for IFRS, or, if applicable, the SEC.
“Acquired
EBITDA” shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the
amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Borrower and the Restricted
Subsidiaries in the definition of the term “Consolidated EBITDA” were references to such Pro Forma Entity and its subsidiaries
that will become Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.
“Acquired
Entity or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Acquisition”
shall mean any acquisition by the Borrower or any Restricted Subsidiary, whether by purchase, merger, consolidation, contribution or otherwise,
of (a) at least a majority of the assets or property and/or liabilities (or any other substantial part for which financial statements
or other financial information is available), or a business line, product line, unit or division of, any other Person, (b) Capital Stock
of any other Person such that such other Person becomes a Restricted Subsidiary and (c) additional Capital Stock of any Restricted Subsidiary
not then held by the Borrower or any Restricted Subsidiary.
“Acquisition
Agreement” means the Agreement and Plan of Merger, dated as of June 19, 2017, by and among Holdings, Merger Sub, Merger Sub
II, General Atlantic (Amplify) HoldCo LLC, Amplify, the Target, GA Escrow, LLC, a Delaware limited liability company, solely in its capacity
as the seller representative of the equityholders of Amplify and the Target, and JWF Rollover, LLC, a North Carolina limited liability
company, solely in its capacity as the representative of the equityholders of Amplify and the Target with respect to certain tax matters.
“Acquisition
Consideration” shall mean, in connection with any Acquisition, the aggregate amount (as valued at the Fair Market Value of
such Acquisition at the time such Acquisition is made) of, without duplication: (a) the
purchase consideration paid or payable for such Acquisition, whether payable at or prior to the consummation of such Acquisition or
deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and
including any and all payments representing the purchase price and any assumptions of Indebtedness and/or Guarantee Obligations,
“earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in
any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business and
(b) the aggregate amount of Indebtedness Incurred in
connection with such Acquisition; provided in each case, that any such future payment that is subject to a contingency shall
be considered Acquisition Consideration only to the extent of the reserve, if any, required under GAAP (as determined at the time of
the consummation of such Acquisition) to be established in respect thereof by Holdings, the Borrower or its Restricted
Subsidiaries.
“acquired Person” shall have the meaning
provided in Section 10.1(k)(i)(E).
“Additional Lender” shall have the meaning
provided in Section 2.14(d).
“Additional/Replacement
Revolving Credit Commitment” shall have the meaning provided in Section 2.14(a).
“Additional/Replacement Revolving
Credit Facility” shall mean each Class of Additional/Replacement Revolving Credit Commitments made pursuant to Section 2.14(a).
“Additional/Replacement Revolving
Credit Lender” shall mean, at any time, any Lender that has an Additional/Replacement Revolving Credit Commitment.
“Additional/Replacement
Revolving Credit Loans” shall mean any loan made to the Borrower under a Class of Additional/Replacement Revolving Credit Commitments.
“Adjusted
Total Additional/Replacement Revolving Credit Commitment” shall mean, at any time, with respect to any Class of Additional/Replacement
Revolving Credit Commitments, the Total Additional/Replacement Revolving Credit Commitment for such Class less the aggregate Additional/Replacement
Revolving Credit Commitments of all Defaulting Lenders in such Class.
“Adjusted
Total Extended Revolving Credit Commitment” shall mean, at any time, with respect to any Class of Extended Revolving Credit
Commitments, the Total Extended Revolving Credit Commitment for such Class less the aggregate Extended Revolving Credit Commitments
of all Defaulting Lenders in such Class.
“Adjusted
Total Revolving Credit Commitment” shall mean, at any time, the Total Revolving Credit Commitment less the aggregate Revolving
Credit Commitments of all Defaulting Lenders.
“Administrative
Agent” shall mean UBS AG, Stamford Branch or any successor to UBS AG, Stamford Branch appointed in accordance with the provisions
of Section 12.11, together with its Affiliates that are appointed as sub-agents in accordance with Section 12.4, in each case, as the
administrative agent for the Lenders under this Agreement and the other Credit Documents.
“ Administrative
Agent’s Office” shall mean the office and, as appropriate, the account of the Administrative Agent set forth on Schedule
13.2 or such other office or account as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
“Affiliate”
shall mean, with respect to any specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified. The term “Control” shall mean 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 ownership
of Voting Stock, by agreement or otherwise. The terms “Controlling” and “Controlled” have meanings correlative
thereto.
“Affiliated Lender” shall mean a Non-Debt
Fund Affiliate or a Debt Fund Affiliate.
“Affiliated Lender Assignment and Acceptance”
shall have the meaning provided in Section 13.6(g)(i)(C).
“Agents” shall mean each of the Administrative
Agent and the Collateral Agent.
“Agreement” shall mean this Credit Agreement.
“AHYDO Catch-Up Payment”
shall mean any payment with respect to any obligations of the Borrower or any Restricted Subsidiary, in each case to avoid the application
of Section 163(e)(5) of the Code thereto.
“Amplify” shall mean General Atlantic (Amplify)
LLC, a Delaware limited liability company.
“Amplify Merger” shall have the meaning
provided in the recitals to this Agreement.
“Applicable
Laws” shall mean, as to any Person, any international, foreign, provincial, territorial, federal, state, municipal, and local
law (including common law and Environmental Laws), statute, regulation, by-law, ordinance, treaty, rule, order, code, regulation, decree,
guideline, judgment, consent decree, writ, injunction, settlement agreement, governmental requirement and administrative or judicial precedents
enacted, promulgated or imposed or entered into or agreed by any Governmental Authority, in each case applicable to or binding on such
Person or any of its property or assets or to which such Person or any of its property or assets is subject.
“Applicable
Margin” shall mean (a) with respect to any Initial Term Loans 5.25% for Eurodollar Loans and 4.25% for ABR Loans and (b) with
respect to the Revolving Credit Loans and Swingline Loans, the following percentages per annum, based upon the Consolidated First Lien
Debt to Consolidated EBITDA Ratio as set forth in the most recent certificate delivered to the Administrative Agent pursuant to Section
9.1(d):
|
Pricing Level
|
Consolidated First Lien
Debt
to Consolidated
EBITDA Ratio
|
Applicable
Margin for
Revolving Credit Loans
that are Eurodollar
Loans
|
Applicable
Margin for
Revolving Credit
Loans
that are ABR Loans
and Swingline Loans
|
|
1
|
Greater than 4.75:1.00
|
5.25%
|
4.25%
|
|
2
|
Less than or equal to 4.75:1.00 but greater than 4.25:1.00
|
5.00%
|
4.00%
|
|
3
|
Less than or equal to 4.25:1.00
|
4.75%
|
3.75%
|
Notwithstanding
anything to the contrary in this definition, during the period from the Closing Date until the Initial Financial Statement Delivery Date,
the Applicable Margin for Initial Term Loans, Revolving Credit Loans and Swingline Loans shall be determined by reference to the applicable
“Pricing Level 1” set forth in the tables above. Any increase or decrease in the Applicable Margin for Initial Term Loans,
Revolving Credit Loans and Swingline Loans resulting from a change in the Consolidated First Lien Debt to Consolidated EBITDA Ratio shall
become effective as of the first Business Day immediately following the date the certificate delivered pursuant to Section 9.1(d) is
delivered to the Administrative Agent; provided that, at the option of the Required Lenders, the highest pricing level (as set
forth in the tables above) shall apply (a) as of the first Business Day after the date on which Section 9.1 Financials were required
to have been delivered but have not been delivered pursuant to Section 9.1 and shall continue to so apply to and including the date on
which such Section 9.1 Financials are so delivered (and thereafter the pricing level otherwise determined in accordance with this definition
shall apply) and (b) as of the first Business Day after an Event
of Default under Section 11.1 or Section 11.5 shall have occurred and be continuing and, in the case of Section 11.1, the Administrative
Agent has notified the Borrower that the highest pricing level applies, and shall continue to so apply to but excluding the date on which
such Event of Default shall cease to be continuing (and thereafter the pricing level otherwise determined in accordance with this definition
shall apply).
In the event
that the Administrative Agent and the Borrower determine that any Section 9.1 Financials previously delivered were incorrect or inaccurate
(regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected,
would have led to the application of a higher Applicable Margin for Initial Term Loans, Revolving Credit Loans and/or Swingline Loans
for any period (an “Applicable Period”) than the Applicable Margin for Initial Term Loans, Revolving Credit Loans and/or
Swingline Loans, as applicable, applied for such Applicable Period, then (a) the Borrower shall as soon as practicable deliver to the
Administrative Agent the correct Section 9.1 Financials for such Applicable Period, (b) the Applicable Margin for Initial Term Loans,
Revolving Credit Loans and/or Swingline Loans, as applicable, shall be determined as if the pricing level for such higher Applicable Margin
for Initial Term Loans, Revolving Credit Loans and/or Swingline Loans, as applicable, was applicable for such Applicable Period, and (c)
the Borrower shall within 10 Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional
interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by
the Administrative Agent in accordance with this Agreement. This paragraph shall not limit the rights of the Administrative Agent and
Lenders with respect to Section 2.8(c) and Section 11.
“Applicable Period” shall have the meaning
provided in the definition of the term “Applicable Margin”.
“Approved Foreign Bank”
shall have the meaning provided in the definition of the term “Cash Equivalents”.
“Approved Fund” shall have the meaning
provided in Section 13.6(b).
“Asset
Sale Prepayment Event” shall mean any Disposition (or series of related Dispositions) of any business unit, asset or property
of the Borrower or any Restricted Subsidiary (including any Disposition of any Capital Stock of any Subsidiary of the Borrower owned by
the Borrower or any Restricted Subsidiary); provided that the term “Asset Sale Prepayment Event” shall include only
Dispositions (or a series of related Dispositions) (including any Disposition of any Capital Stock of any Subsidiary of Holdings owned
by the Borrower or a Restricted Subsidiary) made pursuant to clauses (c), (d)(ii), (g), (j), (q), (r) and (t) of Section 10.4.
“Assignment
and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 13.6) substantially in the form of Exhibit H or such other form as shall be reasonably acceptable
to the Borrower and the Administrative Agent.
“Authorized
Officer” shall mean the Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, the
Chief Operating Officer, the Treasurer, any Manager, any Vice President, the Assistant Treasurer, with respect to certain limited liability
companies or partnerships that do not have officers, any manager, managing member, managing director, general partner or authorized signatory
thereof, any other senior officer of Holdings, the Borrower or any other Credit Party designated as such in writing to the Administrative
Agent by Holdings, the Borrower or any other Credit Party, as applicable, and, with respect to any document (other than the solvency certificate)
delivered on the Closing Date, the Secretary or the Assistant Secretary of any Credit Party, and, solely for purposes of notices given
pursuant to Sections 2, 3, 4 or 5, any other officers of the applicable Credit Party so designated by any of the foregoing Persons in
a notice to the Administrative Agent or any other officer of the applicable Credit Party designated in or pursuant to an agreement between
the applicable Credit Party and the Administrative Agent. Any document delivered hereunder that is signed by an Authorized Officer shall
be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action
on the part of Holdings, the Borrower or any other Credit Party and such Authorized Officer shall be conclusively presumed to have acted
on behalf of such Person.
“Auto-Extension Letter of Credit” shall
have the meaning provided in Section 3.2(e).
“Available Amount”
shall mean, at any time (the “Available Amount Reference Time”) an amount equal at such time to (a) the sum (which
shall not be less than zero) of, without duplication:
(i)
[reserved];
(ii)
the amount (which amount shall not be less than zero) equal to 50% of the Cumulative Consolidated Net Income of the Borrower and
the Restricted Subsidiaries,
(iii)
the amount (which amount shall not be less than zero) equal to 50% of the Deferred Revenues of the Borrower and the Restricted
Subsidiaries,
(iv)
to the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount of all Returns
(to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary from any Investment to the extent
such Investment was made by using the Available Amount during the period from and including the Business Day immediately following the
Closing Date through and including the Available Amount Reference Time (other than the portion of any such dividends and other distributions
that is used by the Borrower or any Restricted Subsidiary to pay taxes related to such amounts);
(v)
to the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount of all repayments
made in cash or Cash Equivalents of principal received by the Borrower or any Restricted Subsidiary from any Investment to the extent
such Investment was made by using the Available Amount during the period from and including the Business Day immediately following the
Closing Date through and including the Available Amount Reference Time in respect of loans made by the Borrower or any Restricted Subsidiary
and that constituted Investments;
(vi)
to the extent not already included in the calculation of Cumulative Consolidated Net Income or applied to prepay the Term Loans
in accordance with Section 5.2(a)(i) or to prepay, repurchase, redeem, defease, acquire or make any other similar payment on any Permitted
Additional Debt or on any Credit Agreement Refinancing Indebtedness, the aggregate amount of all Net Cash Proceeds received by the Borrower
or any Restricted Subsidiary in connection with the Disposition of its ownership interest in any Investment to any Person other than to
the Borrower or a Restricted Subsidiary and to the extent such Investment was made by using the Available Amount during the period from
and including the Business Day immediately following the Closing Date through and including the Available Amount Reference Time;
(vii)
the amount of any Investment of the Borrower or any of its Restricted Subsidiaries in any Unrestricted Subsidiary that has been
re-designated as a Restricted Subsidiary pursuant to Section 9.15 or that has been merged, amalgamated or consolidated with or into the
Borrower or any of its Restricted Subsidiaries pursuant to Section 10.3 or the amount of assets of an Unrestricted Subsidiary Disposed
of to the Borrower or a Restricted Subsidiary, in each case following the Closing Date and at or prior to the Available Amount Reference
Time, in each case, such amount not to exceed the lesser of (x) the Fair Market Value of the Investments of the Borrower and its Restricted
Subsidiaries in such Unrestricted Subsidiary immediately prior to giving pro forma effect to such re-designation or merger, amalgamation
or consolidation or the Fair Market Value of the assets so Disposed of and (y) the amount originally invested from the Available Amount
by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary (provided that, in the case of original investments made
in cash, the Fair Market Value shall be such cash value); and
(viii)
the aggregate amount of all Returns (to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted
Subsidiary on Investments made using the Available Amount during the period from and including the Business Day immediately following
the Closing Date through and including the Available Amount Reference Time;
minus (b) the sum of, without duplication and without
taking into account the proposed portion of the amount calculated above to be used at the applicable Available Amount Reference Time:
(i)
the aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Amount pursuant to
Section 10.5 after the Closing Date and prior to the Available Amount Reference Time;
(ii)
the aggregate amount of any Restricted Payments made by the Borrower using the Available Amount pursuant to Section 10.6(f) after
the Closing Date and prior to the Available Amount Reference Time; and
(iii)
the aggregate amount expended on prepayments, repurchases, redemptions, acquisitions, defeasements, and other similar payments
made by the Borrower or any Restricted Subsidiary using the Available Amount pursuant to Section 10.7(a) after the Closing Date and prior
to the Available Amount Reference Time.
“Available Amount Reference
Time” shall have the meaning provided in the definition of the term “Available Amount.”
“Available Equity Amount”
shall mean, at any time (the “Available Equity Amount Reference Time”) an amount (which shall not be less than zero)
equal to, without duplication:
(a)
the aggregate amount of cash and the Fair Market Value of marketable securities or other property, in each case, contributed to
the capital of the Borrower or the proceeds received by the Borrower from the issuance of any Capital Stock (or Incurrences of Indebtedness
that have been converted into or exchanged for Qualified Capital Stock), in each case during the period from and including the Business
Day immediately following the Closing Date through and including the Available Equity Amount Reference Time, but excluding (A) all proceeds
from the issuance of Disqualified Capital Stock, (B) any Excluded Contribution and (C) any Cure Amount; plus
(b) [reserved];
(c)
the Fair Market Value or, if the Fair Market Value of such Term Loans cannot be ascertained, the Fair Market Value shall be the
purchase price of such Term Loans (which shall not in any event be calculated in excess of par) of Term Loans contributed directly or
indirectly by an Investor or a Non-Debt Fund Affiliate to the Borrower during the period after the Closing Date through and including
the Available Equity Amount Reference Time; plus
(d)
the greater of (x) $25,000,000 and (y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test
Period most recently ended on or prior to any such Available Equity Amount Reference Time; plus
(e)
to the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount (which amount
shall not be less than zero) of any Retained Asset Sale Proceeds retained by the Borrower and its Restricted Subsidiaries during the period
after the Closing Date through and including the Available Equity Amount Reference Time; plus
(f)
to the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount (which amount
shall not be less than zero) of any Retained Refused Proceeds retained by the Borrower and its Restricted Subsidiaries during the period
from and including the Business Day immediately following the Closing Date through and including the Available Equity Amount Reference
Time; plus
(g)
the aggregate amount of all Returns (to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted
Subsidiary on Investments made using the Available Equity Amount during the period from and including the Business Day immediately following
the Closing Date through and including the Available Equity Amount Reference Time;
minus the sum, without duplication, and, without taking
into account the proposed portion of the Available Equity Amount calculated above to be used at the applicable Available Equity Amount
Reference Time, of:
(i)
the aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Equity Amount pursuant
to Section 10.5 after the Closing Date and prior to the Available Equity Amount Reference Time;
(ii)
the aggregate amount of any Restricted Payments made by the Borrower using the Available Equity Amount pursuant to Section 10.6(f)
after the Closing Date and prior to the Available Equity Amount Reference Time; and
(iii)
the aggregate amount of prepayments, repurchases, redemptions, defeasances, acquisitions and other similar payments, made by the
Borrower or any Restricted Subsidiary using the Available Equity Amount pursuant to Section 10.7(a) after the Closing Date and prior to
the Available Equity Amount Reference Time.
“Available
Equity Amount Reference Time” shall have the meaning provided in the definition of the term “Available Equity Amount.”
“Available
Revolving Credit Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total Revolving Credit
Commitment over (b) the sum of (i) the aggregate principal amount of all Revolving Credit Loans and Swingline Loans then outstanding and
(ii) the aggregate Letter of Credit Obligations at such time.
“Available
RP Capacity Amount” shall mean the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
10.6(b), (f), (l), (m), and (s) minus the sum of the amount of the Available RP Capacity Amount utilized by the Borrower or any Restricted
Subsidiary to (A) make Restricted Payments in reliance on Sections 10.6(b), (f), (l), (m), and (s) and (B) incur Indebtedness pursuant
to Section 10.1(w) utilizing the Available RP Capacity Amount.
“Bail-In
Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect
of any liability of an EEA Financial Institution.
“Bail-In
Legislation” shall mean 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 for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule.
“Bankruptcy
Code” shall mean the provisions of Title 11 of the United States Code, 11 USC §§ 101 et seq., as amended, or any similar
federal or state law for the relief of debtors.
“Basel
III” shall mean, collectively, those certain agreements on capital requirements, leverage ratios and liquidity standards contained
in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International
Framework for Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National Authorities Operating the
Countercyclical Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from
time to time), and as implemented by a Lender’s primary U.S. federal banking regulatory authority or primary non-U.S. financial
regulatory authority, as applicable.
“Beneficial
Owner” shall mean, in the case of a Lender (including the Swingline Lender and each Letter of Credit Issuer), the beneficial
owner of any amounts payable under any Credit Document for U.S. federal withholding tax purposes.
“Benefited Lender” shall have the meaning
provided in Section 13.8(a).
“Board”
shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board
of Directors” shall mean, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person,
(ii) in the case of any limited liability company, the board of managers of such Person, (iii) in the case of any partnership, the Board
of Directors of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.
“Borrower”
shall have the meaning provided in the preamble to this Agreement and shall include any Successor Borrower, to the extent applicable.
“Borrower Materials” shall have the meaning
provided in Section 13.2.
“Borrowing”
shall mean and include (a) the Incurrence of Swingline Loans from the Swingline Lender on a given date (or swingline loans under any
Extended Revolving Credit Commitments of Additional/Replacement Revolving Credit Commitments from any swingline lender thereunder on
a given date), (b) the Incurrence of one Class and Type of Initial Term Loan on the Closing Date (or resulting from conversions on a
given date after the Closing Date) having, in the case of Eurodollar Loans, the same Interest Period (provided that ABR Loans
Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans), (c) the Incurrence of one
Class and Type of Incremental Term Loan on an Incremental Facility Closing Date (or resulting from conversions on a given date after
the applicable Incremental Facility Closing Date) having, in the case of Eurodollar Loans, the same Interest Period (provided
that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans), (d) the Incurrence
of one Class and Type of Revolving Credit Loan on a given date (or resulting from conversions on a given date) having, in the case of
Eurodollar Loans, the same Interest Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part
of any related Borrowing of Eurodollar Loans), (e) the Incurrence of one Class and Type of Additional/Replacement Revolving Credit Loan
on a given date (or resulting from conversions on a given date) having, in the case of Eurodollar Loans, the same Interest Period (provided
that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans) and (f)
the Incurrence of one Type of Extended Revolving Credit Loan of a specified Class on a given date (or resulting from conversions on a
given date) having, in the case of Eurodollar Loans, the same Interest Period (provided that ABR Loans Incurred pursuant to Section
2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans).
“Business
Day” shall mean (a) any day excluding Saturday, Sunday and any day that shall be in The City of New York a legal holiday or
a day on which banking institutions are authorized by law or other governmental actions to close and (b) if the applicable Business Day
relates to any Eurodollar Loans, any day on which dealings in deposits in U.S. Dollars are carried on in the London interbank eurodollar
market.
“Capital
Expenditures” shall mean, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash
or accrued as liabilities) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are
required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of
the Borrower and the Restricted Subsidiaries, (b) all Capitalized Software Expenditures and Capitalized Research and Development Costs
during such period and (c) all fixed asset additions financed through Financing Lease Obligations Incurred by the Borrower and the Restricted
Subsidiaries and recorded on the balance sheet in accordance with GAAP during such period; provided that the term “Capital
Expenditures” shall not include:
(i)
expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed from
insurance proceeds or compensation awards paid on account of a Recovery Event (except to the extent that such proceeds otherwise increase
Consolidated Net Income for purposes of calculating Excess Cash Flow for such period),
(ii)
the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the
gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in
at such time,
(iii)
the purchase of property, plant or equipment to the extent financed with the proceeds of Dispositions outside the ordinary course
of business (except to the extent that such proceeds otherwise increase Consolidated Net Income for purposes of calculating Excess Cash
Flow for such period),
(iv) expenditures that constitute any part of Consolidated Lease Expense,
(v)
expenditures that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are
paid for, or reimbursed, by a Person other than the Borrower or any Restricted Subsidiary and for which neither the Borrower nor any Restricted
Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or
any other Person (whether before, during or after such period, it being understood, however, that only the amount of expenditures actually
provided or incurred by the Borrower or any Restricted Subsidiary in such period and not the amount required to be provided or incurred
in any future period shall constitute “Capital Expenditures” in the applicable period),
(vi)
the book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that
such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such
asset during such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure
necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in which such expenditure
actually is made and (y) such book value shall have been included in Capital Expenditures when such asset was originally acquired,
(vii)
any expenditures made as payments of the consideration for an Acquisition (or other similar Investment) and expenditures made in
connection with the Transactions and any amounts recorded pursuant to purchase accounting required under GAAP pertaining to Acquisitions
(or other similar Investments) or the Transactions,
(viii)
any capitalized interest expense and internal costs reflected as additions to property, plant or equipment in the consolidated
balance sheet of the Borrower and the Restricted Subsidiaries or capitalized as Capitalized Software Expenditures and Capitalized Research
and Development Costs for such period, or
(ix)
any non-cash compensation or other non-cash costs reflected as additions to property, plant and equipment, Capitalized Software
Expenditures and Capitalized Research and Development Costs in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capital
Stock” shall mean 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 and including membership interests and
partnership interests) and, except to the extent constituting Indebtedness, any and all warrants, rights or options to purchase, acquire
or exchange any of the foregoing.
“Capitalized
Research and Development Costs” shall mean, for any period, all research and development costs that are, or are required to
be, in accordance with GAAP, reflected as capitalized costs on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capitalized
Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities)
by the Borrower and the Restricted Subsidiaries during such period in respect of purchased software or internally developed software and
software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries.
“Cash Collateral” shall have the meaning
provided in Section 3.8(c).
“Cash Collateralize” shall have the meaning
provided in Section 3.8(c).
“Cash Equivalents” shall mean:
(a)
Dollars;
(b)
Australian Dollars, Canadian Dollars, Euros, Pounds Sterling or any national currency of any participating member state of the
EMU;
(c)
other currencies held by the Borrower or the Restricted Subsidiaries from time to time in the ordinary course of business;
(d)
securities issued or unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof,
in each case having maturities of not more than 24 months from the date of acquisition thereof;
(e)
securities issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing
authority of any such state, commonwealth or territory or any public instrumentality thereof or any political subdivision or taxing authority
of any such state or commonwealth or territory or any public instrumentality thereof having maturities of not more than 24 months from
the date of acquisition thereof and, at the time of acquisition, having an Investment Grade Rating;
(f)
commercial paper or variable or fixed rate notes issued by or guaranteed by any Lender or any bank holding company owning any Lender;
(g)
commercial paper or variable or fixed rate notes maturing no more than 24 months from the date of acquisition thereof and, at the
time of acquisition, having an Investment Grade Rating;
(h)
time deposits with, or domestic and eurocurrency certificates of deposit, demand deposits or bankers’ acceptances maturing
no more than two years after the date of acquisition thereof and overnight bank deposits, in each case, issued by, any Lender or any other
bank having combined capital and surplus of not less than $100,000,000 (or the Dollar equivalent as of the date of determination);
(i)
repurchase obligations for underlying securities of the type described in clauses (d), (e) and (h) above entered into with any
bank meeting the qualifications specified in clause (h) above or securities dealers of recognized national standing;
(j)
marketable short-term money market and similar securities having a rating of at least A-2 or P-2 from either S&P or Moody’s
(or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another Rating Agency);
(k)
readily marketable direct obligations issued by any non-U.S. government or any political subdivision or public instrumentality
thereof, in each case having an Investment Grade Rating with maturities of 24 months or less from the date of acquisition;
(l)
Investments with average maturities of no more than 24 months from the date of acquisition in money market funds rated AAA- (or
the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency);
(m)
with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary
maintains its chief executive office and principal place of business; provided such country is a member of the Organization for
Economic Cooperation and Development, in each case maturing within 24 months after the date of acquisition thereof, (ii) certificates
of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the
country in which such Foreign Subsidiary maintains its chief executive office and principal place of business; provided such country
is a member of the Organization for Economic Cooperation and Development, and who otherwise meets the qualifications specified in clause
(f) above (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months
from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
(n)
Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A-2”
or higher from Moody’s (or, if at any time neither S&P or Moody’s shall be rating such obligations, an equivalent rating
from another Rating Agency) with maturities of 24 months or less from the date of acquisition;
(o)
in the case of investments by any Foreign Subsidiary or investments made in a country outside the United States of America, Cash
Equivalents shall also include (i) investments of the type and maturity described in clauses (a) through (n) above of foreign obligors,
which investments or obligors (or the parents of such obligors) have ratings, described in such clauses or equivalent ratings from comparable
foreign Rating Agencies and (ii) other short term investments utilized by Foreign Subsidiaries in accordance with normal investment practices
for cash management in investments analogous to the foregoing investments described in clauses (a) through (n) of this paragraph; and
(p)
investment funds investing 90% of their assets in securities of the types described in clauses (a) through (o) above.
Notwithstanding
the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (a), (b) and (c)
above; provided that such amounts are converted into any currency or securities listed in clauses (a) through (d) as promptly as
practicable and in any event within ten (10) Business Days following the receipt of such amounts.
“Cash
Management Agreement” shall mean any agreement entered into from time to time by Holdings, the Borrower or any of the Restricted
Subsidiaries in connection with cash management services for collections, other Cash Management Services or for operating, payroll and
trust accounts of such Person, including automatic clearing house services, controlled disbursement services, electronic funds transfer
services, information reporting services, lockbox services, stop payment services and wire transfer services.
“Cash
Management Bank” shall mean any Person that is a Lender, Lead Arranger, Joint Bookrunner, Agent or any Affiliate of a Lender,
Lead Arranger, Joint Bookrunner or Agent at the time it provides any Cash Management Services or any Person that shall have become a Lender,
an Agent or an Affiliate of a Lender or an Agent at any time after it has provided any Cash Management Services.
“Cash
Management Obligations” shall mean obligations owed by Holdings, the Borrower or any Restricted Subsidiary to any Cash Management
Bank in connection with, or in respect of, any Cash Management Services.
“Cash
Management Services” shall mean (a) commercial credit cards, merchant card services, purchase or debit cards, including non-card
e-payables services, (b) treasury management services (including controlled disbursement, overdraft automatic clearing house fund transfer
services, return items and interstate depository network services) and (c) any other demand deposit or operating account relationships
or other cash management services, including under any Cash Management Agreements.
“CFC” shall mean a “controlled foreign
corporation” within the meaning of Section 957 of the Code.
“Change
in Law” shall mean the occurrence, after the Closing Date, of any of the following: (a) the adoption of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the administration or interpretation thereof by any Governmental
Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection
Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) Basel III and all requests,
rules, guidelines or directives thereunder or issued in connection therewith, shall in each case be deemed to be a “Change in Law”,
regardless of the date enacted, adopted or issued.
“Change of Control” shall mean and be deemed
to have occurred if:
(a)
(i) at any time prior to a Qualifying IPO, (x) the Permitted Holders shall at any time cease, directly or indirectly, to have
the power to vote or direct the voting of at least 35% of the total voting power of the Voting Stock of Holdings (or, for the avoidance
of doubt, any New Holdings or Successor Holdings) or (y) the acquisition by (A) any Persons (other than any one or more Permitted Holders)
or (B) Persons (other than any one or more Permitted Holders) that are together a “group” (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act (or any successor provision), but excluding any employee benefit plan of such Person or “group”
or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), including any group acting
for the purpose of acquiring, holding or Disposing of Capital Stock of Holdings (or, for the avoidance of doubt, any New Holdings or
Successor Holdings) (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor provision)) of a percentage of the
total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) that is greater
than the percentage of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor
Holdings) in the aggregate, directly or indirectly, beneficially owned by the Permitted Holders and/or (ii) at any time on and after
a Qualifying IPO, the acquisition by (A) any Person (other than any one or more Permitted Holders) or (B) Persons (other than any one
or more Permitted Holders) that are together a “group” (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act (or any successor provision), but excluding any employee benefit plan of such Person or “group” or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan), including any group acting for the purpose of acquiring,
holding or Disposing of Capital Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor provision)) of the total voting power of the Voting Stock of Holdings
(or, for the avoidance of doubt, any New Holdings or Successor Holdings) having more than the greater of (A) 35% of the total voting
power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) and (B) the percentage
of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) owned,
directly or indirectly, beneficially in the aggregate by the Permitted Holders, unless in the case of either clause (i) or (ii) above,
the Permitted Holders have, at such time, the right or the ability by voting power, contract, proxy or otherwise to elect, appoint, nominate
or designate at least a majority of the aggregate votes on the Board of Directors of Holdings (or, for the avoidance of doubt, any New
Holdings or Successor Holdings); and/or
(b)
at any time prior to a Qualifying IPO of the Borrower (or, for the avoidance of doubt, a Successor Borrower), the failure of Holdings
(or, for the avoidance of doubt, any New Holdings or Successor Holdings), directly or indirectly through wholly owned subsidiaries, to
own beneficially and of record, all of the Capital Stock of the Borrower; and/or
(c)
a “change of control” or any comparable event under, and as defined in any documentation governing any other First
Lien Obligations (other than any Cash Management Agreement or Hedging Agreement) shall have occurred.
Notwithstanding
the preceding or any provision of Rule 13d-3 of the Exchange Act (or any successor provision), (i) a Person or group shall not be deemed
to beneficially own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option
or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement, (ii) if any group includes
one or more Permitted Holders, the issued and outstanding Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or
Successor Holdings) beneficially owned, directly or indirectly, by any Permitted Holders that are part of such group shall not be treated
as being beneficially owned by any other member of such group for purposes of determining whether a Change of Control has occurred and
(iii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Voting
Stock or other securities of such other Person’s Parent Entity (or related contractual rights) unless it owns 50.0% or more of the
total voting power of the Voting Stock of such Parent Entity. For purposes of this definition and any related definition to the extent
used for purposes of this definition, at any time when 50.0% or more of the total voting power of the Voting Stock of Holdings (or, for
the avoidance of doubt, any New Holdings or Successor Holdings) is directly or indirectly owned by a Parent Entity, all references to
Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) shall be deemed to refer to its ultimate Parent Entity
(but excluding any Investor) that directly or indirectly owns such Voting Stock.
“Class”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit
Loans, Initial Term Loans, Incremental Term Loans (of a Class), Extended Term Loans (of the same Extension Series), Extended Revolving
Credit Loans (of the same Extension Series and any related swingline loans thereunder), Additional/Replacement Revolving Credit Loans
(of the same Class and any related swingline loans thereunder) or Swingline Loans, and, when used in reference to any Commitment, refers
to whether such Commitment is a Revolving Credit Commitment, an Initial Term Loan Commitment, an Incremental Term Loan Commitment (of
the same Class), an Extended Revolving Credit Commitment (of the same Extension Series and any related swingline commitment thereunder),
an Additional/Replacement Revolving Credit Commitment (of the same Class and any related swingline commitment thereunder) or a Swingline
Commitment, and when used in reference to any Lender, refers to whether such Lender has a Loan or Commitment of such Class.
“Claims” shall have meaning provided in
the definition of Environmental Claims.
“Closing Date” shall mean the date of
the initial Credit Event under this Agreement, which date is August 4, 2017.
“Closing
Date Indebtedness” shall mean Indebtedness outstanding on the date hereof and, to the extent in excess of $2,500,000, described
on Schedule 10.1.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time. Section references to the Code are to the Code, as in effect
on the Closing Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Collateral”
shall have the meaning provided for such term or a similar term in each of the Security Documents; provided that, with respect
to any Mortgages, “Collateral” shall mean “Mortgaged Property” as defined therein.
“Collateral
Agent” shall mean UBS AG, Stamford Branch or any successor thereto appointed in accordance with the provisions of Section 12.11,
together with any of its Affiliates, that is appointed as a sub-agent in accordance with Section 12.4, as the collateral agent for the
Secured Parties.
“Commitment”
shall mean, (a) with respect to each Lender (to the extent applicable), such Lender’s Initial Term Loan Commitment, Incremental
Term Loan Commitment, Revolving Credit Commitment, Extended Revolving Credit Commitment, Additional/Replacement Revolving Credit Commitment
or any combination thereof (as the context requires) and (b) with respect to the Swingline Lender, or swingline lender under any Extended
Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments, its Swingline Commitment or swingline commitment,
as applicable.
“Commitment Fee” shall have the meaning
provided in Section 4.1(a).
“Commitment
Fee Rate” shall mean a rate equal to the following percentages per annum, based upon the Consolidated First Lien Debt to Consolidated
EBITDA Ratio as set forth in the most recent certificate delivered to the Administrative Agent pursuant to Section 9.1(d):
|
Pricing Level
|
Consolidated First Lien Debt to Consolidated EBITDA Ratio
|
Commitment Fee Rate
|
|
1
|
Greater than 4.75:1.00
|
0.50%
|
|
2
|
Less than or equal to 4.75:1.00
but greater than 4.25:1.00
|
0.375%
|
|
3
|
Less than or equal to 4.25:1.00
|
0.25%
|
Notwithstanding
anything to the contrary in this definition, during the period from the Closing Date until the Initial Financial Statement Delivery Date,
the Commitment Fee Rate shall be determined by “Pricing Level 1” set forth in the table above. Any increase or decrease in
the Commitment Fee Rate resulting from a change in the Consolidated First Lien Debt to Consolidated EBITDA Ratio shall become effective
as of the first Business Day immediately following the date the certificate delivered pursuant to Section 9.1(d) is delivered to the Administrative
Agent; provided that, at the option of the Required Lenders, the highest pricing level (as set forth in the table above) shall
apply (a) as of the first Business Day after the date on which Section 9.1 Financials were required to have been delivered but have not
been delivered pursuant to Section 9.1 and shall continue to so apply to and including the date on which such Section 9.1 Financials are
so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (b) as of the
first Business Day after an Event of Default under Section 11.1 or Section 11.5 shall have occurred and be continuing and, in the case
of Section 11.1, the Administrative Agent has notified the Borrower that the highest pricing level applies, and shall continue to so apply
to but excluding the date on which such Event of Default shall cease to be continuing (and thereafter the pricing level otherwise determined
in accordance with this definition shall apply).
In the event
that the Administrative Agent and the Borrower determine that any Section 9.1 Financials previously delivered were incorrect or inaccurate
(regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected,
would have led to the application of a higher Commitment Fee Rate for any Applicable Period than the Commitment Fee Rate applied for such
Applicable Period, then (a) the Borrower shall as soon as practicable deliver to the Administrative Agent the correct Section 9.1 Financials
for such Applicable Period, (b) the Commitment Fee Rate shall be determined as if the pricing level for such higher Commitment Fee Rate
were applicable for such Applicable Period, and (c) the Borrower shall within 10 Business Days of demand thereof by the Administrative
Agent pay to the Administrative Agent the accrued additional interest owing as a result of such increased Commitment Fee Rate for such
Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement. This paragraph
shall not limit the rights of the Administrative Agent and Lenders with respect to Section 2.8(c) and Section 11.
“Commitment
Letter” shall mean the Credit Facilities Commitment Letter, dated as of June 19, 2017, among UBS AG, Stamford Branch, UBS Securities
LLC, SunTrust Bank, SunTrust Robinson Humphrey, Inc. and Holdings.
“Commodity
Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute.
“Communications” shall have the meaning
provided in Section 13.2.
“Company Merger” shall have the meaning
provided in the recitals to this Agreement.
“Confidential Information” shall have the
meaning provided in Section 13.16.
“Confidential
Information Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated July 2017, delivered to the
prospective lenders in connection with this Agreement.
“Consolidated
Depreciation and Amortization Expense” shall mean, with respect to any Person for any period, the total amount of depreciation
and amortization expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees and expenses,
Capital Expenditures, including Capitalized Software Expenditures, intangible assets established through recapitalization or purchase
accounting, and the accretion or amortization of OID resulting from the Incurrence of Indebtedness at less than par, of such Person for
such period on a consolidated basis and as determined in accordance with GAAP.
“Consolidated EBITDA” shall mean, for any
period, the Consolidated Net Income for such period, plus:
(a) without duplication and to the extent already
deducted or, in the case of clauses (vi) and (viii) below,
to the extent not included (and not added back or excluded) in arriving at such Consolidated Net Income, the sum of the following amounts
for such period:
(i)
provision for taxes based on income or profits or capital, including, without limitation, federal, foreign, state, local, franchise,
unitary, property, excise, value added and similar taxes and foreign withholding taxes paid or accrued during such period (including taxes
in respect of expatriated or repatriated funds and any penalties and interest related to such taxes or arising from any tax examinations),
(ii)
Consolidated Interest Expense and, to the extent not reflected in such Consolidated Interest Expense, bank and letter of credit
fees, debt rating monitoring fees and net losses on Hedging Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk, amortization of deferred financing fees, OID or costs, costs of surety bonds in connection with financing
activities, together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (A) through
(N) thereof,
(iii) Consolidated Depreciation and Amortization Expense,
(iv)
the amount of any restructuring charge, accrual or reserve or non-recurring (on a per-transaction basis) integration costs and
related costs and charges, including proposed or actual hiring and on-boarding of any senior level executives and any one-time (on a per-transaction
basis) costs or charges incurred in connection with Acquisitions and other Investments and costs, charges and expenses, including put
arrangements and headcount reductions or other similar actions including severance charges in respect of employee termination or relocation
costs, excess pension charges, severance and lease termination expenses and other expenses related to the closure, discontinuance, consolidation
and integration of locations, IT infrastructure, legal entities and/or facilities,
(v)
any other non-cash charges, including (A) all non-cash compensation expenses and costs, (B) the non-cash impact of recapitalization
or purchase accounting, (C) the non-cash impact of accounting changes or restatements, (D) any non-cash portion of Consolidated Lease
Expense and (E) other non-cash charges; provided that, to the extent that any such non-cash charges represent an accrual or reserve
for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated
EBITDA in such future period to such extent; and provided, further, that amortization of a prepaid cash item that was paid
in a prior period shall be excluded),
(vi)
the aggregate amount of Consolidated Net Income for such period attributable to non-controlling interests of third parties in any
non Wholly-Owned Subsidiary, excluding cash distributions in respect thereof to the extent already included in Consolidated Net Income,
(vii)
the amount of management, monitoring, consulting and advisory fees, termination payments, indemnities and related expenses paid
or accrued in such period to (or on behalf of) the Investors (including amortization thereof) and any directors’ fees or reimbursements
(including pursuant to any management agreement) in any such case to the extent otherwise permitted under Section 10.11 or to (or on behalf
of) Affiliates of the Target on or prior to the Closing Date (and following the Closing Date, with respect to indemnification or other
amounts owed in respect of arrangements in effect prior to the Closing Date),
(viii)
(A) pro forma adjustments, including pro forma “run rate” cost savings, operating expense reductions and other synergies
related to the Transactions projected by the Borrower in good faith to result from actions that have been taken, actions with respect
to which substantial steps have been taken or actions that are expected to be taken (in each case, in the good faith determination of
the Borrower), in any such case within eight fiscal quarters after the Closing Date (or, to the extent identified and reasonably acceptable
to the Lead Arrangers, undertaken or implemented prior to the Closing Date) and, without duplication and (B) pro forma adjustments, including
pro forma “run rate” cost savings, operating expense reductions, and other synergies related to mergers, business combinations,
Acquisitions and similar Investments, Dispositions and other similar transactions, or related to restructuring initiatives, cost savings
initiatives and other initiatives projected by the Borrower in good faith to result from actions that have been taken, actions with respect
to which substantial steps have been taken or actions that are expected to be taken (in each case, in the good faith determination of
the Borrower), in any such case, within eight fiscal quarters after the date of consummation of such merger, business combination, Acquisition
or similar Investment, Disposition or other similar transaction or the initiation of such restructuring initiative, cost savings initiative
or other initiative; provided further, that, for the purpose of this clause (viii), (I) any such adjustments shall be added to
Consolidated EBITDA for each Test Period until fully realized and shall be calculated on a pro forma basis as though such adjustments
had been realized on the first day of the relevant Test Period and shall be calculated net of the amount of actual benefits realized from
such actions, (II) any such adjustments shall be reasonably identifiable and (III) no such adjustments shall be added pursuant to this
clause (viii) to the extent duplicative of any items related to adjustments included in the definition of Consolidated Net Income, clause
(iv) above or pursuant to the effects of Section 1.12 (it being understood that for purposes of the foregoing and Section 1.12 “run
rate” shall mean the full recurring benefit that is associated with any such action),
(ix)
Receivables Fees and the amount of loss on Dispositions of receivables and related assets to the Receivables Subsidiary in connection
with a Qualified Receivables Facility,
(x)
to the extent funded with cash contributed to the capital of the Borrower or the Net Cash Proceeds of an issuance of Capital Stock
of the Borrower (other than Disqualified Capital Stock) solely to the extent that such Net Cash Proceeds are excluded from the calculation
of the Available Equity Amount, (A) any deductions, charges, costs or expenses (including compensation charges and expenses) incurred
by the Borrower or any Restricted Subsidiary pursuant to any management equity plan or share option plan or any other management or employee
benefit plan or agreement, pension plan, any severance agreement or any equity subscription or shareholder agreement or any distributor
equity plan or agreement or in connection with grants of stock appreciation or similar rights or other rights to directors, officers,
managers and/or employees of any Parent Entity, any Equityholding Vehicle, the Borrower or any of its Restricted Subsidiaries and (B)
any charges, costs, expenses accruals or reserves in connection with the rollover, acceleration or payout of Capital Stock held by directors,
officers, managers and/or employees of any Parent Entity, any Equityholding Vehicle, the Borrower or any of its Restricted Subsidiaries,
(xi)
100% of the increase in Deferred Revenue as of the end of such period from Deferred Revenue as of the beginning of such period,
(xii)
cash receipts (or any netting arrangements resulting in reduced cash expenditures) not otherwise included in Consolidated EBITDA
in any period to the extent non- cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant
to paragraph (b) below for any previous period and not added back,
(xiii)
any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial
losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or
cost) existing at the date of initial application of Financial Accounting Standards Board’s Accounting Standards Codification No.
715, any non-cash deemed finance charges in respect of any pension liabilities, the curtailment or modification of pension and post-retirement
employee benefit plans (including settlement of pension liabilities), and any other items of a similar nature,
(xiv)
in respect of any Hedging Obligations that are terminated (or early extinguished) prior to the stated settlement date, any loss
(or gain as applicable) reflected in Consolidated Net Income in or following the quarter in which such termination or early extinguishment
occurs,
(xv)
all adjustments, other than normalized adjustments, of the type that are described on page 41 of the Public Lenders Presentation
dated July 2017, to the extent such adjustments, without duplication, continue to be applicable to such period,
(xvi)
costs, expenses, charges, accruals, reserves (including restructuring costs related to acquisitions prior to, on or after the Closing
Date) or expenses attributable to the undertaking and/or the implementation of cost savings initiatives, operating expense reductions
and other restructuring and integration and transition costs, costs associated with inventory category and distribution optimization programs,
pre-opening, opening and other business optimization expenses (including software development costs), consolidation, discontinuance and
closing costs and expenses for locations and/or facilities, signing, retention and completion bonuses, costs related to entry and expansion
into new markets (including consulting fees) and to modifications to pension and post-retirement employee benefit plans, system design,
establishment and implementation costs and project start-up costs,
(xvii) adjustments consistent with Regulation S-X of the Securities Act,
(xviii)
changes in earn-out obligations incurred in connection with any Acquisition or other similar Investment permitted under this Agreement
and paid during the applicable period and any similar acquisitions completed prior to the Closing Date, and
(xix)
costs related to the implementation of operational and reporting systems and technology initiatives,
less
(b) without duplication and to the extent included
in arriving at such Consolidated Net Income,
(i)
any non-cash gains, but excluding any non-cash gains that represent the reversal of any accrual of, or cash reserve for, anticipated
cash items that reduced Consolidated EBITDA in any prior period, and
(ii)
100% of the decrease in Deferred Revenue as of the end of such period from the Deferred Revenue as of the beginning of such period,
in each case, as determined on a consolidated basis
for the Borrower and the Restricted Subsidiaries in accordance with GAAP; provided that,
(I)
there shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person,
property, business or asset acquired by the Borrower or any Restricted Subsidiary during such period (other than any Unrestricted Subsidiary)
to the extent not subsequently sold, transferred or otherwise Disposed of during such period (but not including the Acquired EBITDA of
any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired,
including pursuant to the Transactions or pursuant to a transaction consummated prior to the Closing Date, and not subsequently so Disposed
of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted
Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such
Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical
pro forma basis; and
(II)
there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business
or asset sold, transferred or otherwise Disposed of, closed or classified as discontinued operations by the Borrower or any Restricted
Subsidiary to the extent not subsequently reacquired, reclassified or continued, in each case, during such period (each such Person (other
than an Unrestricted Subsidiary), property, business or asset so sold, transferred or otherwise Disposed of, closed or classified, a “Sold
Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary
during such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such
Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale,
transfer, disposition, closure, classification or conversion) determined on a historical pro forma basis.
Notwithstanding anything to the
contrary contained herein and subject to adjustment as provided in clauses (I) and
(II) of the immediately preceding proviso with respect to acquisitions and Dispositions occurring prior to, on and following the
Closing Date and, without any duplication of any adjustments already included in the amounts below, other adjustments contemplated
by Section 1.12, clauses (a)(i), (a)(viii), (a)(xv) and (a)(xvi) above, Consolidated EBITDA shall be deemed to be $13,940,000,
$12,635,000, $12,370,000 and $11,155,000, respectively, for the fiscal quarters ended June 30, 2016, September 30, 2016, December
31, 2016 and March 31, 2017.
“Consolidated
EBITDA to Consolidated Interest Expense Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated EBITDA
for the most recent Test Period ended on or prior to such date of determination to (b) Consolidated Interest Expense for such period;
provided that, for purposes of calculating the Consolidated EBITDA to Consolidated Interest Expense Ratio for any period ending
prior to the first anniversary of the Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated 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.
“Consolidated
First Lien Debt” shall mean, without duplication, as of any date of determination, (a) the aggregate principal amount of all
Consolidated Total Debt (determined without regard to clause (b) of the definition thereof) outstanding hereunder as of such date (but
excluding the effects of any discounting of Indebtedness resulting from the application of recapitalization or purchase accounting in
connection with the Transactions, any Acquisition or other similar Investment) and all other Consolidated Total Debt (determined without
regard to clause (b) of the definition thereof) secured by Liens on the Collateral that do not rank junior in priority to the Liens on
the Collateral securing the Obligations minus (b) the aggregate amount of cash and Cash Equivalents on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries on such date, excluding cash and Cash Equivalents which are or should be listed
as “restricted” on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date. It is
understood that to the extent the Borrower or any Restricted Subsidiary Incurs any Indebtedness and receives the proceeds of such Indebtedness,
for purposes of determining any Incurrence test under this Agreement and whether the Borrower is in pro forma compliance with any such
test, the proceeds of such Incurrence shall not be considered cash or Cash Equivalents for purposes of any “netting” pursuant
to clause (b) of this definition.
“Consolidated
First Lien Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated First
Lien Debt as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA
for such Test Period.
“Consolidated
Interest Expense” shall mean, with respect to any Person for any period, without duplication, the sum of:
(a) the
consolidated cash interest expense of such Person for such period, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of such Person, (including (i) all commissions, discounts and other cash fees and charges
owed with respect to letters of credit and bankers’ acceptance financing, (ii) the cash interest component of Financing Lease
Obligations, (iii) net cash payments, if any, made (less
net cash payments, if any, received), pursuant to obligations under Hedging Agreements for Indebtedness) and (iv) Restricted
Payments on account of Disqualified Stock made pursuant to Section 10.6(r), but in any event excluding, for the avoidance of
doubt,
(A)
accretion or amortization of original issue discount resulting from the Incurrence of Indebtedness at less than par;
(B)
amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses;
(C)
any accretion or accrual of, or accrued interest on discounted liabilities not constituting Indebtedness during such period and
any prepayment, redemption, repurchase, defeasance, acquisition or similar premium, penalty or inducement or other loss in connection
with the early Refinancing or modification of Indebtedness paid or payable during such period;
(D)
any interest in respect of items excluded from Indebtedness in the proviso to the definition thereof;
(E)
penalties or interest relating to taxes and any other amount of non-cash interest resulting from the effects of the acquisition
method of accounting or pushdown accounting;
(F)
non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedging Agreements
or other derivative instruments pursuant to Financial Accounting Standards Board’s Accounting Standards Codification No. 815 (Derivatives
and Hedging);
(G)
any one-time cash costs associated with breakage in respect of Hedging Agreements for interest rates and any payments with respect
to make-whole premiums or other breakage costs in respect of any Indebtedness;
(H)
all additional interest or liquidated damages then owing pursuant to any registration rights agreement and any comparable “additional
interest” or liquidated damages with respect to other securities designed to compensate the holders thereof for a failure to publicly
register such securities;
(I)
any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting
or purchase accounting;
(J)
any expensing of bridge, arrangement, structuring, commitment or other financing fees (excluding, for the avoidance of doubt, the
Commitment Fees);
(K)
any lease, rental or other expense in connection with Non-Financing Lease Obligations,
(L)
Receivables Fees, commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified
Receivables Facility,
(M) any capitalized interest, whether paid in cash or otherwise; and
(N)
any other non-cash interest expense, including capitalized interest, whether paid or accrued;
less
(b) cash interest income of the Borrower and the Restricted Subsidiaries for such period.
For purposes
of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such
Person to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP.
“Consolidated
Lease Expense” shall mean, for any period, all rental expenses of any Person during such period in respect of Non-Financing
Lease Obligations for real or personal property (including in connection with Sale Leasebacks), but excluding real estate taxes, insurance
costs and common area maintenance charges and net of sublease income; provided that Consolidated Lease Expense shall not include
(a) obligations under vehicle leases entered into in the ordinary course of business, (b) all such rental expenses associated with assets
acquired pursuant to the Transactions and pursuant to an Acquisition (or other similar Investment) to the extent that such rental expenses
relate to Non-Financing Lease Obligations (i) in effect at the time of (and immediately prior to) such acquisition and (ii) related to
periods prior to such acquisition, (c) Financing Lease Obligations, all as determined on a consolidated basis in accordance with GAAP
and (d) the effects from applying purchase accounting.
“Consolidated
Net Income” shall mean, with respect to any Person for any period, the aggregate of the Net Income attributable to such Person
for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without
duplication, and on an after-tax basis to the extent appropriate,
(a)
any extraordinary, unusual or nonrecurring gains, losses or expenses; costs associated with preparations for, and implementation
of, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and other Public Company Costs; earn-out payments or other consideration
paid or payable in connection with an Acquisition to the extent recorded as cash expense; severance costs; relocation costs; integration
costs; pre-opening, opening, consolidation, discontinuation, integration and closing costs and expenses for locations, facilities, IT
infrastructure and for legal entities (including any legal entity restructuring); signing, retention and completion bonuses; transition
costs; restructuring costs; and litigation settlements, fines, judgments, orders or losses and related costs and expenses shall be excluded,
(b)
the Net Income for such period shall not include the cumulative effect of a change in accounting principles, including if reflected
through a restatement or retroactive application, during such period,
(c) any
net gains or losses realized on (i) Disposed of, discontinued or abandoned operations (which shall not, unless the Borrower otherwise
elects, include assets then held for sale), or (ii) the sale or other Disposition of any Capital Stock of any Person, shall be excluded,
(d) any
net gains or losses realized attributable to asset Dispositions, other than those in the ordinary course of business, as determined in
good faith by the Borrower, and Dispositions of books of business, client lists or related goodwill in connection with the departure
of related employees, shall be excluded,
(e)
the Net Income for such period of any Person that is not the Borrower or a Restricted Subsidiary of the Borrower, or that is accounted
for by the equity method of accounting, shall be excluded; provided that the Consolidated Net Income of the Borrower and its Restricted
Subsidiaries shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents
(or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) to the referent
Person or a Restricted Subsidiary thereof in respect of such period,
(f) solely
for the purpose of determining the amount available under clause (ii) of the definition of “Available Amount,” the Net
Income for such period of any Restricted Subsidiary (other than any Credit Party) shall be excluded to the extent the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination
permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted
by the operation of the terms of its charter or any judgment, decree, order, statute, rule, or governmental regulation applicable to
that Restricted Subsidiary or its equityholders (other than: (i) restrictions that have been waived or otherwise released, (ii)
restrictions pursuant to this Agreement and (iii) restrictions arising pursuant to an agreement or instrument if the encumbrances
and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Secured
Parties than the encumbrances and restrictions contained in the Credit Documents (as determined by the Borrower in good faith))
unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided
that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments
actually paid in cash or Cash Equivalents (or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash
Equivalents, upon such conversion) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein,
(g)
any income (loss) (less all fees and expenses or charges related thereto) from the purchase, acquisition, early extinguishment,
conversion or cancellation of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs
written off and premiums paid) shall be excluded,
(h)
any impairment charge, asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to
intangible assets (including goodwill), long-lived assets, Investments in debt and equity securities, the amortization of intangibles,
and the effects of adjustments to accruals and reserves during a prior period relating to any change in the methodology of calculating
reserves for returns, rebates, warranties, inventories and other chargebacks (including government program rebates), shall be excluded,
(i) any
(i) non-cash compensation expense as a result of grants of stock appreciation or similar rights, profits interests, stock options,
phantom equity, restricted stock or other rights or equity incentive programs and any non-cash charges associated with the rollover,
acceleration or payout of Capital Stock or options, phantom equity, profits interests or other rights with respect thereto by, or
to, officers, directors, employees or consultants of Holdings, the Borrower or any of the Restricted Subsidiaries, or any Parent
Entity or Equityholding Vehicle, (ii) income (loss) attributable to deferred compensation plans or trusts and (iii) any expense
(including taxes) in respect of payments made to option holders or holders of profits interests, phantom equity, restricted stock or
restricted stock units of the Borrower or any Parent Entity or Equityholding Vehicle in connection with, or as a result of, any
distribution being made to equityholders of the Borrower or any Parent Entity or Equityholding Vehicle, which payments are being
made to compensate such option holders or holders of profits interests, phantom equity, restricted stock or restricted stock units
as though they were equityholders at the time of, and entitled to share in, such distribution (to the extent such distribution to
equityholders is excluded from Consolidated Net Income), shall be excluded,
(j)
any fees and expenses (including any commissions or discounts) incurred during such period, or any amortization thereof for such
period, in connection with any Acquisition, Investment, asset Disposition, Change of Control, Incurrence, Refinancing, prepayment, redemption,
repurchase, acquisition, defeasance, extinguishment, retirement or repayment of Indebtedness, issuance of Capital Stock, or amendment,
supplement or other modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing
Date and any such transaction undertaken, but not completed and/or not successful) and any charges or non-recurring merger costs incurred
during such period as a result of any such transaction shall be excluded,
(k)
accruals and reserves that are established or adjusted as a result of the Transactions, or any Acquisition or Investment in accordance
with GAAP,
(l)
the effects from applying purchase accounting, including applying recapitalization or purchase accounting to inventory, property
and equipment, software, goodwill and other intangible assets, in-process research and development, post-employment benefits, leases,
Deferred Revenue and debt-like items required or permitted by GAAP (including the effects of such adjustments pushed down to the Borrower
or the Restricted Subsidiaries), as a result of the Transactions or any other consummated Acquisition, or the amortization or write-off
of any amounts thereof, shall be excluded,
(m)
any foreign exchange gains or losses (whether or not realized) resulting from the impact of foreign currency changes on the valuation
of assets and liabilities on the consolidated balance sheet of the Borrower shall be excluded,
(n) any
non-cash interest expense and non-cash interest income, in each case to the extent there is no associated cash disbursement or receipt,
as the case may be, before the Latest Maturity Date, shall be excluded,
(o)
the amount of any cash tax benefits related to the tax amortization of intangible assets in such period shall be included,
(p) Transaction
Expenses (including any charges associated with the rollover, acceleration or payout of Capital Stock by management of the Target or
any of its Subsidiaries or Parent Entities in connection with the Transactions) shall be excluded,
(q)
income or expense related to changes in the fair value of contingent liabilities recorded in connection with the Transactions or
any Acquisition or other similar Investment shall be excluded,
(r)
proceeds received from business interruption insurance (to the extent not reflected as revenue or income in Net Income and to the
extent that the related loss was deducted in the determination of Net Income), shall be included,
(s) charges,
losses, lost profits, expenses or write-offs to the extent indemnified, reimbursed or insured by a third party, including expenses covered
by indemnification or reimbursement provisions in connection with the Transactions, an Acquisition or any other similar Investment, in
each case, to the extent that indemnification, reimbursement or insurance coverage has not been denied, the Borrower in good faith believes
that such amounts are recoverable from such indemnitors, reimbursers or insurers, and so long as such amounts are actually paid or reimbursed
to the Borrower or any of its Restricted Subsidiaries in cash or Cash Equivalents within one year after the related amount is first added
to Consolidated Net Income pursuant to this clause (s) (and if not so reimbursed within one year, such amount shall be deducted from
Consolidated Net Income during the next measurement period), shall be excluded; provided that such amounts shall only be included
in Consolidated Net Income under clause (ii) of the definition of “Available Amount” after such amounts are actually reimbursed
in cash,
(t)
any non-cash expenses, accruals, reserves or income related to adjustments to historical tax exposures shall be excluded; provided
that, if any such non-cash items represent an accrual or reserve for cash payments in any future period, the cash payment in respect thereof
in such future period shall be subtracted from Consolidated Net Income in such future period, but only to the extent of such non-cash
expense, accrual or reserve excluded pursuant to this clause (t),
(u)
any non-cash gain or loss attributable to the mark-to-market movement in the valuation of Hedging Obligations (to the extent the
cash impact resulting from such gain or loss has not been realized) or other derivative instruments pursuant to Financial Accounting Standards
Board’s Accounting Standards Codification No. 815-Derivatives and Hedging, shall be excluded,
(v)
any gain or loss relating to Hedging Obligations associated with transactions realized in the current period that has been reflected
in Net Income in prior periods and excluded from, or included in, as applicable, Consolidated Net Income pursuant to the preceding clause
(u) shall be included, and
(w)
any expense to the extent a corresponding amount is received in cash by the Borrower or any Restricted Subsidiaries from a Person
other than the Borrower or any Restricted Subsidiaries, provided such payment has not been included in determining Consolidated
Net Income (it being understood that if the amounts received in cash under any such agreement in any period exceed the amount of expense
in respect of such period, such excess amounts received may be carried forward and applied against expense in future periods).
“Consolidated
Secured Debt” shall mean, without duplication, as of any date of determination, (a) the aggregate principal amount of all Consolidated
Total Debt (determined without regard to clause (b) of the definition thereof) outstanding under this Agreement as of such date (but excluding
the effects of any discounting of Indebtedness resulting from the application of recapitalization or purchase accounting in connection
with any Acquisition or other similar Investment) and all other Consolidated Total Debt (determined without regard to clause (b) of the
definition thereof) secured by Liens on any assets or property of the Borrower or any Restricted Subsidiary minus (b) the aggregate
amount of cash and Cash Equivalents on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, excluding
cash and Cash Equivalents which are or should be listed as “restricted” on the consolidated balance sheet of the Borrower
and the Restricted Subsidiaries as of such date. It is understood that to the extent the Borrower or any Restricted Subsidiary Incurs
any Indebtedness and receives the proceeds of such Indebtedness, for purposes of determining any Incurrence test under this Agreement
and whether the Borrower is in pro forma compliance with any such test, the proceeds of such Incurrence shall not be considered cash or
Cash Equivalents for purposes of any “netting” pursuant to clause (b) of this definition.
“Consolidated
Secured Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Secured
Debt as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA for
such Test Period.
“Consolidated
Total Assets” shall mean, as of any date of determination, the total amount of all assets of the Borrower and the Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP as of such date.
“Consolidated
Total Debt” shall mean, as of any date of determination, (a) the aggregate principal amount of indebtedness of the
Borrower and the Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but
excluding the effects of any discounting of indebtedness resulting from the application of purchase accounting in connection with
any Acquisition or other similar Investment similar to those made for Acquisition), consisting of third-party indebtedness for
borrowed money, Unpaid Drawings, Financing Lease Obligations and third-party debt obligations evidenced by promissory notes or
similar instruments, minus (b) the aggregate amount of cash and Cash Equivalents on the consolidated balance sheet of the
Borrower and the Restricted Subsidiaries on such date, excluding cash and Cash Equivalents which are listed as
“restricted” on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date. It is
understood that to the extent the Borrower or any Restricted Subsidiary Incurs any Indebtedness and receives the proceeds of such
Indebtedness, for purposes of determining any Incurrence test under this Agreement and whether the Borrower is in pro forma
compliance with any such test, the proceeds of such Incurrence shall not be considered cash or Cash Equivalents for purposes of any
“netting” pursuant to clause (b) of this definition.
“Consolidated
Total Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt
as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA for such
Test Period.
“Consolidated
Working Capital” shall mean, at any date, the excess of (a) the sum of all amounts (excluding all cash and Cash
Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like
caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date less (b) the sum of all
amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like
caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, including (for purposes of
both clauses (a) and (b)) current and long-term Deferred Revenue but excluding (for purposes of both clauses (a) and (b) above, as
applicable), without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness (including Letter of Credit
Obligations) under the Revolving Credit Facility, any Additional/Replacement Revolving Credit Facility, any Extended Revolving
Credit Facility or any other revolving credit facility that is effective in reliance on Section 10.1(u), to the extent otherwise
included therein, (iii) the current portion of interest, (iv) the current portion of current and deferred income taxes, (v) non-cash
compensation costs and expenses, (vi) any other liabilities that are not Indebtedness and will not be settled in cash or Cash
Equivalents during the next succeeding twelve month period after such date, (vii) the effects from applying recapitalization or
purchase accounting, (viii) any earn out obligations until 30 days after such obligation becomes contractually due and payable and
any earn-out obligation that becomes contractually due and payable to the extent (A) such Person is indemnified for the payment
thereof by a solvent Person reasonably acceptable to the Administrative Agent or (B) amounts to be applied to the payment thereof
are in escrow through customary arrangements and (ix) any asset or liability in respect of net obligations of such Person in respect
of Swap Contracts entered into in the ordinary course of business; provided that Consolidated Working Capital shall be
calculated without giving effect to (x) the depreciation of the Dollar relative to other foreign currencies or (y) changes to
Consolidated Working Capital resulting from non-cash charges and credits to consolidated current assets and consolidated current
liabilities (including, without limitation, derivatives and deferred income tax); provided, further, that for purposes
of calculating Excess Cash Flow, increases or decreases in working capital shall exclude the impact of adjusting items in the
definition of “Consolidated Net Income”.
“Contract
Consideration” shall have the meaning provided in the definition of the term “Excess Cash Flow.”
“Contractual
Obligation” shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of its property is bound other than the Obligations.
“Controlled
Investment Affiliate” shall mean, as to any Person, any other Person, other than any Investor, which directly or indirectly
controls, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such
Person) primarily for making direct or indirect equity or debt investments in the Borrower and/or other Person.
“Converted
Restricted Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Converted
Unrestricted Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Corrective Extension Agreement” shall
have the meaning provided in Section 2.15(f).
“Credit
Agreement Refinancing Indebtedness” shall mean (a) Permitted Equal Priority Refinancing Debt, (b) Permitted Junior
Priority Refinancing Debt or (c) Permitted Unsecured Refinancing Debt; provided that, in each case, such Indebtedness is
Incurred to Refinance, in whole or in part, existing Term Loans or existing Revolving Credit Loans (or unused Revolving Credit
Commitments), any then-existing Additional/Replacement Revolving Credit Loans (or unused Additional/Replacement Revolving Credit
Commitments), any then-existing Extended Revolving Credit Loans (or unused Extended Revolving Credit Commitments), or any Loans
under any then- existing Incremental Facility (or, if applicable, unused Commitments thereunder), or any then-existing Credit
Agreement Refinancing Indebtedness (“Refinanced Debt”); provided, further, that (i) except for any
of the following that are only applicable to periods after the Latest Maturity Date, the covenants, events of default and guarantees
of such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest rates), interest
margins, rate floors, fees, funding discounts, original issue discounts, maturity, currency denomination and prepayment or
redemption premiums and terms) (when taken as a whole) are determined by the Borrower to be either (A) consistent with market terms
and conditions and conditions at the time of Incurrence or effectiveness (as determined by the Borrower in good faith) or (B) not
materially more restrictive on the Borrower and the Restricted Subsidiaries than those applicable to the Refinanced Debt, when taken
as a whole (provided that if the documentation governing such Credit Agreement Refinancing Indebtedness contains a Previously
Absent Financial Maintenance Covenant, the Administrative Agent shall be given prompt written notice thereof and this Agreement
shall be amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility
(provided, however, that if (x) both the Refinanced Debt and the related Credit Agreement Refinancing Indebtedness
that includes a Previously Absent Financial Maintenance Covenant consists of a revolving credit facility (whether or not the
documentation therefor includes any other facilities) and (y) the applicable Previously Absent Financial Maintenance Covenant is a
“springing” financial maintenance covenant for the benefit of such revolving credit facility or a covenant only
applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall only
be required to be included in this Agreement for the benefit of each revolving credit facility hereunder (and not for the benefit of
any term loan facility hereunder) and such Credit Agreement Refinancing Indebtedness shall not be deemed “more
restrictive” solely as a result of such Previously Absent Financial Maintenance Covenant benefiting only such revolving credit
facilities; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at
least five Business Days prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such
terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five
Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees), (ii) any such Indebtedness in the form of bonds, notes, loans or debentures or which Refinances, in whole or in part,
existing Term Loans, shall have a maturity that is no earlier than the earlier of the maturity of the Refinanced Debt and the Latest
Maturity Date and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt; provided that the
foregoing requirements of this clause (ii) shall not apply to the extent such Indebtedness constitutes a customary bridge facility,
so long as the long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged satisfies the
requirements of this clause (ii) and such conversion or exchange is subject only to conditions customary for similar conversions or
exchanges, (iii) any such Indebtedness which Refinances any existing Revolving Credit Loans (or unused Revolving Credit
Commitments), any then-existing Additional/Replacement Revolving Credit Loans (or unused Additional/Replacement Revolving Credit
Commitments) or any then-existing Extended Revolving Credit Loans (or unused Extended Revolving Credit Commitments) shall have a
maturity that is no earlier than the maturity of such Refinanced Debt and shall not require any mandatory commitment reductions
prior to the maturity of such Refinanced Debt; provided that the foregoing requirements of this clause (iii) shall not apply
to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which any such
customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (iii) and such conversion or
exchange is subject only to conditions customary for similar conversions or exchanges, (iv) except to the extent otherwise permitted
under this Agreement (subject to a dollar for dollar usage of any other basket set forth in Section 10.1, if applicable), such
Indebtedness shall not have a greater principal amount (or shall not have a greater accreted value, if applicable) than the
principal amount (or accreted value, if applicable) of the Refinanced Debt plus unpaid accrued interest, fees and premiums
(including tender premiums) (if any) thereon, defeasance costs, underwriting discounts and fees and expenses (including OID, closing
payments, upfront fees or similar fees) associated with the Refinancing plus an amount equal to any existing commitments
unutilized and letters of credit undrawn, (v) such Refinanced Debt shall be repaid, repurchased, redeemed, defeased, acquired or
satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (including tender premiums) (if
any) in connection therewith shall be paid substantially concurrently with the date such Credit Agreement Refinancing Indebtedness
is Incurred or made effective, (vi) except to the extent otherwise permitted hereunder, the aggregate unused revolving commitments
under such Credit Agreement Refinancing Indebtedness shall not exceed the unused Revolving Credit Commitments,
Additional/Replacement Revolving Credit Commitments or Extended Revolving Credit Commitments, as applicable, being replaced plus
undrawn letters of credit, (vii) in the case of any such Indebtedness in the form of bonds, notes, loans or debentures or which
Refinances, in whole or in part, existing Term Loans, the terms thereof shall not require any mandatory repayment, redemption,
repurchase, acquisition or defeasance (other than (x) in the case of bonds, notes or debentures, customary change of control, asset
sale event or casualty, eminent domain or condemnation event offers, AHYDO Catch-Up Payments and customary acceleration any time
after an event of default and (y) in the case of any term loans, mandatory prepayments that are on terms (when taken as a whole) not
materially more favorable to the lenders or holders providing such Indebtedness than those applicable to the Refinanced Debt (when
taken as a whole) prior to the maturity date of the Refinanced Debt, (viii) any Credit Agreement Refinancing Indebtedness may not be
guaranteed by any Persons that do not guarantee the Obligations and (ix) any Credit Agreement Refinancing Indebtedness may not be
secured by any assets that do not secure the Obligations.
“Credit
Documents” shall mean this Agreement, the Security Documents, the Guarantee, the Fee Letter, each Letter of Credit, any promissory
notes issued by the Borrower hereunder, any Incremental Agreement, any Extension Agreement and any Customary Intercreditor Agreement entered
into after the Closing Date to which the Collateral Agent and/or the Administrative Agent is a party.
“Credit
Event” shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance, increase in the
amount, or extension of a Letter of Credit.
“Credit
Facility” shall mean any of the Initial Term Loan Facility, any Incremental Term Loan Facility, the Revolving Credit Facility,
any Additional/Replacement Revolving Credit Facility, any Extended Term Loan Facility or any Extended Revolving Credit Facility, as applicable.
“Credit
Party” shall mean, collectively and/or, as applicable, individually, Holdings, the Borrower and each Subsidiary Guarantor.
“Cumulative
Consolidated Net Income” shall mean, as at any date of determination, Consolidated Net Income for the period (taken as one accounting
period) commencing on July 1, 2017 and ending on the last day of the most recent fiscal quarter for which Section 9.1 Financials have
been delivered.
“Cure Amount” shall have the meaning provided
in Section 11.11(a).
“Cure Deadline” shall have the meaning
provided in Section 11.11(a).
“Cure Right” shall have the meaning provided
in Section 11.11(a).
“Customary
Intercreditor Agreement” shall mean (a) to the extent executed in connection with the Incurrence of secured Indebtedness
Incurred by a Credit Party, the Liens on the Collateral securing which are intended to rank equal in priority to the Liens on the
Collateral securing the Obligations (but without regard to the control of remedies), at the option of the Borrower and the
Collateral Agent acting together in good faith, either (i) any intercreditor agreement substantially in the form of the Equal
Priority Intercreditor Agreement or (ii) a customary intercreditor agreement in form and substance reasonably acceptable to the
Collateral Agent and the Borrower, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall
rank equal in priority to the Liens on the Collateral securing the Obligations (but without regard to the control of remedies) and
(b) to the extent executed in connection with the Incurrence of secured Indebtedness Incurred by a Credit Party, the Liens on the
Collateral securing which are intended to rank junior in priority to the Liens on the Collateral securing the Obligations, at the
option of the Borrower and the Collateral Agent acting together in good faith, either (i) an intercreditor agreement substantially
in the form of the Junior Priority Intercreditor Agreement or (ii) a customary intercreditor agreement in form and substance
reasonably acceptable to the Collateral Agent and the Borrower, which agreement shall provide that the Liens on the Collateral
securing such Indebtedness shall rank junior in priority to the Liens on the Collateral securing the Obligations.
“Debt
Fund Affiliate” shall mean any Affiliate of the Borrower (other than Holdings, the Borrower or any Restricted Subsidiary of
the Borrower) 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 or securities and that exercises investment discretion independent
from the private equity business of the Sponsor.
“Debt
Incurrence Prepayment Event” shall mean any Incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness,
but excluding any Indebtedness permitted to be Incurred under Section 10.1 (other than Incremental Term Loans Incurred in reliance on
clause (i)(x) of the proviso to Section 2.14(b), Permitted Additional Debt Incurred in reliance on Section 10.1(u)(i)(x) and, to the extent
relating to Term Loans, Credit Agreement Refinancing Indebtedness).
“Debt Surviving Company” shall have the
meaning provided in the recitals to this Agreement.
“Debtor
Relief Laws” shall mean the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States
or other applicable jurisdictions from time to time in effect.
“Default”
shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulting
Lender” shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the
definition of “Lender Default.”
“Deferred
Blocker Consideration” shall have the meaning assigned to such term in the Acquisition Agreement.
“Deferred
Company Consideration” shall have the meaning assigned to such term in the Acquisition Agreement.
“Deferred
Revenue” shall mean, at any date, the amount set forth opposite the caption “deferred revenue” (or any like caption
or included in any other caption, including current and non-current designations) on a consolidated balance sheet at such date; provided
that such balance should be determined excluding the effects of acquisition method accounting.
“Designated
Non-Cash Consideration” shall mean the Fair Market Value of consideration that is not deemed to be cash or Cash Equivalents
and that is received by the Borrower or its Restricted Subsidiaries in connection with a Disposition pursuant to Section 10.4(c) that
is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower delivered to the
Administrative Agent, setting forth the basis of such valuation (less the amount of the amount of cash or Cash Equivalents received in
connection with a subsequent Disposition, redemption or repurchase of, or collection or payment on, such Designated Non-Cash Consideration).
“Disposed
EBITDA” shall mean, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount
for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references
to the Borrower and the Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” (and in the component
financial definitions used therein) were references to such Sold Entity or Business and its Subsidiaries or to such Converted Unrestricted
Subsidiary and its Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business.
“Disposition” shall
have the meaning provided in Section 10.4. The terms “Disposal”, “Dispose” and “Disposed
of” shall have correlative meanings.
“Disposition
Percentage” shall mean, with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event required to be applied
pursuant to Section 5.2(a)(i), the applicable percentage of Net Cash Proceeds required to be offered on any date of determination to prepay
Term Loans.
“Disqualified
Capital Stock” shall mean, with respect to any Person, any Capital Stock of such Person that, by its terms (or by the terms
of any security or other Capital Stock into which it is convertible or for which it is putable or exchangeable) or upon the happening
of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking
fund obligation or otherwise, other than solely as a result of a change of control, asset sale event or casualty, eminent domain or condemnation
event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale event or casualty, eminent domain
or condemnation event shall be subject to the prior repayment in full of the Loans and all other Obligations (other than Hedging Obligations
under any Secured Hedging Agreement, Cash Management Obligations under Secured Cash Management Agreements or contingent indemnification
obligations and other contingent obligations not then due and payable), (b) is redeemable or exchangeable at the option of the holder
thereof (other than solely for Qualified Capital Stock), other than as a result of a change of control, asset sale event or casualty,
eminent domain or condemnation event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale
event or casualty, eminent domain or condemnation event shall be subject to the prior repayment in full of the Loans and all other Obligations
(other than Hedging Obligations under any Secured Hedging Agreement, Cash Management Obligations under Secured Cash Management Agreements
or contingent indemnification obligations and other contingent obligations not then due and payable), in whole or in part, or (c) provides
for the scheduled payment of dividends in cash, in each case prior to the date that is ninety-one (91) days after the Latest Maturity
Date; provided that, if such Capital Stock is issued pursuant to any plan for the benefit of officers, directors, employees or
consultants of Holdings (or any Parent Entity thereof), the Borrower or any of its Subsidiaries or by any such plan to such officers,
directors, employees or consultants, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required
to be repurchased by Holdings (or any Parent Entity thereof), the Borrower or any of its Subsidiaries in order to satisfy applicable statutory
or regulatory obligations or as a result of such officer’s, director’s, employee’s or consultant’s termination,
death or disability.
“Disqualified
Lenders” shall mean (a) such Persons that have been specified in writing to the Administrative Agent and the Lead Arrangers
on or prior to June 19, 2017 as being “Disqualified Lenders,” (b) those Persons who are competitors of the Borrower and its
Subsidiaries (including the Target, Amplify and their respective Subsidiaries) that are separately identified in writing by the Borrower
from time to time to the Administrative Agent and (c) in the case of each of clauses (a) and (b), any of their Affiliates (which, for
the avoidance of doubt, shall not include any bona fide debt investment funds that are Affiliates of the Persons referenced in clause
(b) above) that are either (i) identified in writing to the Administrative Agent by the Borrower from time to time or (ii) readily identifiable
on the basis of such Affiliate’s name as an Affiliate of such entity; provided that any Person that is a Lender and subsequently
becomes a Disqualified Lender (but was not a Disqualified Lender on the Closing Date or at the time it became a Lender) shall not retroactively
be deemed to be a Disqualified Lender hereunder. The identity of Disqualified Lenders may be communicated by the Administrative Agent
to a Lender upon request, but will not be otherwise posted or distributed to any Person by the Administrative Agent.
“Distressed Person” shall have the meaning
provided in the definition of “Lender-Related Distress Event.”
“Dollars,” “U.S. Dollars”
and “$” shall mean dollars in lawful currency of the United States of America.
“Domestic Restricted Subsidiary”
shall mean each Restricted Subsidiary of the Borrower that is a Domestic Subsidiary.
“Domestic Subsidiary”
shall mean each Subsidiary of the Borrower that is organized under the Applicable Laws of the United States, any state thereof, or the
District of Columbia.
“Drawing” shall have the meaning provided
in Section 3.4(b).
“EEA
Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country that is
subject to the supervision of an EEA Resolution Authority, (b) any Person established in an EEA Member Country that is a parent of an
institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that 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” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA
Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective
Yield” shall mean, as to any Indebtedness, the effective yield paid by the Borrower on such Indebtedness as determined by the
Borrower and the Administrative Agent in a manner consistent with generally accepted financial practices, taking into account the applicable
interest rate margins, any interest rate “floors” (the effect of which floors shall be determined in a manner set forth in
the proviso below and assuming that, if interest on such Indebtedness is calculated on the basis of a floating rate, that the “Eurodollar
Rate” or similar component of such formula is included in the calculation of Effective Yield) or similar devices and all fees, including
upfront or similar fees or OID (amortized over the shorter of (x) the remaining Weighted Average Life to Maturity of such Indebtedness
and (y) the four years following the date of Incurrence thereof, and, if applicable, assuming any Additional/Replacement Revolving Credit
Commitments were fully drawn) payable generally by the Borrower to Lenders or other institutions providing such Indebtedness, but excluding
any commitment fees, arrangement fees, structuring fees, closing payments or other similar fees payable in connection therewith that are
not generally shared with all relevant Lenders (in their capacities as lenders) and, if applicable, ticking fees accruing prior to the
funding of such Indebtedness and customary consent or amendment fees for an amendment paid generally to consenting Lenders (and regardless
of whether any such fees are paid to, or shared in whole or in part with, any Lender); provided that, with respect to any Indebtedness
that includes a “floor”, (a) to the extent that the Reference Rate on the date that the Effective Yield is being calculated
is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the
purpose of calculating the Effective Yield and (b) to the extent that the Reference Rate on the date that the Effective Yield is being
calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.
“Eligible
Assignee” shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (subject, in
each case, to such consents, if any, as may be required under Section 13.6(b)), other than, in each case, (i) a natural person, (ii) a
Defaulting Lender or (iii) a Disqualified Lender.
“Employee
Investors” shall mean the current, former or future officers, directors, managers and employees (and Controlled Investment Affiliates
and Immediate Family Members of the foregoing) of Holdings, the Borrower, the Restricted Subsidiaries or any Parent Entity who are or
who become direct or indirect investors in Holdings, any Parent Entity, any Equityholding Vehicle, or in the Borrower, including any such
officers, directors, managers or employees owning through an Equityholding Vehicle. For the avoidance of doubt, the Rollover Investors
constitute Employee Investors.
“EMU” shall mean the economic and monetary
union as contemplated in the Treaty on European Union.
“Environment”
shall mean ambient air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata and natural
resources such as wetlands, flora and fauna.
“Environmental
Claims” shall mean any and all administrative, regulatory or judicial actions, suits, orders, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by the Borrower or any of
its Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing
transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law or any
permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including (i) any
and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from the Release or threatened Release of Hazardous
Materials or arising from alleged injury or threat of injury to health, safety or the Environment.
“Environmental
Law” shall mean any applicable federal, state, provincial, territorial, foreign, municipal or local statute, law, rule, regulation,
ordinance, code, permit, binding agreement issued, promulgated or entered into by or with any Governmental Authority or rule of common
law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including
any binding judicial or administrative order, consent decree or judgment, in each case relating to pollution or the protection of the
Environment including, those relating to generation, use, handling, storage, treatment, Release or threat of Release of Hazardous Materials
or, to the extent relating to exposure to Hazardous Materials, human health or safety.
“Equal
Priority Intercreditor Agreement” shall mean the Equal Priority Intercreditor Agreement substantially in the form of Exhibit
G-1 among (x) the Collateral Agent and (y) one or more representatives of the holders of one or more classes of Permitted Additional Debt
and/or Permitted Equal Priority Refinancing Debt, with any immaterial changes and material changes thereto in light of the prevailing
market conditions, which material changes shall be posted to the Lenders not less than five Business Days before execution thereof and,
if the Required Lenders shall not have objected to such changes within five Business Days after posting, then the Required Lenders shall
be deemed to have agreed that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement
(with such changes) is reasonable and to have consented to such intercreditor agreement (with such changes) and to the Administrative
Agent’s and/or Collateral Agent’s execution thereof.
“Equity Contribution” shall have the meaning
provided in the recitals to this Agreement.
“Equityholding
Vehicle” shall mean any Parent Entity and any equityholder thereof through which current, former or future officers, directors,
employees, managers or consultants of Holdings or the Borrower or any of their Subsidiaries or Parent Entity hold Capital Stock of such
Parent Entity.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Section references to ERISA are to ERISA
as in effect on the Closing Date and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
“ERISA
Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) that together with Holdings, the Borrower or a Restricted
Subsidiary thereof is treated as a “single employer” within the meaning of Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(b), (c), (m) and (o) of
the Code.
“Escrowed
Proceeds” shall mean the proceeds from the offering of any debt securities or other Indebtedness paid into an escrow account
with an independent escrow agent on the date of the applicable offering or incurrence pursuant to escrow arrangements that permit the
release of amounts on deposit in such escrow account upon satisfaction of certain conditions or the occurrence of certain events. The
term “Escrowed Proceeds” shall include any interest earned on the amounts held in escrow.
“EU Bail-In Legislation
Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person),
as in effect from time to time.
“Eurodollar Borrowing” shall mean each
Borrowing of a Eurodollar Loan.
“Eurodollar
Loan” shall mean any Loan bearing interest at a rate determined by reference to the Eurodollar Rate.
“Eurodollar
Rate” shall mean, (a) with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum equal to
greater of (i) (A) with regard to Initial Term Loans only, 1.00% and (B) with regard to Revolving Credit Loans, 0.00% and (ii) the product
of (A) the LIBOR in effect for such Interest Period and (B) Statutory Reserves
Where,
“LIBOR”
shall mean, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters
Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being
the LIBOR01 page) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period
in Dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest
Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or
service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other
service which displays LIBOR for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such
Interest Period; provided that if LIBOR is quoted under either of the preceding clauses (i) or (ii), but there is no such quotation
for the Interest Period elected, LIBOR shall be equal to the Interpolated Rate; and
“Statutory
Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative
Agent or any Lender (including any branch, Affiliate, or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities
(as defined in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation
D of the Board) and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that
may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
and (b) with respect to any ABR Loan, an interest rate
per annum equal to the LIBOR in effect for an Interest Period of one month
Where,
“LIBOR”
shall mean (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters
Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being
the LIBOR01 page) for deposits in Dollars with a one-month term, determined as of approximately 11:00 a.m. (London, England time), on
the day of determination of such rate, or
(ii)
in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service
shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service
which displays LIBOR for deposits in Dollars with a one-month term, determined as of approximately 11:00 a.m. (London, England time) on
the date of determination of such rate; provided that if LIBOR is quoted under either of the preceding clauses (i) or (ii), but
there is no such quotation for a one- month Interest Period, LIBOR shall be equal to the Interpolated Rate.
“Event of Default” shall have the meaning
provided in Section 11.
“Excess Cash Flow” shall mean, for any
period, an amount equal to the excess of
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(a)
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the sum, without duplication, of:
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(i)
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Consolidated Net Income for such period;
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(ii)
an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income (provided
that, in each case, if any non-cash charge represents an accrual or reserve for cash items in any future period, the cash payment in respect
thereof in such future period shall be subtracted from Excess Cash Flow in such future period);
(iii)
decreases in Consolidated Working Capital and decreases in long-term accounts receivable, in each case as of the end of such period
from the Consolidated Working Capital and long-term accounts receivable as of the beginning of such period (except, in the case of each
of the foregoing, any such increases or decreases that are as a result of the reclassification of items from short-term to long-term or
vice versa) (other than any such decreases or increases, as applicable, arising from Acquisitions or Dispositions outside the ordinary
course of assets, business units or property by the Borrower or any of the Restricted Subsidiaries completed during such period or the
application of recapitalization or purchase accounting);
(iv)
an amount equal to the aggregate net non-cash loss on the Disposition of assets, business units or property by the Borrower and
the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in
arriving at such Consolidated Net Income;
(v)
cash payments received in respect of Hedging Agreements during such period to the extent not included in arriving at such Consolidated
Net Income; and
(vi)
income tax expense to the extent deducted in arriving at such Consolidated Net Income (net of any adjustments pursuant to clause
(o) of Consolidated Net Income for cash tax benefits related to the tax amortization of intangible assets in such period);
minus
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(b)
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the sum, without duplication, of:
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(i)
an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (but excluding any non-cash
credit to the extent representing the reversal of an accrual or reserve described in clause (a)(ii) above) and cash charges included in
clauses (a) through (w) of the definition of the term “Consolidated Net Income”;
(ii)
without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Capital Expenditures
or acquisitions of Intellectual Property made in cash or accrued during such period, except to the extent that such Capital Expenditures
or acquisitions of Intellectual Property were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock
by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition
outside the ordinary course of business;
(iii) the
aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (A) the
principal component of payments in respect of Financing Lease Obligations, (B) all scheduled principal repayments of the Term Loans,
Permitted Additional Debt and Credit Agreement Refinancing Indebtedness, in each case to the extent such payments are permitted
hereunder and actually made and (C) the amount of any mandatory prepayment of Term Loans actually made pursuant to Section 5.2(a)(i)
and any mandatory redemption, repurchase, prepayment, defeasance, acquisition or similar payment of Permitted Additional Debt or
Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in each
such case from the proceeds of any Disposition and that resulted in an increase to Consolidated Net Income (and have not otherwise
been excluded under clause (c) of the definition thereof) and not in excess of the amount of such increase but excluding (1) all
other prepayments, repurchases, defeasances, acquisitions, redemptions and/or similar payments of Term Loans and (2) all prepayments
of revolving credit loans and swingline loans permitted hereunder made during such period (other than in respect of any revolving
credit facility (other than in respect of (x) the Revolving Credit Facility, any Extended Revolving Credit Facility or
Additional/Replacement Revolving Credit Facility and (y) other revolving loans that are effective in reliance on Section 10.1(a) or
Section 10.1(u)) to the extent there is an equivalent permanent reduction in commitments thereunder)), except to the extent financed
by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the
Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(iv)
an amount equal to the aggregate net non-cash gain on the Disposition of property by the Borrower and the Restricted Subsidiaries
during such period (other than the Disposition of property in the ordinary course of business) to the extent included in arriving at such
Consolidated Net Income;
(v)
increases in Consolidated Working Capital and increases in long-term accounts receivable in each case as of the end of such period
from the Consolidated Working Capital and long-term accounts receivable as of the beginning of such period (except, in the case of each
of the foregoing, any such increases or decreases that are as a result of the reclassification of items from short-term to long-term or
vice versa) (other than any such increases or decreases, as applicable, arising from Acquisitions or Dispositions outside the ordinary
course by the Borrower and the Restricted Subsidiaries during such period or the application of recapitalization or purchase accounting);
(vi)
cash payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower
and the Restricted Subsidiaries other than Indebtedness, except to the extent that such payments were financed by the Incurrence of long-
term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted
Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(vii)
without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Investments made in
cash (other than Investments made pursuant to Sections 10.5(b), (f), (g), (h), (i), (n) and (s)) during such period, except to the extent
that such Investments were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making
of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary
course of business;
(viii)
without duplication of amounts deducted pursuant to clause (xii) below, the amount of Restricted Payments (other than Restricted
Investments) paid in cash during such period, except to the extent that such Restricted Payments were financed by the Incurrence of long-term
Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted
Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(ix)
the aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries in cash during such period (including
expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, except to the
extent that such expenditures were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the
making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside
the ordinary course of business;
(x) the
aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted
Subsidiaries during such period that are required to be made in connection with any prepayment, redemption, defeasance, acquisition,
repurchase and/or similar payment of Indebtedness, except to the extent that such payments were financed by the Incurrence of
long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of
the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(xi)
without duplication of amounts deducted from Excess Cash Flow in other periods, (A) the aggregate consideration required to be
paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”)
entered into prior to or during such period and (B) any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries
(the “Planned Expenditures”) in the case of each of clauses (A) and (B), relating to Acquisitions (or other similar
Investments), Capital Expenditures (including Capitalized Software Expenditures) or acquisitions of Intellectual Property to be consummated
or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except to the extent financed
by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower
or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business); provided
that, to the extent that the aggregate amount of cash actually utilized to finance such Acquisitions (or other similar Investments), Capital
Expenditures (including Capitalized Software Expenditures) or acquisitions of Intellectual Property during such following period of four
consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added
to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters;
(xii)
without duplication of any amounts deducted pursuant to clause (viii) above, the aggregate amount of all payments paid in cash
by the Borrower and the Restricted Subsidiaries during such period in connection with, or necessary to consummate, the Transactions;
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(xiii)
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income taxes, including penalties and interest, paid in cash in such period; and
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(xiv)
cash expenditures made in respect of Hedging Agreements during such period to the extent not deducted in arriving at such Consolidated
Net Income.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Rate” shall mean on any day with respect to any currency (other than Dollars), the rate at which such currency may be
exchanged into any other currency (including Dollars), as set forth at approximately 11:00 a.m. (London time) on such day on the
Bloomberg page or screen for such currency. In the event that such rate does not appear on any Bloomberg page or screen, the
Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be
agreed by the Administrative Agent and the Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange
operations in respect of such currency are then being conducted, at or about 11:00 a.m., local time, on such date for the purchase
of the relevant currency for delivery two Business Days later.
“Excluded Capital Stock” shall mean:
(a)
any Capital Stock with respect to which, in the reasonable judgment of the Borrower and the Collateral Agent as agreed in writing,
the cost or other consequences (including any material adverse tax consequences) of pledging such Capital Stock shall be excessive in
view of the benefits to be obtained by the Secured Parties therefrom,
(b)
solely in the case of any pledge of Capital Stock of any Foreign Subsidiary or FSHCO to secure the Obligations, any Capital Stock
that is Voting Stock of such Foreign Subsidiary or FSHCO in excess of 65% of the outstanding Capital Stock that is Voting Stock of such
Foreign Subsidiary or FSHCO,
(c)
any Capital Stock to the extent, and for so long as, the pledge thereof would be prohibited by any Applicable Law (including financial
assistance, fraudulent conveyance, preference, thin capitalization, capital preservation or similar laws or regulations and any legally
effective requirement to obtain the consent of any Governmental Authority to such pledge unless such consent has been obtained),
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(d)
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any “margin stock” (as defined in Regulation U),
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(e)
the Capital Stock of any Person, other than any Wholly-Owned Restricted Subsidiary to the extent, and for so long as, the pledge
of such Capital Stock would be prohibited by the terms of any Contractual Obligation, Organizational Document, joint venture agreement
or shareholders’ agreement applicable to such Person or legally effective Contractual Obligations or create an enforceable right
of termination in favor of any other party thereto (other than Holdings, the Borrower or any wholly owned Restricted Subsidiary of the
Borrower),
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(f)
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the Capital Stock of any Subsidiary of a Foreign Subsidiary or any Subsidiary of a FSHCO,
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(g)
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the Capital Stock of any Unrestricted Subsidiary or of any Receivables Subsidiary, and
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(h)
any Capital Stock of any Subsidiary to the extent that the pledge of such Capital Stock would result in material adverse Tax consequences
to Holdings, the Borrower or any Subsidiary as reasonably determined by the Borrower in consultation with (but without the consent of)
the Collateral Agent.
“Excluded
Contribution” shall mean the Net Cash Proceeds, the Fair Market Value of marketable securities or the Qualified Proceeds, in
each case received by the Borrower from capital contributions to the common Capital Stock of the Borrower or sales or issuances of common
Capital Stock of the Borrower permitted hereunder, in each case, after the Closing Date (other than any amount to the extent used in the
Cure Amount) and designated by the Borrower to the Administrative Agent as an Excluded Contribution within 5 Business Days of the date
such capital contributions are made or the date the applicable Capital Stock is issued or sold.
“Excluded Property” shall have the meaning
provided in the Security Agreement.
“Excluded Subsidiary” shall mean:
(a)
any Subsidiary that is not a wholly owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor
pursuant to the requirements of Section 9.10 (for so long as such Subsidiary remains a non-wholly owned Subsidiary),
(b)
any Subsidiary that is prohibited by (x) Applicable Law (including financial assistance, fraudulent conveyance, preference, thin
capitalization, capital preservation or similar laws or regulations) or (y) Contractual Obligation from guaranteeing the Obligations (and
for so long as such restrictions or any replacement or renewal thereof is in effect); provided that in the case of clause (y),
such Contractual Obligation existed on the Closing Date or, with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary
after the Closing Date (and so long as such Contractual Obligation was not incurred in contemplation of such acquisition), on the date
such Subsidiary is so acquired,
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(c)
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any Domestic Subsidiary that is (i) a FSHCO or (ii) a direct or indirect Subsidiary of a
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CFC,
(d) any
Immaterial Subsidiary (provided that the Borrower shall not be permitted to exclude Immaterial Subsidiaries from guaranteeing
the Obligations to the extent that (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries (other than
Unrestricted Subsidiaries) excluded by this clause (d) exceeds 10% of the consolidated gross revenues of the Borrower and its
Restricted Subsidiaries that are not otherwise Excluded Subsidiaries by virtue of any of the other clauses of this definition,
except for this clause (d), for the Test Period most recently ended on or prior to the date of determination or (ii) the aggregate
amount of total assets for all Immaterial Subsidiaries (other than Unrestricted Subsidiaries) excluded by this clause (d) exceeds
10% of the aggregate amount of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries that are not otherwise
Excluded Subsidiaries by virtue of any other clauses of this definition, except for this clause (d), as at the end of the Test
Period most recently ended on or prior to the date of determination),
(e)
any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower (confirmed
in writing by notice to the Borrower and the Collateral Agent), the cost or other consequences (including any material adverse Tax consequences)
of providing a guarantee shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom,
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(f)
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each Foreign Subsidiary and each Unrestricted Subsidiary,
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(g)
each other Restricted Subsidiary acquired pursuant to an Acquisition or other similar Investment and financed with secured Indebtedness
Incurred pursuant to Section 10.1(j) and the Liens securing which are permitted by Section 10.2(f) (and, for the avoidance of doubt, not
Incurred in contemplation of such Acquisition or other similar Investment), and each Restricted Subsidiary acquired in such Acquisition
or other similar Investment that guarantees such Indebtedness, in each case to the extent that, and for so long as, the documentation
relating to such Indebtedness to which such Restricted Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations,
(h)
any Subsidiary to the extent that the guarantee of the Obligations would result in material adverse tax consequences to the Borrower
or any Subsidiary as reasonably determined by the Borrower in consultation with (but without the consent of) the Administrative Agent,
and confirmed in writing by notice to the Borrower and the Collateral Agent,
(i)
any Subsidiary that would require any consent, approval, license or authorization from any Governmental Authority to provide a
guarantee unless such consent, approval, license or authorization has been received, or is received after commercially reasonable efforts
by such Subsidiary to obtain the same, which efforts may be requested by the Administrative Agent,
(j)
any not-for-profit Subsidiaries, Captive Insurance Companies, Receivables Subsidiary or other Special Purpose Subsidiaries designated
in writing by the Borrower from time to time to the Administrative Agent and the Collateral Agent, and
(k)
any Subsidiary that does not have the legal capacity to provide a guarantee of the Obligations (provided that the lack of such
legal capacity does not arise from any action or omission of Holdings or any other Credit Party).
“Excluded
Swap Obligation” shall mean, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a
portion of the guarantee of such Guarantor pursuant to the Guarantee of, or the grant by such Guarantor of a security interest to
secure, such Swap Obligation (or any guarantee pursuant to the Guarantee thereof) is or becomes illegal or unlawful 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) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract
participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving pro forma
effect to any applicable keep well, support, or other agreement for the benefit of such Guarantor and any and all applicable
guarantees of such Guarantor’s Swap Obligations by other Credit Parties), at the time the guarantee of (or grant of such
security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (ii)
in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act,
because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the
time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with
respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such
Guarantor as specified in any agreement between the relevant Credit Parties and Hedge Bank applicable to such Swap Obligations. If a
Swap Obligation arises under a Master Agreement governing more than one Swap, such exclusion shall apply only to the portion of such
Swap Obligation that is attributable to the Swap for which such guarantee or security interest is or becomes excluded in accordance
with the first sentence of this definition.
“Excluded Taxes” shall have the meaning
provided in Section 5.4(a).
“Existing
Class” shall mean Existing Term Loan Classes and each Class of Existing Revolving Credit Commitments.
“Existing
Credit Agreement” shall mean that certain Credit Agreement, dated as of December 21, 2016 (as amended, supplemented or otherwise
modified from time to time prior to the Closing Date), by and among Wirepath Home Systems, LLC, Wirepath Home Systems Holdco LLC, the
lenders from time to time party thereto referred to therein, Antares Capital LP, as the administrative agent and collateral agent, and
the other parties thereto.
“Existing
Debt Refinancing” shall mean the repayment in full of all principal, accrued and unpaid interest, fees, premium, if any, and
other amounts outstanding under the Existing Credit Agreement, other than (i) contingent obligations not then due and payable and that
by their terms survive the termination of the Existing Credit Agreement and (ii) the Existing Letters of Credit, the termination of all
commitments to extend credit thereunder and the termination and/or release of any security interests and guarantees in connection therewith.
“Existing Letters of Credit” shall mean
all the letters of credit listed on Schedule 1.1(b).
“Existing Revolving Credit Class” shall
have the meaning provided in Section 2.15(b).
“Existing Revolving Credit Commitments”
shall have the meaning provided in Section 2.15(b).
“Existing Revolving Credit Loans” shall
have the meaning provided in Section 2.15(b).
“Existing Term Loan Class” shall have the
meaning provided in Section 2.15(a).
“Expected Cure Amount” shall have the meaning
provided in Section 11.11(b).
“Extended Loans/Commitments”
shall mean Extended Term Loans, Extended Revolving Credit Loans and/or Extended Revolving Credit Commitments.
“Extended Repayment Date” shall have the
meaning provided in Section 2.5(c).
“Extended Revolving Credit Commitments”
shall have the meaning provided in Section 2.15(b).
“Extended Revolving Credit
Facility” shall mean each Class of Extended Revolving Credit Commitments established pursuant to Section 2.15(b).
“Extended Revolving Credit Loans” shall
have the meaning provided in Section 2.15(b).
“Extended Term Loan Facility”
shall mean each Class of Extended Term Loans made pursuant to Section 2.15.
“Extended Term Loan Repayment Amount” shall
have the meaning provided in Section 2.5(c).
“Extended Term Loans” shall have the meaning
provided in Section 2.15(a).
“Extending Lender” shall have the meaning
provided in Section 2.15(c).
“Extension Agreement” shall have the meaning
provided in Section 2.15(d).
“Extension Date” shall have the meaning
provided in Section 2.15(e).
“Extension Election” shall have the meaning
provided in Section 2.15(c).
“Extension Request” shall mean Term Loan
Extension Requests and Revolving Credit Extension Requests.
“Extension
Series” shall mean all Extended Term Loans or Extended Revolving Credit Commitments (as applicable) that are established pursuant
to the same Extension Agreement (or any subsequent Extension Agreement to the extent such Extension Agreement expressly provides that
the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any
previously established Extension Series) and that provide for the same interest margins, extension fees, if any, and amortization schedule.
“Fair
Market Value” shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration
obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at
arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics
of such asset, as reasonably determined by the Borrower.
“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (and any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices pursuant
to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (or any law implementing
such an intergovernmental agreement).
“FCPA” shall have the meaning provided
in Section 8.19.
“Federal
Funds Effective Rate” shall mean, 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.
“Fee
Letter” shall mean the Credit Facilities Fee Letter, dated as of June 19, 2017, among UBS AG, Stamford Branch, UBS Securities
LLC, SunTrust Bank, SunTrust Robinson Humphrey, Inc. and Holdings.
“Fees” shall mean all amounts payable pursuant
to or referred in Section 4.1.
“Financial Performance Covenant” shall
mean the covenant of the Borrower set forth in Section 10.10.
“Financial Performance Covenant Event of Default”
shall have the meaning provided in Section 11.3.
“Financing
Lease Obligation” shall mean, as applied to any Person, an obligation that is required to be accounted for as a financing or
capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement
for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability
in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding
the footnotes thereto) in accordance with GAAP.
“First
Lien Obligations” shall mean the Obligations, any Permitted Additional Debt Obligations (other than any Permitted Additional
Debt Obligations that are unsecured or are secured by a Lien ranking junior to the Liens securing the Obligations (but without regard
to control of remedies)) and any Permitted Equal Priority Refinancing Debt and Indebtedness in respect of Term Loan Exchange Notes, collectively.
“Flood Documents” shall have the meaning
provided in Section 9.14(c)(i).
“Flood Hazard Property” shall have the
meaning provided in Section 9.14(c)(i).
“Flood
Insurance Laws” shall mean, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the
National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute
thereto, (b) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (c) the Biggert-Waters
Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign
Plan” shall mean any pension plan maintained or contributed to by Holdings, the Borrower or any Restricted Subsidiary with respect
to its respective employees employed outside the United States.
“Foreign Restricted Subsidiary” shall mean
any Restricted Subsidiary that is not a Domestic Subsidiary.
“Foreign Subsidiary” shall mean each Subsidiary
of the Borrower that is not a Domestic Subsidiary.
“Fronting Fee” shall have the meaning provided
in Section 4.1(b).
“FSHCO”
shall mean any direct or indirect Domestic Subsidiary that has no material assets other than Capital Stock (including any debt instrument
treated as equity for U.S. federal income tax purposes) or Indebtedness of one or more direct or indirect Foreign Subsidiaries that are
CFCs.
“Funded
Debt” shall mean all indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than
one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of the
Borrower or any such Restricted Subsidiary, to a date more than one year from such date or arises under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness
in respect of the Loans.
“GA Equityholders” shall mean General Atlantic
(Amplify) HoldCo LLC.
“GAAP”
shall mean generally accepted accounting principles in the United States of America, as in effect from time to time, subject to Section
1.3(a). Notwithstanding the foregoing, at any time after adoption of IFRS by the Borrower for its financial statements and reports for
all financial reporting purposes, the Borrower may elect to apply IFRS for all purposes of this Agreement and the other Credit Documents,
in lieu of United States GAAP, and, upon any such election, references herein or in any other Credit Document to GAAP shall be construed
to mean IFRS as in effect from time to time; provided that (a) any such election once made shall be irrevocable (and shall only
be made once), (b) all financial statements and reports required to be provided after such election pursuant to this Agreement shall be
prepared on the basis of IFRS and (c) from and after such election, all ratios, computations and other determinations (i) based on GAAP
contained in this Agreement shall be computed in conformity with IFRS and (ii) in this Agreement that require the application of GAAP
for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated
or determined in accordance with GAAP; provided, further, that in the event of any such election by the Borrower, any financial
ratio calculations or thresholds (including the Financial Maintenance Covenant) in this Agreement may be recalibrated to reflect the election
to implement IFRS so long as (1) such recalibration is limited to changes in the calculation of such thresholds or covenant levels due
to the effect of differences between GAAP and IFRS, (2) the recalibrated ratios and calculations shall be mutually agreed between the
Administrative Agent and the Borrower, unless the Required Lenders have given notice of their objection to such recalibration within five
Business Days of receiving notice thereof, and (3) any such recalibration shall be done in a manner such that after giving effect to such
recalibration, the recalibrated thresholds and covenant levels shall be consistent with the intention of the respective thresholds and
covenant levels calculated under GAAP prior to such election. The Borrower shall give notice of any election to the Administrative Agent
with 10 Business Days of such election. For the avoidance of doubt, solely making an election (without any other action) referred to in
this definition will not be treated as an incurrence of Indebtedness.
“Governmental
Authority” shall mean the government of the United States, any foreign country or any multinational authority, or any
state, province, territory, municipality or other political subdivision thereof, and any entity, body or authority exercising
executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, including the PBGC
and other quasi-governmental entities established to perform such functions.
“Guarantee”
shall mean the Guarantee, dated as of the Closing Date, made by each Guarantor in favor of the Collateral Agent for the benefit of the
Secured Parties, substantially in the form of Exhibit A.
“Guarantee
Obligations” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness
of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation
of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor
to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect
thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments
for deposit or collection 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 or disposition of assets permitted under this Agreement (other than with respect
to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of
the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Guarantors”
shall mean (a) Holdings, (b) each wholly owned Domestic Subsidiary of the Borrower that is Restricted Subsidiary (other than an Excluded
Subsidiary) on the Closing Date, (c) the Borrower (other than with respect to its own Obligations) and (d) each Subsidiary of the Borrower
that becomes a party to the Guarantee after the Closing Date pursuant to Section 9.10.
“Hazardous
Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam
insulation, transformers or other equipment that contains dielectric fluid containing regulated levels of polychlorinated biphenyls, asbestos,
asbestos-containing materials, mold and radon gas; (b) any chemicals, materials or substances defined as or included in the definition
of “hazardous substances,” “hazardous waste,” “waste,” “hazardous materials,” “extremely
hazardous waste,” “restricted hazardous waste,” “subject waste,” “toxic substances,” “toxic
pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any Applicable Law pertaining
to pollution or the protection of the Environment; and (c) any other chemical, material or substance, which is prohibited, limited or
regulated by any Applicable Law pertaining to pollution or the protection of the Environment.
“Hedge
Bank” shall mean any Person that is a counterparty to a Hedging Agreement with a Credit Party or one of its Restricted Subsidiaries,
in its capacity as such, and that either (i) is a Lender, an Agent, a Lead Arranger, a Joint Bookrunner or an Affiliate of a Lender, an
Agent, a Lead Arranger or a Joint Bookrunner at the time it enters into such Hedging Agreement or (ii) becomes a Lender, an Agent or an
Affiliate of a Lender or an Agent after it has entered into such Hedging Agreement; provided that no such Person (except an Agent)
shall be considered a Hedge Bank until such time as it shall have delivered written notice to the Collateral Agent that such a transaction
has been entered into and that such Person constitutes a Hedge Bank entitled to the benefits of the Security Documents. For purposes of
the preceding sentence, a Person may deliver one notice confirming that it constitutes a “Hedge Bank” with respect to all
Hedging Agreements entered into pursuant to a specified Master Agreement. For the avoidance of doubt, each Agent shall constitute a Hedge
Bank to the extent it has entered into a Hedging Agreement.
“Hedging
Agreement” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond
price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction
is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations,
which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement (any such
master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or
liabilities under any Master Agreement.
“Hedging
Obligations” shall mean, with respect to any Person, the obligations of such Person under Hedging Agreements.
“Historical
Financial Statements” shall mean (a) audited consolidated balance sheets of the Wirepath Home Systems Holdco LLC (or the predecessor
thereto) and its subsidiaries as at the end of, and related consolidated statements of operations, statement of members’ equity
and statement of cash flows of Wirepath Home Systems Holdco LLC (or the predecessor thereto) and its subsidiaries for, the fiscal years
ended December 31, 2015 and December 31, 2016 and (b) an unaudited consolidated balance sheet of Wirepath Home Systems Holdco LLC (or
the predecessor thereto) and its subsidiaries as of March 31, 2017, and the related consolidated statement of operations, statement of
members’ equity and statement of cash flows as of and for the three-month period ended March 31, 2017.
“Holdings”
shall mean (i) Holdings (as defined in the preamble to this Agreement) or (ii) at the election of the Borrower, any other Person or Persons
(the “New Holdings”) that is a Subsidiary of (or are Subsidiaries of) Holdings or of any Parent Entity of Holdings
(or the previous New Holdings, as the case may be) (the “Previous Holdings”) but not the Borrower; provided
that (a) such New Holdings directly or indirectly owns 100% of the Capital Stock of the Borrower, (b) the New Holdings shall expressly
assume all the obligations of the Previous Holdings under this Agreement and the other Credit Documents pursuant to a supplement hereto
or thereto in form and substance reasonably satisfactory to the Administrative Agent, (c) the New Holdings shall have delivered to the
Administrative Agent a certificate of an Authorized Officer stating that such substitution and any supplements to the Credit Documents
preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (d) if reasonably
requested by the Administrative Agent, an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent
shall be delivered by the Borrower to the Administrative Agent to the effect that, without limitation, such substitution does not breach
or result in a default under this Agreement or any other Credit Document, (e) all Capital Stock of the Borrower and substantially all
of the other assets of the Previous Holdings are contributed or otherwise transferred to such New Holdings and pledged to secure the Obligations
and (f) no Event of Default has occurred and is continuing at the time of such substitution and such substitution does not result in any
Event of Default or material Tax liability; provided, further, that if each of the foregoing is satisfied, the Previous
Holdings shall be automatically released from all its obligations under the Credit Documents and any reference to “Holdings”
in the Credit Documents shall be meant to refer to the “New Holdings.”
“Immaterial
Subsidiary” shall mean, at any date of determination, any Restricted Subsidiary of the Borrower (a) whose total assets (when
combined with the assets of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany obligations) at the last day
of the Test Period most recently ended on or prior to such determination date were an amount equal to or less than 5% of the Consolidated
Total Assets of the Borrower and its Restricted Subsidiaries at such date and (b) whose gross revenues (when combined with the revenues
of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany obligations) for such Test Period were an amount equal
to or less than 5% of the consolidated gross revenues of the Borrower and its Restricted Subsidiaries for such Test Period, in each case
determined in accordance with GAAP.
“Immediate
Family Members” shall mean with respect to any individual, such individual’s estate, heirs, legatees, distributees, child,
stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling,
niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law (including adoptive relationships),
any person sharing an individual’s household (other than an unrelated tenant or employee) and any trust, partnership or other bona
fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals 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 Agreement” shall have the
meaning provided in Section 2.14(e).
“Incremental
Base Amount” shall mean, as of any date of determination, (a) (x) the greater of $50,000,000 and (y) 100.0% of Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination
(measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date plus (b) the
aggregate principal amount of (i) Term Loans voluntarily prepaid prior to such date pursuant to Section 5.1, (ii) the aggregate amount
of cash consideration paid by any Purchasing Borrower Party to effect any assignment to it of Term Loans pursuant to Section 13.6(g),
but only to the extent that such Term Loans have been cancelled and (iii) all permanent reductions of Revolving Credit Commitments, Extended
Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments pursuant to Section 4.2 effected prior to such date
(for the avoidance of doubt, excluding any such commitment reductions required by the proviso to Section 2.14(b) or in connection with
the Incurrence of any Credit Agreement Refinancing Indebtedness Incurred to Refinance any Revolving Credit Commitments, Additional/Replacement
Revolving Credit Commitments and/or Extended Revolving Credit Commitments), in each case of this clause (b) except to the extent financed
by the Incurrence of long-term Indebtedness (including, for the avoidance of doubt, any such Indebtedness Incurred under a revolving credit
facility, Incurred as Permitted Additional Debt or otherwise Incurred under Section 2.14) by, or the issuance of Capital Stock by, or
the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside
the ordinary course of business.
“Incremental Commitments” shall have the
meaning provided in Section 2.14(a).
“Incremental Facilities” shall have the
meaning provided in Section 2.14(a).
“Incremental Facility Closing Date” shall
have the meaning provided in Section 2.14(e).
“Incremental Limit” shall have the meaning
provided in Section 2.14(b).
“Incremental Ratio Debt Amount” shall have
the meaning provided in Section 2.14(b) and Section 10.1(u).
“Incremental Revolving Credit Commitment Increase”
shall have the meaning provided in Section 2.14(a).
“Incremental Revolving
Credit Commitment Increase Lender” shall have the meaning provided in Section 2.14(f)(ii).
“Incremental Term Loan
Commitment” shall mean the Commitment of any Lender to make Incremental Term Loans of a particular Class pursuant to Section
2.14(a).
“Incremental Term Loan Facility”
shall mean each Class of Incremental Term Loans made pursuant to Section 2.14.
“Incremental Term Loan Maturity
Date” shall mean, with respect to any Class of Incremental Term Loans made pursuant to Section 2.14, the final maturity date
thereof.
“Incremental Term Loans” shall have the
meaning provided in Section 2.14(a).
“Incur”
shall mean create, issue, assume, guarantee, incur or otherwise become directly or indirectly liable for any Indebtedness; provided,
however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such Person at the time it becomes a Restricted Subsidiary.
The term “Incurrence” when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance
with Section 10.1:
(a)
amortization of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security;
(b)
the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly
scheduled dividends on Capital Stock in the form of additional Capital Stock of the same class and with the same terms; and
(c)
the obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of prepayment, redemption,
repurchase, defeasance, acquisition or similar payment or making of a mandatory offer to prepay, redeem, repurchase, defease, acquire
or similarly pay such Indebtedness;
will not be deemed to be the Incurrence
of Indebtedness.
“Indebtedness” shall
mean, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities
in accordance with GAAP:
(a)
all indebtedness of such Person for borrowed money and all indebtedness of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b)
the maximum amount (after giving pro forma effect to any prior drawings or reductions which have been reimbursed) of all letters
of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar
instruments issued or created by or for the account of such Person;
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(c)
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net Hedging Obligations of such Person;
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(d)
all obligations of such Person to pay the deferred purchase price of property or services (other than (i) current trade or other
ordinary course payables or liabilities or accrued expenses (but not any refinancings, extensions, renewals, or replacements thereof)
Incurred in the ordinary course of business and maturing within 365 days after the Incurrence thereof except if such trade or other ordinary
course payables or liabilities or accrued expenses bear interest, (ii) any earn-out or similar obligation, unless such obligation has
not been paid within 30 days after becoming due and payable and becomes a liability on the balance sheet of such Person in accordance
with GAAP and (iii) obligations resulting from take-or-pay contracts entered into in the ordinary course of business);
(e)
indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development
bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
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(f)
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all Financing Lease Obligations;
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(g)
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all obligations of such Person in respect of Disqualified Capital Stock; and
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(h)
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all Guarantee Obligations of such Person in respect of any of the foregoing;
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provided that Indebtedness
shall not include (i) prepaid or Deferred Revenue arising in the ordinary course of business, (ii) purchase price holdbacks arising in
the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations
of the seller of such asset,
(iii) amounts
owed to dissenting equityholders in connection with, or as a result of, their exercise of appraisal rights and the settlement of any
claims or actions (whether actual, contingent or potential) with respect thereto (including any accrued interest), with respect to
the Transactions or any other Acquisition permitted under the Credit Documents, (iv) liabilities associated with customer
prepayments and deposits and other accrued obligations (including transfer pricing), in each case incurred in the ordinary course of
business, (v) Non-Financing Lease Obligations or other obligations under or in respect of straight-line leases, operating leases or
Sale Leasebacks (except resulting in Financing Lease Obligations), (vi) customary obligations under employment agreements and
deferred compensation arrangements, (vii) contingent post-closing purchase price adjustments, non-compete or consulting obligations
or earn-outs to which the seller in an Acquisition or Investment may become entitled and
(viii)
Indebtedness of any Parent Entity appearing on the balance sheet of the Borrower or any Restricted Subsidiary solely by reason
of “pushdown” accounting under GAAP.
For all purposes
hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or Joint Venture (other than a Joint Venture
that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the
extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included
in the calculation of Consolidated Total Debt of such Person and (B) in the case of Holdings, the Borrower and their Subsidiaries, exclude
all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the
ordinary course of business or consistent with past practice. The amount of any net Hedging Obligations on any date shall be deemed to
be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) above shall,
unless such Indebtedness has been assumed by such Person, be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such
Indebtedness and (ii) the Fair Market Value of the property encumbered thereby as determined by such Person in good faith.
“Indemnified Parties” shall have the meaning
provided in Section 13.5(a)(iii).
“Independent
Financial Advisor” shall mean an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar
Businesses of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which
it has been engaged.
“Initial
Financial Statement Delivery Date” shall mean the date on which Section 9.1 Financials are delivered to the Administrative Agent
under Section 9.1 for the first full fiscal quarterly or annual period of the Borrower completed after the Closing Date.
“Initial
Revolving Borrowing Amount” shall mean one or more Borrowings of Revolving Credit Loans on the Closing Date in an amount not
to exceed the aggregate amounts specified or referred to in the definition of the term “Permitted Initial Revolving Credit Borrowing
Purposes”; provided that, without limitation, Letters of Credit may be issued on the Closing Date to, among other things,
backstop or replace letters of credit outstanding immediately prior to the Closing Date under the Existing Credit Facility.
“Initial Term Loan” shall have the meaning
provided in Section 2.1(a).
“Initial
Term Loan Commitment” shall mean (a) in the case of each Lender that is a Lender on the Closing Date, the amount set forth opposite
such Lender’s name on Schedule 1.1(a) as such Lender’s “Initial Term Loan Commitment” and (b) in the case of any
Lender that becomes a Lender after the Closing Date, the amount specified as such Lender’s “Initial Term Loan Commitment”
in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each case
as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Initial Term Loan Commitments as
of the Closing Date is $265,000,000.
“Initial Term Loan Facility” shall have
the meaning provided in the recitals to this Agreement.
“Initial Term Loan Lender”
shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial Term Loan Maturity
Date” shall mean the seventh anniversary of the Closing Date, or if such anniversary of the Closing Date is not a Business Day,
the Business Day immediately following such anniversary.
“Initial Term Loan Repayment Amount” shall
have the meaning provided in Section 2.5(b).
“Initial Term Loan Repayment Date” shall
have the meaning provided in Section 2.5(b).
“Intellectual Property” shall have the
meaning provided for such term in the Security Agreement.
“Intercompany
Note” shall mean the Intercompany Subordinated Note, dated as of the Closing Date, substantially in the form of Exhibit L hereto,
executed by Holdings, the Borrower and each other Restricted Subsidiary of the Borrower party thereto.
“Interest
Period” shall mean, with respect to any Eurodollar Loan, the interest period applicable thereto, as determined pursuant to Section
2.9.
“Interpolated
Rate” shall mean, in relation to LIBOR, the rate which results from interpolating on a linear basis between:
(a)
the applicable LIBOR (as used in the definition of the term “Eurodollar Rate”) for the longest period (for which LIBOR
is available) which is less than the Interest Period of that Loan; and
(b) the
applicable LIBOR (as used in the definition of the term “Eurodollar Rate”) for the shortest period (for which LIBOR is
available) which exceeds the Interest Period of that Loan, each as of approximately 11:00 a.m. (London, England time) two Business
Days prior to the commencement of such Interest Period of that Loan.
“Investment”
shall mean, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Capital Stock or Indebtedness or other securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee Obligation with respect to any obligation of, or purchase or other acquisition of any other Indebtedness
or equity participation or interest in, another Person, including any partnership or Joint Venture interest in such other Person,
excluding, in the case of the Borrower and its Restricted Subsidiaries, intercompany loans, advances or Indebtedness having a term
not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of the property and assets or business of another
Person or assets constituting a business unit, line of business or division of such Person. The amount, as of any date of
determination, of (i) any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such
date, minus any payments in cash or Cash Equivalents actually received by such investor representing interest in respect of
such Investment, but without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion
thereof) with respect to such loan or advance after the date thereof, (ii) any Investment in the form of a guarantee shall be equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof, as determined in good faith
by an Authorized Officer of the Borrower, (iii) any Investment in the form of a transfer of Capital Stock or other non-cash property
or services by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the Fair
Market Value of such Capital Stock or other property or services as of the time of the transfer, minus any payments actually
received by such investor representing a Return in respect of such Investment, but without any other adjustment for increases or
decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment,
and (iv) any Investment (other than any Investment referred to in clause (i), (ii) or (iii) above) by the specified Person in the
form of a purchase or other acquisition for value of any Capital Stock, evidences of Indebtedness or other securities of any other
Person shall be the original cost of such Investment, except that the amount of any Investment in the form of an Acquisition shall
be the Acquisition Consideration, minus (i) the amount of any portion of such Investment that has been repaid to the investor as a
Return in respect of such Investment (without duplication of amounts increasing the Available Amount or the Available Equity
Amount), but without any other adjustment for increases or decreases in value of, or write- ups, write-downs or write-offs with
respect to, such Investment after the date of such Investment. For purposes of Section 10.5, if an Investment involves the
acquisition of more than one Person, the amount of such Investment shall be allocated among the acquired Persons in accordance with
GAAP; provided that pending the final determination of the amounts to be so allocated in accordance with GAAP, such
allocation shall be as reasonably determined by an Authorized Officer of the Borrower. For the avoidance of doubt, if the Borrower
or any Restricted Subsidiary issues, sells or otherwise Disposes of any Capital Stock of a Person that is a Restricted Subsidiary
such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Borrower or any
Restricted Subsidiary in such Person remaining after giving effect thereto shall not be deemed to be a new Investment at such
time.
“Investment
Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent)
by S&P or an equivalent rating by any other Rating Agency.
“Investment
Grade Securities” shall mean, (a) securities issued or directly and fully guaranteed or insured by the U.S. government or any
agency or instrumentality thereof (other than Cash Equivalents), (b) securities or debt instruments with an Investment Grade Rating, but
excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries, (c) investments in
any fund that invests at least a 95% of its assets in investments of the type described in clauses (a) and (b) above, which fund may also
hold immaterial amounts of cash pending investment or distribution and (d) corresponding instruments in countries other than the United
States customarily utilized for high-quality investments.
“Investors” shall mean, collectively, the
Sponsor, the Rollover Investors and the other Employee Investors.
“ISP”
shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer
Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement
and instrument entered into by a Letter of Credit Issuer and the Borrower (or any Restricted Subsidiary) or in favor of the Letter of
Credit Issuer and relating to such Letter of Credit.
“Joint
Bookrunners” shall mean UBS Securities LLC and SunTrust Robinson Humphrey, Inc., each in its capacity as joint bookrunner.
“Joint
Venture” shall mean a joint venture, partnership or similar arrangement, whether in corporate, partnership or other legal form.
“Junior Debt” shall mean any Subordinated
Indebtedness of any Credit Party.
“Junior
Priority Intercreditor Agreement” shall mean the Junior Priority Intercreditor Agreement substantially in the form of Exhibit
G-2, among (x) the Collateral Agent and (y) one or more representatives of the holders of Permitted Additional Debt and/or Permitted Junior
Priority Refinancing Debt, with any immaterial changes and material changes thereto in light of the prevailing market conditions, which
material changes shall be posted to the Lenders not less than five Business Days before execution thereof and, if the Required Lenders
shall not have objected to such changes within five Business Days after posting, then the Required Lenders shall be deemed to have agreed
that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement (with such changes) is reasonable
and to have consented to such intercreditor agreement (with such changes) and to the Administrative Agent’s and/or Collateral Agent’s
execution thereof.
“Latest
Maturity Date” shall mean, with respect to the Incurrence of any Indebtedness or the issuance of any Capital Stock, the latest
Maturity Date applicable to any Credit Facility that is outstanding hereunder as determined on the date such Indebtedness is Incurred
or such Capital Stock is issued.
“LCA Election” shall have the meaning provided
in Section 1.11.
“LCA Test Date” shall have the meaning
provided in Section 1.11.
“Lead Arrangers”
shall mean UBS Securities LLC and SunTrust Robinson Humphrey, Inc., each in its capacity as lead arranger.
“Lender”
shall mean (a) the Persons listed on Schedule 1.1(a), (b) any other Person that shall become a party hereto as a
“lender” pursuant to Section 13.6 and (c) each Person that becomes a party hereto as a “lender” pursuant to
the terms of Section 2.14, in each case other than a Person who ceases to hold any outstanding Loans, Letter of Credit Exposure,
Swingline Exposure or any Commitment.
“Lender
Default” shall mean (a) the refusal (in writing) or failure of any Revolving Credit Lender (which term, for purposes of this
definition, shall also include any Lender under an Additional/Replacement Revolving Credit Facility) to make available its portion of
any Incurrence of Revolving Credit Loans or participations in Letters of Credit or Swingline Loans, which refusal or failure is not cured
within one Business Day after the date of such refusal or failure, (b) the failure of any Revolving Credit Lender to pay over to the Administrative
Agent, any Letter of Credit Issuer, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, (c) the notification by a Revolving Credit Lender to the Borrower, the Collateral Agent or the
Administrative Agent that it does not intend or expect to comply with any of its funding obligations or has made a public statement to
that effect with respect to its funding obligations under this Agreement, (d) the failure by a Revolving Credit Lender to confirm in a
manner reasonably satisfactory to the Administrative Agent that it will comply with its obligations under this Agreement, (e) the admission
of a Distressed Person in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related Distress Event or
(f) any Lender has become the subject of a Bail-In Action.
“Lender-Related
Distress Event” shall mean, with respect to any Revolving Credit Lender (which term, for purposes of this definition, shall
also include any Lender under an Additional/Replacement Revolving Credit Facility), that such Revolving Credit Lender or any person that
directly or indirectly controls such Revolving Credit Lender (each, a “Distressed Person”), as the case may be, is
or becomes subject to a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian,
conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s
assets, or such Distressed Person or any person that directly or indirectly controls such Distressed Person is subject to a forced liquidation
or winding up, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined
by any governmental authority having regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt or no
longer viable, or if any governmental authority having regulatory authority over such Distressed Person has taken control of such Distressed
Person or has taken steps to do so; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by
virtue of the ownership or acquisition of any equity interests in any Revolving Credit Lender or any person that directly or indirectly
controls such Revolving Credit Lender by a governmental authority or an instrumentality thereof; provided, further, that
such ownership interest does not result in or provide such person with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such person (or such governmental authority or instrumentality)
to reject, repudiate, disavow or disaffirm any contract or agreements made by such person or its parent entity.
“Letter of Credit” shall have the meaning
provided in Section 3.1(a).
“Letter
of Credit Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit that has not been
reimbursed on the date when made or refinanced as a Borrowing.
“Letter
of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the amount of any Unpaid Drawings in
respect of which such Lender has made (or is required to have made) Revolving Credit Loans pursuant to Section 3.4 at such time and (b)
such Lender’s Revolving Credit Commitment Percentage of the Letter of Credit Obligations at such time (excluding the portion thereof
consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) Revolving Credit Loans pursuant
to Section 3.4).
“Letter of Credit Fee” shall have the meaning
provided in Section 4.1(c).
“Letter
of Credit Issuer” shall mean (a) UBS AG, Stamford Branch, (b) SunTrust Bank and (c) any one or more Persons who shall
become a Letter of Credit Issuer pursuant to Section 3.6. Any Letter of Credit Issuer may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of
Credit Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that
there is more than one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of
Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter
of Credit Issuers, as the context requires.
“Letter
of Credit Maturity Date” shall mean the date that is three Business Days prior to the Revolving Credit Maturity Date.
“Letter
of Credit Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unpaid Drawings, including all Letter of Credit Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its terms, but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.
“Letter of Credit Participant” shall have
the meaning provided in Section 3.3(a).
“Letter of Credit Participation” shall
have the meaning provided in Section 3.3(a).
“Letter
of Credit Request” shall mean an application and agreement for the issuance or amendment of a Letter of Credit in the form from
time to time in use by a Letter of Credit Issuer.
“Letter
of Credit Sub-Commitment” shall mean $15,000,000, as the same may be reduced from time to time pursuant to Section 4.2(b).
“Letter
of Credit Sub-Commitment Obligation” shall mean, in the case of each Letter of Credit Issuer that is a Letter of Credit Issuer
on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(a) as such Letter of Credit Issuer’s
“Letter of Credit Sub-Commitment Obligation”.
“Lien”
shall mean any mortgage, pledge, deed of trust, security interest, hypothecation, lien (statutory or other) or similar encumbrance and
any easement, right-of-way, restriction (including zoning restrictions), defect, exception or irregularity in title or similar charge
or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof); provided that in no event shall a Non-Financing Lease Obligation be deemed to be a Lien.
“Limited
Condition Acquisition” shall mean any Acquisition by the Borrower and/or one or more of its Restricted Subsidiaries permitted
by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan”
shall mean any Revolving Credit Loan, Additional/Replacement Revolving Credit Loan, Extended Revolving Credit Loan, Swingline Loan (including
any swingline loan pursuant to any Extended Revolving Credit Commitments or any Additional/Replacement Revolving Credit Commitments) or
Term Loan made by any Lender hereunder.
“Losses” shall have the meaning provided
in Section 13.5(a)(iii).
“Mandatory Borrowing” shall have the meaning
provided in Section 2.1(d)(ii).
“Market
Capitalization” shall mean an amount equal to (a) the total number of issued and outstanding shares of common Capital Stock
of the Borrower, Holdings or any Parent Entity on the date of the declaration of a Restricted Payment permitted pursuant to Section 10.6(m)
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 the date of declaration of such
Restricted Payment.
“Master Agreement” shall have the meaning
provided in the definition of the term “Hedging Agreement.”
“Material
Adverse Effect” shall mean, except as provided in the proviso to Section 6.12, a circumstance or condition that would, individually
or in the aggregate, materially and adversely affect (a) the business, financial condition or results of operations of the Borrower and
its Restricted Subsidiaries, taken as a whole, (b) the ability of the Credit Parties (taken as a whole) to perform their payment obligations
under the Credit Documents or (c) the rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders under the
Credit Documents.
“Material
Real Property” shall mean any parcel or parcels of Real Property owned in fee by any Credit Party, now or hereafter, having
a Fair Market Value (on a per property basis) of at least $5,000,000. For the purpose of determining the relevant value under this Agreement
with respect to the preceding clause, such value shall be determined as of (x) the Closing Date for Real Property now owned, (y) the date
of acquisition for Real Property acquired after the Closing Date or (z) the date on which the entity owning such Real Property becomes
a Credit Party after the Closing Date, in each case as determined in good faith by the Borrower.
“Maturity
Date” shall mean, as to the applicable Loan or Commitment, the Initial Term Loan Maturity Date, any Incremental Term Loan Maturity
Date, the Revolving Credit Maturity Date, any maturity date related to any Class of Additional/Replacement Revolving Credit Commitments
or any maturity date related to any Class of Extended Term Loans or any Class of Extended Revolving Credit Commitments, as applicable.
“Maximum Tender Condition” shall have the
meaning provided in Section 2.17(d).
“Merger Consideration” shall have the meaning
provided in the recitals to this Agreement.
“Merger Sub” shall have the meaning provided
in the recitals to this Agreement.
“Merger Sub II” shall have the meaning
provided in the recitals to this Agreement.
“Mergers” shall have the meaning provided
in the recitals to this Agreement.
“MFN Exceptions” shall have the meaning
provided in Section 2.14(c).
“MFN Protection” shall have the meaning
provided in Section 2.14(c).
“Minimum
Borrowing Amount” shall mean (a) with respect to a Borrowing of Term Loans, $5,000,000 (or such lesser amount as may be agreed
by the Administrative Agent or as may be required in order to accommodate Borrowings described under Section 2.14(b)) and (b) with respect
to a Borrowing of Revolving Credit Loans, $1,000,000 and (c) with respect to a Borrowing of Swingline Loans, $100,000.
“Minimum Tender Condition” shall have the
meaning provided in Section 2.17(d).
“Minority
Investment” shall mean any Person (other than a Subsidiary) in which the Borrower or any Restricted Subsidiary owns Capital
Stock.
“Moody’s”
shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage”
shall mean a mortgage or a deed of trust, deed to secure debt, trust deed or other security document entered into by the owner of a Mortgaged
Property in favor of the Collateral Agent for the benefit of the Secured Parties creating a Lien on such Mortgaged Property, substantially
in such form as may be reasonably agreed between the Borrower and the Collateral Agent.
“Mortgaged
Property” shall mean (a) the Real Property identified on Schedule 1.1(c) and (b) all Real Property owned in fee with respect
to which a Mortgage is required to be granted pursuant to Section 9.14(b).
“Multiemployer
Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which Holdings, the Borrower, a Restricted
Subsidiary or an ERISA Affiliate contributes, has an obligation to contribute or had an obligation to contribute over the five preceding
calendar years.
“Necessary Cure Amount” shall have the
meaning provided in Section 11.11(b).
“Net
Cash Proceeds” shall mean, with respect to any Prepayment Event, Incurrence of Indebtedness, any issuance of Capital Stock or
any capital contribution or any Disposition of any Investment (including any Designated Non-Cash Consideration), (a) the gross cash proceeds
(including payments from time to time in respect of installment or earn-out obligations, if applicable, but only as and when received
and, with respect to any Recovery Event, any insurance proceeds, eminent domain awards or condemnation awards in respect of such Recovery
Event) received by or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment Event, Incurrence
of Indebtedness, issuance of Capital Stock, receipt of a capital contribution or Disposition of any Investment, less (b) the sum of:
(i)
in the case of any Prepayment Event or such Disposition, the amount, if any, of all Taxes paid or estimated to be payable by any
Parent Entity, the Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event or such Disposition (including
withholding taxes imposed on the repatriation or expatriation of any such Net Cash Proceeds),
(ii)
in the case of any Prepayment Event or such Disposition, the amount of any reasonable reserve established in accordance with GAAP
against any liabilities (other than any amounts deducted pursuant to clause (i) above) (x) associated with the assets that are the subject
of such Prepayment Event or such Disposition and (y) retained by the Borrower or any of the Restricted Subsidiaries, including any pension
and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations
associated with such transaction; provided that the amount of any subsequent reduction of such reserve (other than in connection with
a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such Prepayment Event or such Disposition occurring
on the date of such reduction,
(iii)
in the case of any Prepayment Event or such Disposition, the amount of any principal amount, premium or penalty, if any, interest
or other amounts on any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event or such Disposition
to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation
of such Prepayment Event or such Disposition and such Indebtedness is actually so repaid (other than Indebtedness outstanding under the
Credit Documents or otherwise subject to a Customary Intercreditor Agreement and any costs associated with the unwinding of any Hedging
Obligations in connection with such transaction),
(iv)
in the case of any Asset Sale Prepayment Event, the amount of any proceeds of such Asset Sale Prepayment Event that the Borrower
or the applicable Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment
to reinvest, within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section
9.13); provided that:
(A)
the Borrower or the applicable Restricted Subsidiary shall comply with Sections 9.10, 9.11 and 9.14(b) with respect to such reinvestment
if applicable;
(B) any
portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment within the
Reinvestment Period shall (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event occurring on the later of (1) the
last day of the Reinvestment Period and (2) 180 days after the date that the Borrower or such Restricted Subsidiary shall have
entered into an Acceptable Reinvestment Commitment and (y) be applied to the prepayment of Term Loans in accordance with Section
5.2(a)(i) or to the prepayment, repurchase, defeasance, acquisition, redemption or similar payment of any secured Permitted
Additional Debt or secured Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions of the governing
documentation thereof, in any such case to the extent permitted under Section 5.2(a)(i); and
(C) any
proceeds subject to an Acceptable Reinvestment Commitment that is (I) later canceled or terminated for any reason before such proceeds
are applied in accordance therewith or (II) not consummated (i.e., the reinvestment contemplated by such Acceptable Reinvestment Commitment
is not made) shall be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase,
defeasance, acquisition, redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement Refinancing
Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in any such case to the extent permitted
under Section 5.2(a)(i), unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment
with respect to such proceeds prior to the end of the Reinvestment Period,
(v)
in the case of any Recovery Prepayment Event, the amount of any proceeds of such Recovery Prepayment Event (x) that the Borrower
or the applicable Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment
to reinvest, within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section
9.13), including for the repair, restoration or replacement of the asset or assets subject to such Recovery Prepayment Event, or (y) for
which the Borrower or the applicable Restricted Subsidiary has provided a Restoration Certification prior to the end of the Reinvestment
Period; provided that:
(A) the
Borrower or the applicable Restricted Subsidiary shall comply with Sections 9.10, 9.11 and 9.14(b) with respect to such reinvestment
if applicable;
(B) any
portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment or Restoration Certification
within the Reinvestment Period shall (x) be deemed to be Net Cash Proceeds of a Recovery Prepayment Event occurring on the later of (1)
the last day of the Reinvestment Period and (2) 180 days after the date that the Borrower or such Restricted Subsidiary shall have entered
into an Acceptable Reinvestment Commitment or shall have provided a Restoration Certification and (y) be applied to the prepayment of
Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase, defeasance, acquisition, redemption or similar payment
of any secured Permitted Additional Debt or secured Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions
of the governing documentation thereof, in any such case to the extent permitted under Section 5.2(a)(i); and
(C) any
proceeds subject to an Acceptable Reinvestment Commitment or a Restoration Certification that is (I) later canceled or terminated for
any reason before such proceeds are applied in accordance therewith or (II) not consummated (i.e., the reinvestment, repair, restoration
or replacement contemplated by such Acceptable Reinvestment Commitment or Restoration Certification, as the case may be, is not made)
shall be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase, defeasance, acquisition,
redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement Refinancing Indebtedness pursuant
to the corresponding provisions of the governing documentation thereof, in each case to the extent permitted under Section 5.2(a)(i),
unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment or provides another
Restoration Certification with respect to such proceeds prior to the end of the Reinvestment Period,
(vi) in
the case of any Asset Sale Prepayment Event or Recovery Prepayment Event by any non-wholly owned Restricted Subsidiary, the pro rata
portion of the net cash proceeds thereof (calculated without regard to this clause (vi)) attributable to minority interests and not
available for distribution to or for the account of the Borrower or a wholly owned Restricted Subsidiary as a result thereof,
(vii) in
the case of any Prepayment Event, Incurrence of Indebtedness, Disposition, issuance of Capital Stock or receipt of a capital contribution,
the reasonable and customary fees, commissions, expenses (including attorney’s fees, investment banking fees, survey costs, title
insurance premiums and search and recording charges, transfer taxes, deed or mortgage recording taxes and other customary expenses and
brokerage, consultant and other customary fees or commissions), issuance costs, discounts and other costs and expenses (and, in the case
of the Incurrence of any Indebtedness the proceeds of which are required to be used to prepay any Class of Loans and/or reduce any Class
of Commitments under this Agreement, accrued interest and premium, if any, on such Loans and any other amounts (other than principal)
required to be paid in respect of such Loans and/or Commitments in connection with any such prepayment and/or reduction), and payments
made in order to obtain a necessary consent required by Applicable Law, in each case only to the extent not already deducted in arriving
at the amount referred to in clause (a) above, and
(viii) in
the case of any Asset Sale Prepayment Event or Disposition, any amounts funded into escrow established pursuant to the documents evidencing
any such Asset Sale Prepayment Event or Disposition to secure any indemnification obligations or adjustments to the purchase price associated
with any such Asset Sale Prepayment Event or Disposition until such amounts are released to the Borrower or a Restricted Subsidiary.
“Net
Income” shall mean, with respect to any Person, the net income (loss) attributable to such Person, determined on a consolidated
basis in accordance with GAAP and before any reduction in respect of dividends on preferred Capital Stock (other than dividends on Disqualified
Capital Stock).
“New Holdings” shall have the meaning provided
in the definition of the term “Holdings”.
“Non-Consenting Lender” shall have the
meaning provided in Section 13.7(b).
“Non-Credit Party” shall mean any Person
that is not a Credit Party.
“Non-Credit Party Asset Sale” shall have
the meaning provided in Section 5.2(h).
“Non-Credit Party Recovery Event” shall
have the meaning provided in Section 5.2(h).
“Non-Debt Fund Affiliate”
shall mean any Affiliate of the Borrower (other than Holdings, the Borrower or any Restricted Subsidiary of the Borrower) that is not
a Debt Fund Affiliate.
“Non-Defaulting Lender” shall mean and
include each Lender other than a Defaulting Lender.
“Non-Excluded Taxes” shall have the meaning
provided in Section 5.4(a).
“Non-Extension Notice Date” shall have
the meaning provided in Section 3.2(e).
“Non-Financing
Lease Obligations” shall mean a lease obligation that is not required to be accounted for as a financing or capital lease on
both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For avoidance of doubt, a straight-line
or operating lease shall be considered a Non- Financing Lease Obligation.
“Non-U.S. Lender” shall have the meaning
provided in Section 5.4(d).
“Note”
shall mean a Term Note or a Revolving Credit Note, in each case of the Borrower payable to any Lender or its registered assigns, evidencing
the aggregate amount of Indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender.
“Notice
of Borrowing” shall mean a request of the Borrower in accordance with the terms of Section 2.3 and substantially in the
form of Exhibit D or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or
electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by an
Authorized Officer of the Borrower.
“Notice of Conversion or Continuation”
shall have the meaning provided in Section 2.6(a).
“Obligations” shall mean the collective
reference to:
(a) the
due and punctual payment of (i) the principal of and premium, if any, and interest at the applicable rate provided in this Agreement
(including interest accruing during the pendency of any proceeding under any applicable Debtor Relief Laws (or that would accrue but
for the operation of applicable Debtor Relief Laws), regardless of whether allowed or allowable in such proceeding) on the Loans, when
and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required
to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon (including interest accruing during the pendency of any proceeding under any applicable
Debtor Relief Laws (or that would accrue but for the operation of applicable Debtor Relief Laws), regardless of whether allowed or allowable
in such proceeding) and obligations to provide Cash Collateral, and (iii) all other monetary obligations, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the
pendency of any applicable proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding), of
the Borrower or any other Credit Party to any of the Secured Parties under this Agreement and the other Credit Documents,
(b) the
due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower under or pursuant to this Agreement
and the other Credit Documents,
(c) the
due and punctual payment and performance of all the covenants, agreements, obligations, and liabilities of each other Credit Party under
or pursuant to this Agreement or the other Credit Documents,
(d) the
due and punctual payment and performance of all Cash Management Obligations under each Secured Cash Management Agreement of a Credit
Party or any Restricted Subsidiary thereof, and
(e) the
due and punctual payment and performance of all Hedging Obligations under each Secured Hedging Agreement of a Credit Party or any Restricted
Subsidiary thereof (other than with respect to any such Credit Party’s Hedging Obligations that constitute Excluded Swap Obligations
with respect to such Credit Party).
Notwithstanding
the foregoing, (i) unless otherwise agreed to by the Borrower, the obligations of a Credit Party or any Restricted Subsidiary thereof
under any Secured Cash Management Agreement and Secured Hedging Agreement shall be secured and guaranteed pursuant to the Security Documents
and only to the extent that, and for so long as, the other Obligations are so secured and guaranteed, (ii) any release of Collateral or
Guarantors effected in the manner permitted by this Agreement and the other Credit Documents shall not require the consent of the holders
of the Cash Management Obligations under Secured Cash Management Agreements or the consent of the holders of the Hedging Obligations under
Secured Hedging Agreements and (iii) Obligations shall in no event include any Excluded Swap Obligations.
“OFAC” shall have the meaning provided
in Section 8.20(a).
“OID” shall mean original issue discount.
“Organizational
Documents” shall mean (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited
liability company, the certificate or articles of formation or organization and operating agreement and (c) with respect to any
partnership, Joint Venture, trust or other form of business entity, the partnership, Joint Venture or other applicable agreement of
formation or organization and, if applicable, any agreement, instrument, filing or notice with respect thereto filed in connection
with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization
and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Taxes” shall have the meaning provided
in Section 5.4(b).
“Overnight
Rate” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate determined by the
Administrative Agent, the applicable Letter of Credit Issuer or the Swingline Lender, as the case may be, in accordance with banking industry
rules on interbank compensation.
“Parent
Entity” shall mean any Person that is a direct or indirect parent company (which may be organized as, among other things, a
partnership) of Holdings and/or the Borrower, as applicable. For the avoidance of doubt, any Person that is formed to effect a public
offering of common Capital Stock that directly or indirectly owns a majority of the Voting Stock of Holdings will be deemed a Parent Entity
of Holdings.
“Participant” shall have the meaning provided
in Section 13.6(d)(i).
“Participant Register” shall have the meaning
provided in Section 13.6(d)(ii).
“PATRIOT ACT” shall have the meaning provided
in Section 8.20(a).
“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Pension
Plan” shall mean any “employee pension benefit plan” (as defined in Section 3(2) of ERISA, other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA that is sponsored, maintained
or contributed to by Holdings, the Borrower, a Restricted Subsidiary or an ERISA Affiliate or, solely with respect to representations
and covenants that relate to liability under Section 4069 of ERISA, that was so maintained and in respect of which the Borrower, any Restricted
Subsidiary or ERISA Affiliate would have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
“Perfection
Certificate” shall mean a certificate in the form of Exhibit M or any other form approved by the Collateral Agent in its reasonable
discretion.
“Permitted
Acquisition” shall mean any Acquisition by the Borrower or any of the Restricted Subsidiaries, so long as (a) such Acquisition
and all transactions related thereto shall be consummated in all material respects in accordance with all Applicable Laws, (b) if such
Acquisition involves the acquisition of Capital Stock of a Person that upon such Acquisition would become a Subsidiary, such Acquisition
shall result in the issuer of such Capital Stock becoming a Restricted Subsidiary and, to the extent required by Section 9.10, a Guarantor,
(c) to the extent required by Sections 9.10, 9.11 and/or 9.14(b), such Acquisition shall result in the Collateral Agent, for the benefit
of the Secured Parties, being granted a security interest in any Capital Stock or any assets so acquired, (d) subject to Section 1.11,
both immediately prior to and after giving pro forma effect to such Acquisition, no Event of Default under either Section 11.1 or Section
11.5 shall have occurred and be continuing and (e) immediately after giving pro forma effect to such Acquisition, the Borrower and its
Restricted Subsidiaries shall be in compliance with Section 9.13.
“Permitted
Additional Debt” shall mean (a) secured or unsecured bonds, notes or debentures (which bonds, notes or debentures, if
secured, may only be secured by Liens on the Collateral having a priority ranking equal to the priority of the Liens on the
Collateral securing the Obligations (but without regard to control of remedies) or by Liens on the Collateral having a priority
ranking junior to the Liens on the Collateral securing the Obligations) or (b) secured or unsecured loans (or commitments to provide
loans or other extensions of credit) (which loans or commitments, if secured, may only be secured by Liens on the Collateral having
a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but without regard to control of
remedies) or by Liens on the Collateral having a priority ranking junior to the Liens on the Collateral securing the Obligations),
in each case Incurred by or provided to the Borrower or another Guarantor; provided that (a) the terms of such Indebtedness
or commitments do not provide for maturity or any scheduled amortization or mandatory repayment, mandatory redemption, mandatory
commitment reduction, mandatory offer to purchase or sinking fund obligation prior to the Latest Maturity Date, other than, subject
(except, in the case of any such Indebtedness or commitments that constitute, or are intended to constitute, other First Lien
Obligations) to the prior repayment or prepayment of, or the prior offer to repay or prepay (and to the extent such offer is
accepted, the prior repayment or prepayment of) the Obligations hereunder (other than Hedging Obligations under any Secured Hedging
Agreement, Cash Management Obligations under Secured Cash Management Agreements or contingent indemnification obligations and other
contingent obligations not then due and payable), customary prepayments, commitment reductions, repurchases, redemptions,
defeasances, acquisitions or satisfactions and discharges, or offers to prepay, reduce, redeem, repurchase, defease, acquire or
satisfy and discharge, in each case upon, a change of control, asset sale event or casualty, eminent domain or condemnation event,
or on account of the accumulation of excess cash flow (in the case of loans or commitments), AHYDO Catch-Up Payments and customary
acceleration rights upon an event of default; provided that the foregoing requirements of this clause (a) shall not apply to
the extent such Indebtedness or commitments constitute a customary bridge facility, so long as the long-term Indebtedness into which
any such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (a) and such conversion
or exchange is subject only to conditions customary for similar conversions or exchanges, (b) except for any of the following that
are applicable only to periods following the Latest Maturity Date, the covenants, events of default, Subsidiary guarantees and other
terms for such Indebtedness or commitments (excluding, for the avoidance of doubt, interest rates (including through fixed interest
rates), interest rate margins, rate floors, fees, maturity, funding discounts, original issue discounts, currency denomination and
redemption or prepayment terms and premiums), when taken as a whole, are determined by the Borrower to either (A) be consistent with
market terms and conditions and conditions at the time of Incurrence or effectiveness or (B) not be materially more restrictive on
the Borrower and its Restricted Subsidiaries than the terms of this Agreement, when taken as a whole (provided that, if the
documentation governing such Indebtedness or commitments contains any Previously Absent Financial Maintenance Covenant, the
Administrative Agent shall have been given prompt written notice thereof and this Agreement shall have been amended to include such
Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility (provided, however, that, if
(x) the documentation governing the Permitted Additional Debt that includes a Previously Absent Financial Maintenance Covenant
consists of a revolving credit facility (whether or not the documentation therefor includes any other facilities) and (y) such
Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such
revolving credit facility or a covenant only applicable to, or for the benefit of, a revolving credit facility, then this Agreement
shall be amended to include such Previously Absent Financial Maintenance Covenant only for the benefit of each revolving credit
facility hereunder (and not for the benefit of any term loan facility hereunder) and such Indebtedness or commitments shall not be
deemed “more restrictive” solely as a result of such Previously Absent Financial Maintenance Covenant benefiting only
such revolving credit facilities); provided that a certificate of an Authorized Officer of the Borrower delivered to the
Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness or the providing of such commitments,
together with a reasonably detailed description of the material terms and conditions of such Indebtedness or commitments or drafts
of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy
the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the
Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including
a reasonable description of the basis upon which it disagrees), (c) if such Indebtedness is senior subordinated or subordinated
Indebtedness, the terms of such Indebtedness provide for customary “high yield” subordination of such Indebtedness to
the Obligations, (d) any Permitted Additional Debt may not be guaranteed by any subsidiaries of the Borrower that do not guarantee
the Obligations, (e) any secured Permitted Additional Debt Incurred may not be secured by any assets that do not secure the
Obligations and shall be subject to an applicable Customary Intercreditor Agreement and (f) any Permitted Additional Debt in the
form of loans secured by Liens on the Collateral having a priority ranking equal to the priority of the Liens on the Collateral
securing the Obligations (but without regard to control of remedies) shall be subject to the MFN Protection set forth in Section
2.14(c) (but subject to the MFN Exceptions to such MFN Protection) as if such Permitted Additional Debt were an Incremental Term
Loan.
“Permitted
Additional Debt Documents” shall mean any document or instrument (including any guarantee, security or collateral agreement
or mortgage and which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Additional
Debt by any Credit Party.
“Permitted
Additional Debt Obligations” shall mean, if any secured Permitted Additional Debt has been Incurred by or provided to a Credit
Party and is outstanding, the collective reference to (a) the due and punctual payment of (i) the principal of and premium, if any, and
interest at the applicable rate provided in the applicable Permitted Additional Debt Documents (including interest accruing during the
pendency of any proceeding under any applicable Debtor Relief Laws (or would accrue but for the operation of applicable Debtor Relief
Laws), regardless of whether allowed or allowable in such proceeding) on any such Permitted Additional Debt, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment, repurchase, redemption, defeasance, acquisition or otherwise
and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency of any proceeding under any applicable Debtor Relief Laws,
regardless of whether allowed or allowable in such proceeding), of the Borrower or any other Credit Party to any of the Permitted Additional
Debt Secured Parties under the applicable Permitted Additional Debt Documents and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Borrower or any Credit Party under or pursuant to applicable Permitted Additional Debt
Documents.
“Permitted
Additional Debt Secured Parties” shall mean the holders from time to time of the secured Permitted Additional Debt Obligations
(and any representative on their behalf).
“Permitted Debt Exchange” shall have the
meaning provided in Section 2.17(a).
“Permitted Debt Exchange Offer” shall have
the meaning provided in Section 2.17(a).
“Permitted Encumbrances” shall mean:
(a)
Liens for Taxes, assessments or other governmental charges or claims that are not yet overdue by more than sixty days or more,
or if more than sixty days overdue either (i) that are being diligently contested in good faith and by appropriate proceedings for which
appropriate reserves have been established in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction
or (ii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(b)
Liens in respect of property or assets of the Borrower or any of its Restricted Subsidiaries imposed by Applicable Law, such as
landlord’s, carriers’, warehousemen’s, repairmen’s, construction contractors’ and mechanics’ Liens,
supplier of materials, architects’ and other similar Liens, in each case so long as such Liens arise in the ordinary course of business
or consistent with past practice and secure amounts not overdue for a period of more than sixty days or, if more than sixty days overdue
either (i) no action has been taken to enforce such Lien, (ii) such amount is being diligently contested in good faith by appropriate
proceedings for which appropriate reserves have been established in accordance with GAAP or the equivalent accounting principles in the
relevant local jurisdiction or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material
Adverse Effect;
(c)
Liens arising from judgments, awards, attachments or decrees for the payment of money in circumstances not constituting an Event
of Default under Section 11.9;
(d) Liens
incurred or pledges or deposits (i) made in connection with the Federal Employers Liability Act or any other workers’
compensation, unemployment insurance, employers’ health tax and other types of social security or similar legislation, (ii)
securing insurance premiums, other liabilities (including in respect of reimbursement and indemnified obligations) to insurance
carriers under insurance or self-insurance arrangements (including in respect of deductibles, co-payment, co-insurance, self-
insurance retention amounts and premiums and adjustments thereof), (iii) securing the performance of tenders, public or statutory
obligations, surety, stay, indemnity, warranty release, customs and appeal bonds, bids, licenses, leases (other than Financing Lease
Obligations), contracts (including government contracts and trade contracts (other than for Indebtedness)), performance, performance
and completion, completion and return-of-money bonds or guarantees, government contracts, financial assurances and completion
obligations and other similar obligations, (iv) securing contested Taxes or import duties or the payment of rent, (v) securing
letters of credit, bank guarantees or similar items issued or posted to support the payment of or for the benefit of items in the
foregoing clauses (i), (ii), (iii) and (iv) above, in each case incurred in the ordinary course of business or consistent with past
practice;
(e)
ground leases or subleases, licenses or sublicenses in respect of Real Property on which locations and/or facilities owned or leased
by the Borrower or any of its Restricted Subsidiaries are located;
(f)
(i) easements or reservations of, or rights of others for, rights-of-way, licenses, special assessments, survey exceptions, restrictions
(including zoning restrictions), minor title defects, servitudes, drains, sewers, exceptions or irregularities in title, encroachments,
protrusions and other similar charges, electric lines, telegraph and telephone lines and other similar purposes, or encumbrances or restrictions
on the use of Real Property, which in each case do not and could not reasonably be expected to have a Material Adverse Effect, and that
were not incurred in connection with and do not secure any Indebtedness, and (ii) to the extent reasonably agreed by the Collateral Agent,
any exception on the title policies issued in connection with any Mortgaged Property;
(g)
any (i) Lien or interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s,
licensor’s or sublicensor’s interest under any lease, sublease, license or sublicense permitted by this Agreement (other than
in respect of a Financing Lease Obligation), (ii) landlord Liens permitted by the terms of any lease, (iii) restriction or encumbrance
that the interest or title of any such lessor, sublessor, licensor or a sublicensor may be subject (including ground lease) or (iv) subordination
of the interest of the lessee, sublessee, licensee or sublicensee under such lease or license to any restriction or encumbrance referred
to in the preceding clause (iii);
(h)
Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in
connection with the importation of goods or to secure the performance of leases of Real Property;
(i)
Liens on goods or inventory or proceeds thereof the purchase, shipment or storage price of which is financed by a documentary letter
of credit or bankers’ acceptance issued or created for the account of the Borrower or any of its Restricted Subsidiaries; provided
that such Lien secures only the obligations of the Borrower or such Restricted Subsidiaries in respect of such letter of credit or bankers’
acceptance to the extent permitted under Section 10.1;
(j)
licenses, sublicenses and cross-licenses of Intellectual Property granted in the ordinary course of business;
(k)
Liens arising from precautionary UCC (or equivalent statute) financing statement, other applicable personal property or movable
property security registry financing statements or similar filings made in respect of Non-Financing Lease Obligations, consignment arrangements
or bailee arrangements entered into by the Borrower or any of its Restricted Subsidiaries;
(l)
any zoning, building or similar law or right reserved to, or vested in, any Governmental Authority to control or regulate the use
of any Real Property or any structure thereon that does not and could not reasonably be expected to have a Material Adverse Effect;
(m) (i)
leases, licenses, subleases or sublicenses (including of Intellectual Property) granted to others in the ordinary course of business
that do not and could not reasonably be expected to have a Material Adverse Effect or (ii) 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 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;
(n) Liens
given to a public utility or any municipality or Governmental Authority when required by such utility or other authority in connection
with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary; provided that such Liens do not and could
not reasonably be expected to have a Material Adverse Effect;
(o) servicing
agreements, development agreements, site plan agreements, subdivision agreements and other agreements with Governmental Authorities pertaining
to the use or development of any of the Real Property of the Borrower or any Restricted Subsidiary, including, without limitation, any
obligations to deliver letters of credit and other security as required, so long as the same do not and could not reasonably be expected
to have a Material Adverse Effect;
(p) 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;
(q) reservations,
limitations, provisos and conditions expressed in any original grant from any Governmental Authority or other grant of real or immovable
property or interests therein;
(r) Liens
consisting of royalties payable with respect to any asset, right or property of the Borrower or its Subsidiaries;
(s) statutory
Liens incurred or pledges or deposits made in favor of a Governmental Authority to secure the performance of obligations of the Borrower
or any of its Subsidiaries under Environmental Laws to which the Borrower or any of its Subsidiaries or any assets of the Borrower or
any of its Subsidiaries is subject, in each case incurred or made in the ordinary course of business or consistent with past practice;
(t) all
rights of expropriation, access or use or other similar right conferred by or reserved by any federal, state or municipal Governmental
Authority;
(u) the
right reserved to, or vested in, any Governmental Authority by any statutory provision or by the terms of any lease, license, franchise,
grant or permit of the Borrower or any Restricted Subsidiary, to terminate any such lease, license, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance thereof;
(v) Liens
arising from Cash Equivalents described in clause (i) of the definition of the term “Cash Equivalents”; and
(w) with
respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by any Applicable Law.
“Permitted
Equal Priority Refinancing Debt” shall mean any secured Indebtedness Incurred by the Borrower and/or the Guarantors in the
form of one or more series of senior secured notes, bonds, debentures or loans; provided that (a) such Indebtedness is
secured by Liens on all or a portion of the Collateral on an equal priority basis with the Liens on the Collateral securing the
Obligations (but without regard to the control of remedies) and is not secured by any property or assets of Holdings, the Borrower
or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth in the
provisos to the definition of “Credit Agreement Refinancing Indebtedness”, (c) such Indebtedness is not at any time
guaranteed by any Persons other than Persons that are Guarantors and (d) the holders of such Indebtedness (or their representative)
and Collateral Agent shall become parties to a Customary Intercreditor Agreement described in clause (a) of the definition thereof
providing that the Liens on the Collateral securing such obligations shall rank equal in priority to the Liens on the Collateral
securing the Obligations (but without regard to the control of remedies).
“Permitted
Holder Group” shall have the meaning provided in the definition of the term “Permitted Holders”.
“Permitted
Holders” shall mean each of (a) the Investors, (b) the Employee Investors and (c) other than for purposes of determining the
“Permitted Holders” for purposes of clause (a)(i) of the definition of “Change of Control”, any group (within
the meaning of Section 13(d)(3) of the Exchange Act (or any successor provision)) the members of which include any of the Permitted Holders
specified in clauses (a) or (b) above (a “Permitted Holder Group”); provided that, in the case of any Permitted
Holder Group, no Person or other group (other than the Permitted Holders specified in clauses (a) or (b) above) own, directly or indirectly,
Capital Stock having more than 50.0% of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New
Holdings or Successor Holdings) or any Parent Entity held by such Permitted Holder Group.
“Permitted
Initial Revolving Credit Borrowing Purposes” shall mean one or more Borrowings of Revolving Credit Loans equal to the sum of
(a) an amount sufficient to fund any OID or upfront fees required to be funded pursuant to the “flex provisions” of the Fee
Letter on the Closing Date plus (b) an amount sufficient to fund any ordinary course working capital requirements of the Borrower
and its Subsidiaries (including the Target, Amplify and their respective Subsidiaries) on the Closing Date plus (c) an amount sufficient
to cash collateralize letters of credit outstanding immediately prior to the Closing Date under the Existing Credit Facility plus
(d) an amount not to exceed $5,000,000 to pay the Merger Consideration, the Existing Debt Refinancing and/or the Transaction Expenses
(including any OID or upfront fees).
“Permitted Investment” shall have the meaning
provided in Section 10.5.
“Permitted
Junior Priority Refinancing Debt” shall mean secured Indebtedness Incurred by any Credit Party in the form of one or more series
of junior lien secured notes, bonds or debentures or junior lien secured loans; provided that (a) such Indebtedness is secured
by Liens on all or a portion of the Collateral on a junior priority basis to the Liens on the Collateral securing the Obligations and
any other First Lien Obligations and is not secured by any property or assets of Holdings, the Borrower or any Restricted Subsidiary other
than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth in the provisos in the definition of “Credit
Agreement Refinancing Indebtedness” (provided that such Indebtedness may be secured by a Lien on the Collateral that ranks
junior in priority to the Liens on the Collateral securing the Obligations and any other First Lien Obligations, notwithstanding any provision
to the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness”), (c) the holders of such Indebtedness
(or their representative) and the Collateral Agent shall become parties to a Customary Intercreditor Agreement described in clause (b)
of the definition thereof providing that the Liens on the Collateral securing such obligations shall rank junior in priority to the Liens
on the Collateral securing the Obligations, and (d) such Indebtedness is not at any time guaranteed by any Person other than Persons that
are Guarantors.
“Permitted
Refinancing Indebtedness” shall mean, with respect to any Indebtedness (the “Refinanced Indebtedness”),
any Indebtedness Incurred in exchange for or as a replacement of (including by entering into alternative financing arrangements in
respect of such exchange or replacement (in whole or in part), by adding or replacing lenders, creditors, agents, borrowers and/or
guarantors, or, after the original instrument giving rise to such Indebtedness has been terminated, by entering into any credit
agreement, loan agreement, note purchase agreement, indenture or other agreement), or the net proceeds of which are to be used for
the purpose of modifying, extending, refinancing, renewing, replacing, redeeming, repurchasing, defeasing, acquiring, amending,
supplementing, restructuring, repaying, prepaying, retiring, extinguishing or refunding (collectively to
“Refinance” or a “Refinancing” or “Refinanced”), such Refinanced
Indebtedness (or previous refinancing thereof constituting Permitted Refinancing Indebtedness); provided that (A) the
principal amount (or accreted value, if applicable) of any such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Refinanced Indebtedness outstanding immediately prior to the consummation of such
Refinancing except by an amount equal to the unpaid accrued interest, dividends and premium (including tender premiums), if any,
thereon plus defeasance costs, underwriting discounts and other amounts paid and fees and expenses (including OID, closing
payments, upfront fees and similar fees) incurred in connection with such Refinancing plus an amount equal to any existing
commitment unutilized and letters of credit undrawn thereunder, (B) if the Indebtedness being Refinanced is Indebtedness permitted
by Section 10.1(a), 10.1(h) or 10.1(u), the direct and contingent obligors with respect to such Permitted Refinancing Indebtedness
are not changed (except that any Credit Party may be added as an additional direct or contingent obligor in respect of such
Permitted Refinancing Indebtedness), (C) other than with respect to a Refinancing in respect of Indebtedness permitted pursuant to
Section 10.1(f) or Section 10.1(g), such Permitted Refinancing Indebtedness shall have a final maturity date equal to or earlier
than the final maturity date of, and shall have a Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Refinanced Indebtedness; provided that the foregoing requirements of this clause (C) shall not apply
to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which any such
customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (C) and such conversion or
exchange is subject only to conditions customary for similar conversions or exchanges, and (D) if the Indebtedness being Refinanced
is Indebtedness permitted by Section 10.1(a), 10.1(h) or 10.1(u), except for any of the following that are only applicable to
periods after the Latest Maturity Date, the terms and conditions contained in the documentation governing such Permitted Refinancing
Indebtedness, taken as a whole, are determined by the Borrower to either (A) be consistent with market terms and conditions and
conditions at the time of incurrence, issuance or effectiveness or (B) not be materially more restrictive on the obligor or obligors
of such Indebtedness than the terms and conditions contained in the documentation governing such Refinanced Indebtedness being
Refinanced (including, if applicable, as to collateral priority and subordination, but excluding as to interest rates (including
through fixed exchange rates), interest rate margins, rate floors, fees, maturity, currency denomination, funding discounts,
original issue discount and redemption or prepayment terms and premiums) (provided that, if the documentation governing such
Permitted Refinancing Indebtedness contains a Previously Absent Financial Maintenance Covenant, the Administrative Agent shall have
been given prompt written notice thereof and this Agreement shall be amended to include such Previously Absent Financial Maintenance
Covenant for the benefit of each Credit Facility (provided, however, that if (x) the documentation governing the
Permitted Refinancing Indebtedness that includes a Previously Absent Financial Maintenance Covenant consists of a revolving credit
facility (whether or not the documentation therefor includes any other facilities) and (y) such Previously Absent Financial
Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility
or a covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance
Covenant shall only be included in this Agreement for the benefit of each revolving credit facility hereunder (and not for the
benefit of any term loan facility hereunder) and such Permitted Refinancing Indebtedness shall not be deemed “more
restrictive” solely as a result of such Previously Absent Financial Maintenance Covenant benefiting only such revolving credit
facilities)); provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at
least five Business Days prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy the foregoing requirement in clause (D) shall be conclusive evidence
that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such
five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees).
“Permitted
Unsecured Refinancing Debt” shall mean unsecured Indebtedness Incurred by any Credit Party in the form of one or more series
of senior, senior subordinated or subordinated unsecured notes, bonds, debentures or loans; provided that (a) such Indebtedness
satisfies the applicable requirements set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness”
and (b) such Indebtedness is not at any time guaranteed by any Persons other than Persons that are Guarantors.
“Person”
shall mean any individual, partnership, Joint Venture, firm, corporation, unlimited liability company, limited liability company, association,
trust or other enterprise or any Governmental Authority.
“Planned Expenditures” shall have the meaning
provided in the definition of the term “Excess Cash Flow.”
“Platform” shall have the meaning provided
in Section 13.2.
“Pledge
Agreement” shall mean the Pledge Agreement, dated as of the Closing Date, among Holdings, the Borrower, the Domestic Subsidiary
pledgors party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C.
“Preferred Stock”
shall mean any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“Prepayment Event”
shall mean any Asset Sale Prepayment Event, Recovery Prepayment Event or Debt Incurrence Prepayment Event.
“Prepayment Premium Period” shall have
the meaning provided in Section 5.1(b).
“Present
Fair Saleable Value” shall mean the amount that could be obtained by an independent willing seller from an independent willing
buyer if the assets (both tangible and intangible) of the applicable Person and its subsidiaries taken as a whole are sold on a going-concern
basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises
insofar as such conditions can be reasonably evaluated.
“Previous Holdings” shall have the meaning
provided in the definition of the term “Holdings.”
“Previously
Absent Financial Maintenance Covenant” shall mean, at any time (x) any financial maintenance covenant that is not included in
this Agreement at such time and (y) any financial maintenance covenant in any other Indebtedness that is included in this Agreement at
such time but with covenant levels that are more restrictive on the Borrower and the Restricted Subsidiaries than the covenant levels
included in this Agreement at such time.
“Prime
Rate” shall mean the rate of interest last quoted by The Wall Street Journal (or another national publication selected by the
Administrative Agent and reasonably acceptable to the Borrower) as the “Prime Rate” in the U.S. or, if The Wall Street Journal
or such other national publication 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 determined by the Administrative Agent) or any similar release by the
Federal Reserve Board (as determined by the Administrative Agent).
“Proceeding” shall have the meaning provided
in Section 13.5(a)(iii).
“Pro Forma Balance Sheet” shall have the
meaning provided in Section 8.9(b).
“Pro Forma Entity”
shall mean any Acquired Entity or Business, any Sold Entity or Business, any Converted Restricted Subsidiary or any Converted Unrestricted
Subsidiary.
“Pro Forma Financial Statements” shall
have the meaning provided in Section 8.9(b).
“Public
Company” shall mean any Person with a class or series of Capital Stock that is traded on the New York Stock Exchange, the NASDAQ
or any comparable stock exchange or similar market.
“Public
Company Costs” shall mean costs relating to compliance with the provisions of the Securities Act and the Exchange Act, in each
case 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, costs 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.
“Public Lender” shall have the meaning
provided in Section 13.2.
“Purchasing Borrower Party”
shall mean Holdings, the Borrower or any Restricted Subsidiary of the Borrower that becomes a Transferee pursuant to Section 13.6(g).
“Qualified Capital Stock” shall mean any
Capital Stock that is not Disqualified Capital Stock.
“Qualified
Proceeds” shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business; provided
that the Fair Market Value of any such assets or Capital Stock shall be determined by the Borrower in good faith.
“Qualified
Receivables Facility” shall mean any Receivables Facility of a Receivables Subsidiary that meets the following conditions: (a)
the 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 Borrower and its Restricted Subsidiaries; (b) all sales
of accounts receivables and related assets by the 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 Borrower); (c) the financing terms, covenants, termination events and
other provisions thereof shall be on market terms (as determined in good faith by the 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 Borrower or any of its Restricted Subsidiaries (other than a
Receivables Subsidiary).
“Qualifying
IPO” shall mean the issuance by Holdings (or any Parent Entity of Holdings) of its common Capital Stock in an underwritten primary
public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration
statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“Rating
Agency” shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Initial Term
Loans and/or the Borrower and/or any other Person, instrument or security publicly available, a nationally recognized statistical rating
agency or agencies, as the case may be, selected by the Borrower which shall be substituted for Moody’s or S&P or both, as the
case may be.
“Real
Property” shall mean, collectively, all right, title and interest in and to any and all parcels of or interests in real property
owned or leased by any person, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements
and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership
thereof.
“Receivables
Facility” shall mean any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed,
restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants
and indemnities made in connection with such facilities) to the Borrower or any of the Restricted Subsidiaries (other than a Receivables
Subsidiary) pursuant to which the Borrower or any of the Restricted Subsidiaries sells its accounts receivable 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
its accounts receivable 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
Fees” shall mean distributions or payments made directly or by means of discounts with respect to any accounts receivable or
participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary
in connection with, any Receivables Facility.
“Receivables
Subsidiary” shall mean any Subsidiary formed for the purpose of, and that solely engages only in, one or more Receivables Facilities
and other activities reasonably related thereto.
“Recovery
Event” shall mean (a) any damage to, destruction of, or other casualty or loss involving, any property or asset or (b) any seizure,
condemnation, confiscation or taking under the power of eminent domain of, or any requisition of title or use of or relating to, or any
similar event in respect of, any property or asset, in each case, of the Borrower or a Restricted Subsidiary.
“Recovery
Prepayment Event” shall mean the receipt of cash proceeds with respect to any settlement or payment in connection with any
Recovery Event in respect of any property or asset of the Borrower or any Restricted Subsidiary; provided that the term
“Recovery Prepayment Event” shall not include any Asset Sale Prepayment Event.
“Redemption Notice” shall have the meaning
provided in Section 10.7(a).
“Reference
Rate” shall mean an interest rate per annum equal to the rate per annum determined by the Administrative Agent at approximately
11:00 a.m. (London time) on such day by reference to ICE Benchmark Administration Limited’s “LIBOR” rate (or by reference
to the rates provided by any Person that take over the administration of such rate if ICE Benchmark Administration Limited is no longer
making a “LIBOR” rate available) for deposits in Dollars (as set forth on the Bloomberg screen displaying such “LIBOR”
rate (or, in the event such rate does not appear on a Bloomberg page or screen, on any successor or substitute page or screen that displays
such rate, or on the appropriate page of such other information service that publishes such rate from time to time, in each case as selected
by the Administrative Agent)) for a period equal to three-months; provided that, to the extent that the Eurodollar Rate is not
ascertainable pursuant to the foregoing, the Reference Rate shall be determined by the Administrative Agent to be the average of the rates
per annum at which deposits in Dollars are offered for a three month Interest Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on such date.
“Refinance,”
“Refinancing” and “Refinanced” shall have the meanings provided in the definition of the term “Permitted
Refinancing Indebtedness”.
“Refinanced
Debt” shall have the meaning provided in the definition of Credit Agreement Refinancing Indebtedness.
“Refinanced
Indebtedness” shall have the meaning provided in the definition of the term “Permitted Refinancing Indebtedness”.
“Refunding Capital Stock” shall have the
meaning provided in Section 10.6(a).
“Register” shall have the meaning provided
in Section 13.6(b)(v).
“Regulation
D” shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Regulation
T” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Regulation
U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Regulation
X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Reinvestment
Period” shall mean, with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event, the day which is eighteen
months after the receipt of cash proceeds by the Borrower or any Restricted Subsidiary from such Asset Sale Prepayment Event or Recovery
Prepayment Event.
“Related
Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees,
agents, advisors, controlling Persons and other representatives and successors of such Person or such Person’s Affiliates.
“Release”
shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration
into or through the Environment or within, from or into any building, structure, facility or fixture.
“Repayment
Amount” shall mean any Initial Term Loan Repayment Amount, an Extended Term Loan Repayment Amount with respect to any Extension
Series and the amount of any installment of Incremental Term Loans scheduled to be repaid on any date.
“Reportable
Event” shall mean an event described in Section 4043(c) of ERISA and the regulations thereunder, other than those events as
to which the 30 day notice period referred to in Section 4043 of ERISA has been waived, with respect to a Pension Plan (other than a Pension
Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) and (o) of Section 414 of
the Code).
“Repricing
Transaction” shall mean (a) the Incurrence by the Borrower of any term loans (including, without limitation, any new or additional
term loans under this Agreement, whether Incurred directly or by way of the conversion of Initial Term Loans into a new Class of replacement
term loans under this Agreement) that are broadly syndicated under credit facilities (i) having an Effective Yield that is less than the
Effective Yield for the Initial Term Loans of the respective equivalent Type, but excluding Indebtedness Incurred in connection with a
Qualifying IPO, Change of Control (or transaction that if consummated would constitute a Change of Control) or Transformative Acquisition
and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part,
outstanding principal of Initial Term Loans or (b) any effective reduction in the Effective Yield for the Initial Term Loans (e.g., by
way of amendment, waiver or otherwise), except for a reduction in connection with a Qualifying IPO, Change of Control (or transaction
that if consummated would constitute a Change of Control) or Transformative Acquisition and, in the case of any transaction under either
clause (a) or clause (b) above, the primary purpose of which is to lower the Effective Yield on any Initial Term Loans. Any determination
by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and binding on all
Lenders holding Initial Term Loans.
“Required
Lenders” shall mean, at any date and subject to the limitations set forth in Section 13.6(h), Non- Defaulting Lenders having
or holding greater than 50% of the sum of (a) the outstanding principal amount of the Term Loans in the aggregate at such date, (b)(i)
the Adjusted Total Revolving Credit Commitment at such date and the Adjusted Total Extended Revolving Credit Commitment of all Classes
at such date or (ii) if the Total Revolving Credit Commitment (or any Total Extended Revolving Credit Commitment of any Class) has been
terminated or, for the purposes of acceleration pursuant to Section 11, the outstanding principal amount of the Revolving Credit Loans
and Letter of Credit Exposure (excluding the Revolving Credit Exposure of Defaulting Lenders) in the aggregate at such date and/or the
outstanding principal amount of the Extended Revolving Credit Loans and letter of credit exposure under such Extended Revolving Credit
Commitments (excluding any such Extended Revolving Credit Loans and letter of credit exposure of Defaulting Lenders) at such date and
(c)(i) the Adjusted Total Additional/Replacement Revolving Credit Commitment of each Class of Additional/Replacement Revolving Credit
Commitments at such date or (ii) if the Adjusted Total Additional/Replacement Revolving Credit Commitment of any Class of Additional/Replacement
Revolving Credit Commitments has been terminated or for purposes of acceleration pursuant to Section 11, the outstanding principal amount
of the Additional/Replacement Revolving Credit Loans of such Class and the related revolving credit exposure (excluding the revolving
credit exposure of Defaulting Lenders) in the aggregate at such date.
“Required Reimbursement Date” shall have
the meaning provided in Section 3.4(a).
“Required
Revolving Credit Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding greater than 50% of the Adjusted
Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment has been terminated at such time, a majority
of the outstanding principal amount of the Revolving Credit Loans and Revolving Credit Exposure (excluding the Revolving Credit Exposure
of Defaulting Lenders) at such time).
“Restoration
Certification” shall mean, with respect to any Recovery Prepayment Event, a certification made by an Authorized Officer of
the Borrower or a Restricted Subsidiary, as applicable, to the Administrative Agent prior to the end of the Reinvestment Period
certifying (a) that the Borrower or such Restricted Subsidiary intends to use the proceeds received in connection with such Recovery
Prepayment Event to repair, restore or replace the property or assets in respect of which such Recovery Prepayment Event occurred,
or otherwise invest in assets useful to the business, (b) the approximate costs of completion of such repair, restoration or
replacement and (c) that such repair, restoration, reinvestment, or replacement will be completed within the later of (x) eighteen
months after the date on which cash proceeds with respect to such Recovery Prepayment Event were received and (y) 180 days after
delivery of such Restoration Certification.
“Restricted Investments” shall mean any
Investment other than a Permitted Investment.
“Restricted
Payment Amount” shall mean, at any time, the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for the Test Period most recently ended (measured as of such date) based upon the Section 9.1 Financials most
recently delivered on or prior to such date, minus the sum of (a) the amount utilized by the Borrower or any Restricted Subsidiary
to make Restricted Payments in reliance on Section 10.6(f)(iv), (b) the amount utilized by the Borrower or any Restricted Subsidiary to
Investments in reliance on Section 10.5(vv) (c) the amount utilized by the Borrower or any Restricted Subsidiary to prepay, repurchase,
redeem or otherwise defease or make similar payments in respect of Junior Debt prior to its stated maturity made by the Borrower or any
Restricted Subsidiary in reliance on Section 10.7(a)(iii)(D).
“Restricted Payments” shall have the meaning
provided in Section 10.6.
“Restricted
Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary. Unless otherwise expressly provided
herein, all references herein to a “Restricted Subsidiary” shall mean a Restricted Subsidiary of the Borrower.
“Retained
Asset Sale Proceeds” shall mean that portion of the Net Cash Proceeds of an Asset Sale Prepayment Event or Recovery Payment
Event not required to be offered to prepay Term Loans pursuant to Section 5.2(a)(i) due to the Disposition Percentage being less than
100%.
“Retained Refused Proceeds” shall have
the meaning provided in Section 5.2(c)(ii).
“Return”
shall mean, with respect to any Investment, any dividend, distribution, interest, fee, premium, return of capital, repayment of principal,
income, profit (from a Disposition or otherwise) and any other similar amount received or realized in respect thereof.
“Revolving
Credit Borrowing” shall mean a borrowing consisting of Revolving Credit Loans of the same Type and Class and, in the case of
Eurodollar Loans, having the same Interest Period made by each of the Revolving Credit Lenders under such Class pursuant to Section 2.1(b).
“Revolving
Credit Commitment” shall mean, (a) with respect to each Lender that is a Lender on the Closing Date, the amount set forth opposite
such Lender’s name on Schedule 1.1(a) as such Lender’s “Revolving Credit Commitment,” (b) in the case of any Lender
that becomes a Lender after the Closing Date, the amount specified as such Lender’s “Revolving Credit Commitment” in
the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment and (c) in the
case of any Lender that increases its Revolving Credit Commitment or becomes an Incremental Revolving Credit Commitment Increase Lender
in respect of the Revolving Credit Facility, in each case pursuant to Section 2.14, the amount specified in the applicable Incremental
Agreement, in each case as the same may be changed from time to time pursuant to terms hereof. The aggregate amount of Revolving Credit
Commitments as of the Closing Date is $50,000,000.
“Revolving
Credit Commitment Percentage” shall mean, at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s
Revolving Credit Commitment by (b) the aggregate amount of the Revolving Credit Commitments of all Revolving Credit Lenders; provided
that, at any time when the Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit Commitment
Percentage shall be its Revolving Credit Commitment Percentage as in effect immediately prior to such termination.
“Revolving
Credit Exposure” shall mean, with respect to any Lender at any time, the sum of (a) the aggregate principal amount of the Revolving
Credit Loans of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at such time and (c) such Lender’s
Swingline Exposure at such time.
“Revolving Credit Extension Request” shall
have the meaning provided in Section 2.15(b).
“Revolving Credit Facility” shall have
the meaning provided in the recitals to this Agreement.
“Revolving Credit Lender”
shall mean, at any time, any Lender that has a Revolving Credit Commitment at such time.
“Revolving Credit Loan” shall have the
meaning provided in Section 2.1(b)(i).
“Revolving
Credit Maturity Date” shall mean the fifth anniversary of the Closing Date, or, if such anniversary is not a Business Day, the
Business Day immediately following such anniversary.
“Revolving
Credit Note” shall mean a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns,
in substantially the form of Exhibit F-1 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit Lender
resulting from the Revolving Credit Loans made by such Revolving Credit Lender.
“Revolving
Credit Termination Date” shall mean the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit
Loans shall be outstanding and the Letter of Credit Obligations shall have been reduced to zero or Cash Collateralized.
“Rollover Investors” shall have the meaning
provided in the recitals to this Agreement.
“S&P”
shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.
“Sale
Leaseback” shall mean any transaction or series of related transactions pursuant to which the Borrower or any of the Restricted
Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and
(b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the
same purpose or purposes as the property being sold, transferred or Disposed of.
“Sanctions” shall mean any U.S. sanctions
administered by OFAC or the U.S. Department of State.
“SEC” shall mean the Securities and Exchange
Commission or any successor thereto.
“Section
9.1 Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a)
or 9.1(b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).
“Secured
Cash Management Agreement” shall mean, at the Borrower’s written election to the Administrative Agent, any agreement relating
to Cash Management Services that is entered into by and between Holdings, the Borrower or any Restricted Subsidiary and a Cash Management
Bank.
“Secured
Hedging Agreement” shall mean, at the Borrower’s written election to the Administrative Agent, any Hedging Agreement that
is entered into by and between Holdings, the Borrower or any Restricted Subsidiary and any Hedge Bank. For purposes of the preceding sentence,
the Borrower may deliver one notice designating all Hedging Agreements entered into pursuant to a specified Master Agreement as “Specified
Hedging Agreements”.
“Secured
Parties” shall mean, collectively, (a) the Lenders, (b) the Letter of Credit Issuers, (c) the Swingline Lender, (d) the Administrative
Agent, (e) the Collateral Agent, (f) each Hedge Bank, (g) each Cash Management Bank, (h) the beneficiaries of each indemnification obligation
undertaken by any Credit Party under the Credit Documents and (i) any successors, endorsees, permitted transferees and permitted assigns
of each of the foregoing.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securitization
Repurchase Obligation” shall mean any obligation of a seller (or any guaranty of such obligation) of assets subject to a Receivables
Facility in 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 the seller.
“Security
Agreement” shall mean the Security Agreement, dated as of the Closing Date, among Holdings, the Borrower, the Domestic Subsidiary
grantors party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B.
“Security
Documents” shall mean, collectively the Security Agreement, the Pledge Agreement, the Mortgages, if any, and each other security
agreement or other instrument or document executed and delivered pursuant to Section 6.2, 9.10, 9.11 or 9.14 and any Customary Intercreditor
Agreement executed and delivered pursuant to Section 10.2 or pursuant to any of the Security Documents.
“Similar
Business” shall mean any business conducted or proposed to be conducted by the Borrower and the Restricted Subsidiaries on the
Closing Date or any business that is similar, reasonably related, incidental or ancillary thereto.
“Software” shall have the meaning provided
in the Security Agreement.
“Sold Entity or Business”
shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Solvent” shall mean, at the time of determination:
(a)
each of the Fair Value and the Present Fair Saleable Value of the assets of a Person and its Subsidiaries taken as a whole exceed
their Stated Liabilities and Identified Contingent Liabilities; and
(b) such Person and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and
(c)
such Person and its Subsidiaries taken as a whole can pay their Stated Liabilities and Identified Contingent Liabilities as they
mature.
Defined terms
used in the foregoing definition shall have the meanings set forth in the solvency certificate delivered on the Closing Date pursuant
to Section 6.8.
“Special
Purpose Subsidiary” shall mean any (a) not-for-profit Subsidiary, (b) captive insurance company or (c) Receivables Subsidiary
and any other Subsidiary formed for a specific bona fide purpose not including substantive business operations and that does not own any
material assets, in each case, that has been designated as a “Special Purpose Subsidiary” by the Borrower.
“Specified
Acquisition Agreement Representations” shall mean the representations and warranties made by, or with respect to, the Target
and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Holdings
(or its affiliates) has the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the
Acquisition Agreement or to decline to consummate the Mergers (in accordance with the terms thereof) as a result of a breach of such representations
and warranties in the Acquisition Agreement.
“Specified Debt Incurrence Prepayment Event”
shall have the meaning provided in Section 5.2(a)(i).
“Specified Existing Revolving
Credit Commitment” shall mean any Existing Revolving Credit Commitments belonging to a Specified Existing Revolving Credit Commitment
Class.
“Specified
Existing Revolving Credit Commitment Class” shall have the meaning provided in Section 2.15(b).
“Specified
Representations” shall mean the representations and warranties of the Borrower and the Guarantors set forth in Sections 8.1
(with respect to the organizational existence only of Holdings and Merger Sub), the first two sentences of Section 8.2, Section 8.3(c)
(with respect to the Incurrence of the Loans on the Closing Date only, the provision of the Guarantees by the Credit Parties on the Closing
Date and the granting of the Liens on the Collateral by the Credit Parties on the Closing Date), Section 8.5, Section 8.7, Section 8.16,
Section 8.19(b) (with respect to the use of the proceeds of the Loans on the Closing Date), Section 8.20(b) (with respect to the use of
the proceeds of the Loans on the Closing Date), Section 8.21, Section 8.23 and Section 3.3 of the Security Agreement (limited to the Security
Documents required to be delivered on the Closing Date and the other requirements set forth in Section 6).
“Specified
Restructuring” means any restructuring initiative, cost saving initiative or other similar strategic initiative of the Borrower
or any of its Restricted Subsidiaries after the Closing Date described in reasonable detail in a certificate of an Authorized Officer
delivered by the Borrower to the Administrative Agent.
“Specified
Subsidiary” shall mean, at any date of determination, any Restricted Subsidiary that would be a “significant subsidiary”
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the
Closing Date.
“Specified
Transaction” shall mean, with respect to any period, any Investment (including Acquisitions), sale, transfer or other Disposition
of assets or property, Incurrence, Refinancing, prepayment, redemption, repurchase, defeasance, acquisition, similar payment, extinguishment,
retirement or repayment of Indebtedness, Restricted Payment, Subsidiary designation, provision of Incremental Term Loans, provision of
Incremental Revolving Credit Commitment Increases, provision of Additional/Replacement Revolving Credit Commitments, creation of Extended
Term Loans or Extended Revolving Credit Commitments or other event that by the terms of the Credit 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.
“Sponsor”
shall mean, collectively Hellman & Friedman LLC and/or its Affiliates and any funds, partnerships or other co-investment vehicles
managed, advised or controlled by the foregoing or their respective Affiliates, but excluding any operating portfolio companies of Hellman
& Friedman LLC or any such Affiliate.
“SPV” shall have the meaning provided in
Section 13.6(c).
“Standard
Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Borrower
or any Subsidiary of the Borrower which the 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.
“Stated
Amount” of any Letter of Credit shall mean, unless otherwise specified herein, the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter
of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving pro forma effect to all such increases,
whether or not such maximum stated amount is in effect at such time.
“Statutory Reserves” shall have the meaning
provided in the definition of the term “Eurodollar Rate.”
“Subordinated
Indebtedness” shall mean any third-party Indebtedness for borrowed money (and any Guarantee Obligation in respect thereof) that
is subordinated expressly by its terms in right of payment to the Obligations.
“Subordinated
Indebtedness Documentation” shall mean any document or instrument issued or executed with respect to any Subordinated Indebtedness.
“Subsidiary”
of any Person shall mean and include (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and (b) any limited liability company, partnership, association, Joint
Venture or other entity in which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the time.
Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.
“Subsidiary Guarantor” shall mean each
Guarantor that is a Subsidiary of the Borrower.
“Successor Borrower” shall have the meaning
provided in Section 10.3(a).
“Successor Holdings” shall have the meaning
provided in Section 10.9(b).
“Swap” shall mean
any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity
Exchange Act.
“Swap Obligation” shall mean any obligation
to pay or perform under any Swap.
“Swap
Termination Value” shall mean, in respect of any one or more Hedging Agreements, after taking into account the effect of any
legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements
have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior
to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which
may include a Lender or any Affiliate of a Lender).
“Swingline Commitment” shall mean $5,000,000.
“Swingline
Exposure” shall mean, with respect to any Lender, at any time, such Lender’s Revolving Credit Commitment Percentage of
the Swingline Loans outstanding at such time.
“Swingline
Lender” shall mean UBS AG, Stamford Branch, in its capacity as lender of Swingline Loans hereunder, or such other financial
institution that, after the Closing Date, shall agree to act in the capacity of lender of Swingline Loans hereunder. In the event that
there is more than one Swingline Lender at any time, references herein and in the other Credit Documents to the Swingline Lender shall
be deemed to refer to the Swingline Lender in respect of the applicable Swingline Loan or to all Swingline Lenders, as the context requires.
“Swingline Loan” shall have the meaning
provided in Section 2.1(d)(i).
“Swingline Maturity Date”
shall mean, with respect to any Swingline Loan, the date that is three Business Days prior to the Revolving Credit Maturity Date.
“Target” shall have the meaning provided
in the recitals to this Agreement.
“Taxes” shall have the meaning provided
in Section 5.4(a).
“Term Loan” shall
mean an Initial Term Loan, an Incremental Term Loan or any Extended Term Loan, as applicable.
“Term Loan Exchange Notes” shall have the
meaning provided in Section 2.17(a).
“Term Loan Exchange Effective Date” shall
have the meaning provided in Section 2.17(a).
“Term Loan Extension Request” shall have
the meaning provided in Section 2.15(a).
“Term
Loan Facility” shall mean any of the Initial Term Loan Facility, any Incremental Term Loan Facility and any Extended Term Loan
Facility.
“Term
Note” shall mean a promissory note of the Borrower payable to any Initial Term Loan Lender or its registered assigns, in substantially
the form of Exhibit F-2 hereto, evidencing the aggregate Indebtedness of the Borrower to such Initial Term Loan Lender resulting from
the Initial Term Loans made by such Initial Term Loan Lender.
“Test
Period” shall mean, for any determination under this Agreement, the most recent period of four consecutive fiscal quarters of
the Borrower ended on or prior to such date of determination (taken as one accounting period) in respect of which Section 9.1 Financials
shall have been delivered to the Administrative Agent for each fiscal quarter or fiscal year in such period; provided that, prior
to the first date that Section 9.1 Financials shall have been delivered pursuant to Section 9.1(a) or (b), the Test Period in effect shall
be the period of four consecutive fiscal quarters of the Borrower ended June 30, 2017. A Test Period may be designated by reference to
the last day thereof (i.e. the June 30, 2017 Test Period refers to the period of four consecutive fiscal quarters of the Borrower ended
June 30, 2017), and a Test Period shall be deemed to end on the last day thereof.
“Total
Additional/Replacement Revolving Credit Commitment” shall mean the sum of Additional/Replacement Revolving Credit Commitments
of all the Lenders providing any Class of Additional/Replacement Revolving Credit Commitments.
“Total
Commitment” shall mean the sum of the Total Initial Term Loan Commitment, the Total Incremental Term Loan Commitment, the Total
Revolving Credit Commitment, the Total Additional/Replacement Revolving Credit Commitment and the Total Extended Revolving Credit Commitment
of each Extension Series.
“Total
Credit Exposure” shall mean, at any date, the sum, without duplication, of the Total Revolving Credit Commitment at such date
(or, if the Total Revolving Credit Commitment shall have terminated on such date, the aggregate Revolving Credit Exposure of all Revolving
Credit Lenders at such date), the Total Additional/Replacement Revolving Credit Commitment at such date (or, if the Total Additional/Replacement
Revolving Credit Commitment shall have been terminated on such date, the aggregate exposure of all Additional/Replacement Revolving Credit
Lenders at such date), the Total Extended Revolving Credit Commitment of each Extension Series at such date (or if the Total Extended
Revolving Credit Commitment of any Extension Series shall have been terminated on such date, the aggregate exposures of all lenders under
such series at such date) and the outstanding principal amount of all Term Loans at such date.
“Total
Extended Revolving Credit Commitment” shall mean the sum of all Extended Revolving Credit Commitments of all Lenders under each
Extension Series.
“Total
Incremental Term Loan Commitment” shall mean the sum of the Incremental Term Loan Commitments of any Class of Incremental Term
Loans of all the Lenders providing such Class of Incremental Term Loans.
“Total
Initial Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments of all the Lenders.
“Total
Revolving Credit Commitment” shall mean, on any date, the sum of the Revolving Credit Commitments on such date of all the Revolving
Credit Lenders.
“Transaction
Expenses” shall mean any fees or expenses incurred or paid by the Sponsor, Investors, Merger Sub, Merger Sub II, Holdings,
the Borrower, any of their Subsidiaries or any of their Affiliates in connection with the Transactions, this Agreement and the other
Credit Documents and the transactions contemplated hereby and thereby.
“Transactions”
shall mean, collectively, (a) the formation of Holdings, Merger Sub, Merger Sub II and any Parent Entity of Holdings for purposes of consummating
the other transactions contemplated by the Acquisition Agreement, (b) the entry into the Acquisition Agreement, the Commitment Letter,
the Fee Letter and any other Contractual Obligations in connection therewith, (c) the Equity Contribution, including the rollover consummated
by the Rollover Investors, (d) the Mergers and the consummation of the other transactions contemplated by the Acquisition Agreement, including
the payment of the Merger Consideration and the payment of certain Transaction Expenses, (e) the Existing Debt Refinancing, (f) the entering
into of the Agreement, the other Credit Documents, and funding of the Loans on the Closing Date and the consummation of the other transactions
contemplated by this Agreement and the other Credit Documents and (g) the payment of the Transaction Expenses.
“Transferee” shall have the meaning provided
in Section 13.6(f).
“Transformative
Acquisition” shall mean any acquisition by the Borrower or any Restricted Subsidiary that is either (a) not permitted by the
terms of this Agreement immediately prior to the consummation of such acquisition or (b) if permitted by the terms of this Agreement immediately
prior to the consummation of such acquisition, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility
under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by
the Borrower acting in good faith.
“Treasury Capital Stock” shall have the
meaning provided in Section 10.6(a).
“Type” shall mean as to any Loan, its nature
as an ABR Loan or a Eurodollar Loan.
“UCC”
shall mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.
“UCP”
shall mean, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce
(“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“Unfunded
Current Liability” of any Pension Plan shall mean the amount, if any, by which the present value of the accrued benefits under
the Pension Plan exceeds the Fair Market Value of the assets allocable thereto as of the close of its most recent plan year, determined
in both cases using the applicable assumptions promulgated under Section 430 of the Code.
“United States Tax Compliance Certificate”
shall have the meaning provided in Section 5.4(d).
“Unpaid Drawing” shall have the meaning
provided in Section 3.4(a).
“Unrestricted
Subsidiary” shall mean (a) any Subsidiary of the Borrower that is formed or acquired after the Closing Date and is designated
as an Unrestricted Subsidiary by the Borrower pursuant to Section 9.15 subsequent to the Closing Date, (b) any existing Restricted Subsidiary
of the Borrower that is designated as an Unrestricted Subsidiary by the Borrower pursuant to Section 9.15 subsequent to the Closing Date
and (c) any Subsidiary of an Unrestricted Subsidiary.
“Voting
Stock” shall mean, with respect to any Person, shares of such Person’s Capital Stock that is at the time generally
entitled, without regard to contingencies, to vote in the election of the Board of Directors of such Person. To the extent that a
partnership agreement, limited liability company agreement or other agreement governing a partnership or limited liability company
provides that the members of the Board of Directors of such partnership or limited liability company (or, in the case of a limited
partnership whose business and affairs are managed or controlled by its general partner, the Board of Directors of the general
partner of such limited partnership) is appointed or designated by one or more Persons rather than by a vote of Voting Stock, each
of the Persons who are entitled to appoint or designate the members of such Board of Directors will be deemed to own a percentage of
Voting Stock of such partnership or limited liability company equal to (a) the aggregate votes entitled to be cast on such Board of
Directors by the members of such Board of Directors which such Person or Persons are entitled to appoint or designate divided by (b)
the aggregate number of votes of all members of such Board of Directors.
“Weighted
Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount
of such Indebtedness.
“Wholly-Owned
Subsidiary” shall mean a Subsidiary of a Person, all of the outstanding Capital Stock of which (other than (x) any director’s
qualifying shares and (y) shares issued to other Persons to the extent required by Applicable Law) are owned by such Person and/or by
one or more wholly-owned Subsidiaries of such Person.
“Withdrawal
Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Title IV of ERISA.
“Withholding
Agent” shall mean any Credit Party, the Administrative Agent and, in the case of any U.S. federal withholding tax, any other
withholding agent, if applicable.
“Write-Down
and Conversion Power” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule.
1.2 Other
Interpretive Provisions. With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in
such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular
provision thereof.
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(c)
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The term “including” is by way of example and not limitation.
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(d) Section,
Exhibit and Schedule references are to the Credit Document in which such reference appears.
(e) The
term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or electronic form.
(f) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including”; the words “to” and “until” each mean “to but excluding”;
and the word “through” means “to and including.”
(g) Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Credit Document.
(h) Any
reference to any Person shall be constructed to include such Person’s successors or assigns (subject to any restrictions on assignment
set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or
all of the functions thereof.
(i) Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
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(j)
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The word “will” shall be construed to have the same meaning as the word “shall.”
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(k) The
words “asset” and “property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(a) All
accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP, applied in a manner consistent with that used in preparing the Historical Financial Statements, except as otherwise specifically
prescribed herein; provided, however, that (i) if the Borrower notifies the Administrative Agent that the Borrower requests
an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date on the operation
of such provision, regardless of whether any such notice is given before or after such Accounting Change, then such provision shall be
interpreted as if such Accounting Change had not occurred until such notice shall have been withdrawn or such provision amended in accordance
herewith and (ii) if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof
to eliminate the effect of any Accounting Change occurring after the Closing Date on the operation of such provision, regardless of whether
any such notice is given before or after such Accounting Change, then such provision shall be interpreted as if such Accounting Change
had not occurred until such notice shall have been withdrawn or such provision amended in accordance herewith, but only to the extent
that, without undue burden or expense, the Borrower, its auditors and/or its financial systems are capable of interpreting such provisions
as if such Accounting Change had not occurred.
(b) Where
reference is made to “the Borrower and its Restricted Subsidiaries, on a consolidated basis” or similar language, such consolidation
shall not include any Subsidiaries of the Borrower other than Restricted Subsidiaries.
(c) Notwithstanding
any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations
of amounts and ratios referred to herein shall be made, without giving effect to any election under the Financial Accounting Standards
Board’s Accounting Standards Codification No. 825—Financial Instruments, or any successor thereto (including pursuant to
the Accounting Standards Codification), to value any Indebtedness of Holdings, the Borrower or any Subsidiary at “fair value”
as defined therein.
(d) For
the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business in respect of which a definitive agreement
for the Disposition thereof has been entered into as discontinued operations, the Net Income of such Person or business shall not be
excluded from the calculation of Net Income until such Disposition shall have been consummated.
1.4 Rounding. Any financial ratios required to be maintained or complied with by the 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).
1.5 References
to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organizational Documents, agreements (including
the Credit Documents) and other Contractual Obligations shall be deemed to include all subsequent amendments, restatements, amendment
and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements,
amendment and restatements, extensions, supplements and other modifications are permitted by this Agreement; and (b) references to any
Applicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting
such Applicable Law.
1.6 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight
or standard, as applicable, for times of the day in New York City, New York).
1.7 Timing of Payment or Performance. Except as otherwise provided herein, when the payment of any obligation or the performance
of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such
payment (other than as described in Section 2.5 or Section 2.9) or performance shall extend to the immediately succeeding Business Day.
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1.8
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Currency Equivalents Generally.
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(a) For purposes of any determination under Section 9, Section 10 (other than for purposes of calculating the Consolidated First Lien
Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated
EBITDA Ratio or the Consolidated EBITDA to Consolidated Interest Expense Ratio) or Section 11 or any determination under any other provision
of this Agreement requiring the use of a current exchange rate, all amounts Incurred or proposed to be Incurred in currencies other than
Dollars shall be translated into Dollars at the Exchange Rate then in effect on the date of such determination; provided, however,
that (x) for purposes of determining compliance with Section 10 with respect to the amount of any Indebtedness, Investment, Disposition,
Restricted Payment or payment under Section 10.7 in a currency other than Dollars, no Default or Event of Default shall be deemed to have
occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is Incurred or Disposition,
Restricted Payment or payment under Section 10.7 is made, (y) for purposes of determining compliance with any Dollar-denominated restriction
on the Incurrence of Indebtedness, if such Indebtedness is Incurred to Refinance other Indebtedness denominated in a foreign currency,
and such Refinancing would cause the applicable Dollar- denominated restriction to be exceeded if calculated at the relevant currency
Exchange Rate in effect on the date of such Refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded
so long as the principal amount of the Indebtedness that is Incurred to Refinance such Indebtedness does not exceed the principal amount
(or accreted amount) of such Indebtedness being Refinanced, except by an amount equal to the accrued interest, dividends and premium (including
tender premiums), if any, thereon plus defeasance costs, underwriting discounts and other amounts paid and fees and expenses (including
OID, closing payments, upfront fees and similar fees) incurred in connection with such Refinancing plus an amount equal to any existing
commitment unutilized and letters of credit undrawn thereunder and (z) for the avoidance of doubt, the foregoing provisions of this Section
1.8 shall otherwise apply to such Sections, including with respect to determining whether any Indebtedness or Investment may be Incurred
or Disposition, Restricted Payment or payment under Section 10.7 may be made at any time under such Sections. For purposes of calculating
the Consolidated First Lien Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated
Total Debt to Consolidated EBITDA Ratio and the Consolidated EBITDA to Consolidated Interest Expense Ratio, amounts in currencies other
than Dollars shall be translated into Dollars at the applicable exchange rates used in preparing the most recently delivered financial
statements pursuant to Section 9.1(a) or (b), or, prior to the delivery of such financial statements, the financial statements delivered
pursuant to Section 6.9.
(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 Borrower’s consent (such consent not to be unreasonably withheld) to appropriately reflect a change
in currency of any country and any relevant market conventions or practices relating to such change in currency.
1.9 Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a
“Revolving Credit Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type
(e.g., a “Eurodollar Revolving Credit Loan”). Borrowings also may be classified and referred to by Class(e.g., a “Revolving Credit Borrowing”) or by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Credit Borrowing”).
1.10 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed
to be the Dollar equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar equivalent of the
maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is
in effect at such time.
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1.11
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Limited Condition Acquisitions.
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(a) In
connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with
any provision of this Agreement that requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred,
is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrower, be deemed satisfied,
so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date on which the definitive acquisition
agreements for such Limited Condition Acquisition are entered. For the avoidance of doubt, if the Borrower has exercised its option under
the first sentence of this clause (a), and any Default, Event of Default or specified Event of Default occurs following the date on which
the definitive acquisition agreements for the applicable Limited Condition Acquisition were entered into and prior to or on the date
of the consummation of such Limited Condition Acquisition, any such Default, Event of Default or specified Event of Default shall be
deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited
Condition Acquisition is permitted hereunder.
(b) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining
compliance with any provision of this Agreement which requires the calculation of the Consolidated First Lien Debt to Consolidated EBITDA
Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated EBITDA Ratio or the Consolidated
EBITDA to Consolidated Interest Expense Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA);
in each case, at the option of
the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an
“LCA Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to
be the date on which the definitive acquisition agreements for such Limited Condition Acquisition are entered into (the
“LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other
transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof)
as if they had occurred at the beginning of the Test Period most recently ended on or prior to the applicable LCA Test Date, the
Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket
shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCA Election and any of the
ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in
any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited
Condition Acquisition, on or prior to the date of consummation of the relevant transaction or action, such baskets or ratios will
not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCA Election for any Limited
Condition Acquisition, then in connection with any subsequent calculation of any ratio or test with respect to the Incurrence of
Indebtedness or Liens, or the making of distributions or Restricted Payments, Investments, payments pursuant to Section 10.7,
Dispositions, mergers, Dispositions of all or substantially all of the assets of the Borrower or the designation of an Unrestricted
Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition
Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without
consummation of such Limited Condition Acquisition, any such ratio or test shall be calculated on a pro forma basis assuming such
Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use
of proceeds thereof) have been consummated.
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1.12
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Pro Forma and Other Calculations.
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(a) Notwithstanding
anything to the contrary herein, financial ratios and tests (including measurements of Consolidated EBITDA), including the Consolidated
EBITDA to Consolidated Interest Expense Ratio, Consolidated First Lien Debt to Consolidated EBITDA Ratio, Consolidated Secured Debt to
Consolidated EBITDA Ratio and Consolidated Total Debt to Consolidated EBITDA Ratio shall be calculated in the manner prescribed by this
Section 1.12; provided that, notwithstanding anything to the contrary in clauses (b), (c), (d) or (e) of this Section 1.12, when
calculating the Consolidated First Lien Debt to Consolidated EBITDA Ratio for purposes of (i) the definition of “Applicable Margin,”
and (ii) Sections 5.2(a)(i) and 5.2(a)(ii), the events described in this Section 1.12 that occurred subsequent to the end of the applicable
Test Period shall not be given pro forma effect; provided, however, that for purposes of any determination under the proviso
to Section 5.2(a)(ii), Consolidated First Lien Debt shall be determined after giving pro forma effect to any voluntary prepayments of
Term Loans made pursuant to Section 5.1 after the end of the Borrower’s most recently ended full fiscal year and prior to the date
of the applicable payment to be made pursuant to such Section 5.2(a)(ii) assuming such voluntary prepayments had been made on the last
day of such fiscal year. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis or requires pro forma
compliance, the reference to “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be
a reference to, and shall be based on, the most recently ended Test Period for which Section 9.1 Financials have been delivered.
(b) For
purposes of calculating any financial ratio or test (including Consolidated Total Assets or Consolidated EBITDA), Specified Transactions
(with any Incurrence or Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.12) that
have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the event
for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions
(and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified
Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total Assets or “unrestricted”
cash and Cash Equivalents, on the last day of the applicable Test Period). If, since the beginning of any applicable Test Period, any
Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any Restricted
Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant
to this Section 1.12, then such financial ratio or test (including Consolidated Total Assets and Consolidated EBITDA) shall be calculated
to give pro forma effect thereto in accordance with this Section 1.12.
(c) Whenever
pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction or a Specified Restructuring, the
pro forma calculations shall be made in good faith by an Authorized Officer of the Borrower and may include, for the avoidance of doubt,
the amount of “run rate” cost savings, operating expense reductions and cost synergies and other synergies projected by the
Borrower in good faith to result from or relating to any Specified Transaction (including the Transactions) or Specified Restructuring
that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are
expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions, cost synergies
or other synergies have been taken, have been committed to be taken, with respect to which substantial steps have been taken or which
are expected to be taken (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings,
operating expense reductions, cost synergies and other synergies had been realized on the first day of such period and as if such cost
savings, operating expense reductions, cost synergies and other synergies were realized during the entirety of such period and “run
rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken,
any action with respect to which substantial steps have been taken or any action that is expected to be taken (including any savings
expected to result from the elimination of Public Company Costs, if any) net of the amount of actual benefits realized during such period
from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests
and during any subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction
or Specified Transaction, and any such adjustments included in the initial pro forma calculations shall continue to apply to subsequent
calculations of such financial ratios or tests, including during any subsequent test periods in which the effects thereof are expected
to be realizable; provided that (A) such amounts are reasonably identifiable in the good faith judgment of the Borrower, (B) such
actions are taken, such actions are committed to be taken, substantial steps with respect to such action have been taken or such actions
are expected to be taken no later than eight fiscal quarters after the date of consummation of such Specified Transaction or the date
of initiation of such Specified Restructuring (or, with respect to the Transactions, eight fiscal quarters) and (C) no amounts shall
be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components
thereof), whether through a pro forma adjustment or otherwise, with respect to such period.
(d) In the event that the Borrower or any Restricted Subsidiary Incurs (including by assumption or guarantee) or Refinances (including
by redemption, repurchase, repayment, retirement or extinguishment) any Indebtedness, in each case included in the calculations of any
financial ratio or test, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to
or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated
giving pro forma effect to such Incurrence or Refinancing of Indebtedness (including pro forma effect to the application of the net proceeds
therefrom), in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in
the case of the Consolidated EBITDA to Consolidated Interest Expense Ratio (or similar ratio), in which case such Incurrence or Refinancing
of Indebtedness will be given effect, as if the same had occurred on the first day of the applicable Test Period); provided that,
with respect to any Incurrence of Indebtedness permitted by the provisions of this Agreement in reliance on the pro forma calculation
of the Consolidated First Lien Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated
EBITDA to Consolidated Interest Expense Ratio and/or the Consolidated Total Debt to Consolidated EBITDA Ratio, as applicable, pro forma
effect shall not be given to any Indebtedness being Incurred (or expected to be Incurred) substantially simultaneously or contemporaneously
with the Incurrence of any such Indebtedness in reliance on any “basket” set forth in this Agreement (including the Incremental
Base Amount, any “baskets” measured as a percentage of Consolidated EBITDA) including any Credit Event under the Revolving
Credit Facility or, except to the extent expressly required to be calculated otherwise in Section 2.14 or Section 10.1(u), any Additional/Replacement
Revolving Credit Facility.
(e) Whenever
pro forma effect is to be given to a pro forma event, the pro forma calculations shall be made in good faith by an Authorized Officer
of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness
shall be calculated as if the rate in effect on the date of the event for which the calculation of the Consolidated EBITDA to Consolidated
Interest Expense Ratio is made had been the applicable rate for the entire period (taking into account any interest Hedging Agreements
applicable to such Indebtedness). To the extent interest expense generated by Hedging Obligations that have been terminated is included
in Consolidated Interest Expense prior to the date of the event for which the calculation of the Consolidated EBITDA to Consolidated
Interest Expense Ratio is being made, Consolidated Interest Expense shall be adjusted to exclude such expense. Interest on a Financing
Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by an Authorized Officer of the Borrower to be the
rate of interest implicit in such Financing Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate,
shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower
or applicable Restricted Subsidiary may designate. For purposes of making the computations referred to above, interest on any Indebtedness
under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness
during the applicable period or, if lower, the maximum commitments under such revolving credit facility as of the date of the event for
which the calculation of the Consolidated EBITDA to Consolidated Interest Expense Ratio is being made, except as set forth in Section
1.12(d).
(f) Any
such pro forma calculation may include, without limitation, (1) all adjustments of the type described in clause (a)(viii) of the definition
of “Consolidated EBITDA” to the extent such adjustments, without duplication, continue to be applicable to such Test Period,
and (2) adjustments calculated in accordance with Regulation S-X under the Securities Act.
SECTION 2. Amount and Terms of Credit Facilities.
(a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees
to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (i) shall not exceed,
for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term
Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in Dollars, (iv) may, at the option of the Borrower,
be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Term Loans
made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans
of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed.
On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(b) (i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan
or loans (each, a “Revolving Credit Loan”) to the Borrower in U.S. Dollars, which Revolving Credit Loans (A) shall
not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (B) shall not, after giving pro forma effect thereto
and to the application of the proceeds thereof, result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s
Revolving Credit Commitment at such time, (C) shall not, after giving pro forma effect thereto and to the application of the proceeds
thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit
Commitment then in effect, (D) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving
Credit Maturity Date (provided that notwithstanding the foregoing, the aggregate amount of all Revolving Credit Loans made on the
Closing Date shall not exceed the Initial Revolving Borrowing Amount), (E) may at the option of the Borrower be Incurred and maintained
as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders
pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the
same Type and (F) may be repaid and reborrowed in accordance with the provisions hereof.
(ii) On the
Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full and the Revolving Credit Commitments shall
terminate.
(c) Each
Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such
Eurodollar Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Eurodollar
Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower
resulting therefrom (which obligation of the 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 determines would be otherwise disadvantageous
to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10
shall apply).
(d) (i)
Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time
and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a
“Swingline Loan”) to the Borrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have
the benefit of the provisions of Section 2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D)
shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate
amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Commitment then in effect, (E) may be
repaid and reborrowed in accordance with the provisions hereof and (F) shall mature no later than the date ten Business Days after
such Swingline Loan is made. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline
Lender shall not make any Swingline Loan after receiving a written notice from either the Borrower or the Administrative Agent
stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received
written notice (x) of rescission of all such notices from the party or parties originally delivering such notice, (y) of the waiver
of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such
Default or Event of Default is no longer continuing.
(ii) On
any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower,
that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit
Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day
by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds
thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving
Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon same Business Days’ notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline
Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified
in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default
has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment
after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot
for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any Debtor
Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline
Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such
Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided
that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective
participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing
the same from and after such date of purchase.
(iii) The
Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Lenders
that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline
Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative
Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after
the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender
under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving
Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(iv) The
Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice
thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier
of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery
thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender
shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain
a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made
by it prior to such termination, but shall not make any additional Swingline Loans.
2.2 Minimum
Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing of Term Loans or Revolving
Credit Loans shall be in a multiple of $500,000 (or, in the case of a Borrowing of Revolving Credit Loans on the Closing Date, $100,000),
and Swingline Loans shall be in a multiple of $100,000, and, in each case, shall not be less than the Minimum Borrowing Amount with respect
for such Type of Loans (except that that Mandatory Borrowings shall be made in the amounts required by Section 2.1(d) and Revolving Credit
Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts required by Section 3.3
or Section 3.4, as applicable). More than one Borrowing may be Incurred on any date; provided that at no time shall there be outstanding
more than twelve (12) Eurodollar Borrowings under this Agreement (which number of Eurodollar Borrowings may be increased or adjusted
by agreement between the Borrower and the Administrative Agent in connection with any Incremental Facility or Extended Loans/Commitments).
For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall
be considered separate Borrowings.
(a) The Borrower shall give the Administrative Agent at the Administrative Agent’s Office (i) prior to 1:00 p.m. (New York City
time) at least three Business Days’ prior written notice of the Borrowing of Initial Term Loans or any Borrowing of Incremental
Term Loans (unless otherwise set forth in the applicable Incremental Agreement), as the case may be, if all or any of such Term Loans
are to be initially Eurodollar Loans and (ii) written notice prior to 12:00 p.m. (New York City time) on the date of the Borrowing of
Initial Term Loans or any Borrowing of Incremental Term Loans, as the case may be, if all or any of such Term Loans are to be ABR Loans.
Such notice (together with each notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(b) and each notice of a Borrowing
of Swingline Loans pursuant to Section 2.3(c), a “Notice of Borrowing”) shall be in substantially the form of Exhibit
D and shall specify (i) the aggregate principal amount of the Initial Term Loans or Incremental Term Loans, as the case may be, to be
made, (ii) the date of the Borrowing (which shall be, (x) in the case of the Initial Term Loans, the Closing Date, and, (y) in the case
of the Incremental Term Loans, the applicable Incremental Facility Closing Date in respect of such Class) and (iii) whether the Initial
Term Loans or Incremental Term Loans, as the case may be, shall consist of ABR Loans and/or Eurodollar Loans and, if the Initial Term
Loans or Incremental Term Loans, as the case may be, are to include Eurodollar Loans, the Interest Period to be initially applicable thereto;
provided that the Notice of Borrowing for a Borrowing of Term Loans shall be revocable so long as the Borrower agrees to comply
with the applicable provisions of Section 2.11 upon any such revocation. The Administrative Agent shall promptly give each Lender written
notice of each proposed Borrowing of Initial Term Loans or Incremental Term Loans, as the case may be, of such Lender’s proportionate
share thereof and of the other matters covered by the related Notice of Borrowing.
(b) Whenever
the Borrower desires to Incur Revolving Credit Loans hereunder (other than Mandatory Borrowing or borrowings to repay Unpaid Drawings
under Letters of Credit), it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to 1:00 p.m. (New
York City time) at least three Business Days’ prior written notice of each Borrowing of Revolving Credit Loans that are to be initially
Eurodollar Loans and (ii) prior to 1:00 p.m. (New York City time) on the date of such Borrowing prior written notice of each Borrowing
of Revolving Credit Loans that are to be ABR Loans. Each such Notice of Borrowing, except as otherwise expressly provided in Section
2.10, shall be irrevocable and shall specify (i) the aggregate principal amount of the Revolving Credit Loans to be made pursuant to
such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective Borrowing shall consist of
ABR Loans and/or Eurodollar Loans, and, if Eurodollar Loans, the Interest Period to be initially applicable thereto. The Administrative
Agent shall promptly give each Lender written notice of each proposed Borrowing of Revolving Credit Loans, of such Lender’s proportionate
share thereof and of the other matters covered by the related Notice of Borrowing.
(c) Whenever
the Borrower desires to Incur Swingline Loans hereunder, the Borrower shall give the Administrative Agent written notice of each Borrowing
of Swingline Loans prior to 3:00 p.m. (New York City time) or such later time as agreed by the Swingline Lender on the date of such Borrowing.
Each such Notice of Borrowing shall specify (i) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing
and (ii) the date of Borrowing (which shall be a Business Day). The Administrative Agent shall promptly give the Swingline Lender written
notice of each proposed Borrowing of Swingline Loans and of the other matters covered by the related Notice of Borrowing.
(d) Mandatory Borrowings shall be made upon the notice specified in Section 2.1(d)(ii) with the Borrower irrevocably agreeing, by its
Incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings of Revolving Credit Loans to reimburse Unpaid Drawings under Letters of Credit shall be made upon the terms set forth
in Section 3.3 or Section 3.4(a).
(f) If the Borrower fails to specify a Type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as Eurodollar
Loans with an Interest Period of one (1) month. If the Borrower requests a Borrowing of Eurodollar Loans, in any such Notice of Borrowing,
but fails to specify an Interest Period (or fails to give a timely notice requesting a continuation of Eurodollar Loans), it will be deemed
to have specified an Interest Period of one (1) month.
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2.4
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Disbursement of Funds.
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(a) No
later than the later of 12:00 p.m. (New York City time) on the date specified in each Notice of Borrowing (including Mandatory Borrowings
and Borrowings to reimburse Unpaid Drawings under Letters of Credit) and two hours after written notice of such Borrowing is delivered
by the Administrative Agent to such Lender, each Lender will make available its pro rata portion, if any, of each Borrowing requested
to be made on such date in the manner provided below; provided that on the Closing Date (or, with respect to any Incremental Facilities,
on the relevant Incremental Facilities Closing Date), such funds may be made available at such earlier time as may be agreed among the
relevant Lenders, the Borrower and the Administrative Agent for the purpose of consummating the Transactions; provided, further,
that all Swingline Loans shall be made available to the Borrower in the full amount thereof by the Swingline Lender no later than two
hours after written notice of such Borrowing is delivered by the Administrative Agent to the Swingline Lender.
(b) (i) Each Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments
in immediately available funds to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will
(except in the case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings under Letters of Credit) make available to the Borrower
by depositing to an account designated by the Borrower to the Administrative Agent in writing, the aggregate of the amounts so made available
in Dollars. Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender
does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing,
and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make
available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent
by such Lender and the Administrative Agent has made available same to the Borrower, the Administrative Agent shall be entitled to recover
such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s
demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent in Dollars. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (i) if paid by such Lender, the Federal Funds Effective Rate, or (ii) if paid by the Borrower, the then-applicable
rate of interest, calculated in accordance with Section 2.8, for the respective Loans. If the Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower
the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.
(ii) The Swingline
Lender shall make available all amounts it is to fund to the Borrower under any Borrowing of Swingline Loans in immediately available
funds to the Borrower (as specified in the applicable Notice of Borrowing), by depositing to an account designated by the Borrower to
the Swingline Lender in writing or otherwise in such Notice of Borrowing, the aggregate of the amount so made available.
(c) Nothing in this Section 2.4, including any payment by the Borrower, shall be deemed to relieve any Lender from its obligation to
fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default
by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill
its commitments hereunder).
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2.5
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Repayment of Loans; Evidence of Debt.
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(a) The
Borrower agrees to repay to the Administrative Agent, for the benefit of the applicable Lenders, (i) on the Initial Term Loan
Maturity Date, all then outstanding Initial Term Loans, (ii) on the relevant Incremental Term Loan Maturity Date for any Class of
Incremental Term Loans, any then outstanding Incremental Term Loans of such Class, (iii) on the Revolving Credit Maturity Date, the
then outstanding Revolving Credit Loans, (iv) on the relevant maturity date for any Class of Additional/Replacement Revolving Credit
Commitments,all then outstanding Additional/Replacement Revolving Credit Loans of such Class, (v) on the relevant maturity date for
any Class of Extended Term Loans, all then outstanding Extended Term Loans of such Class, (vi) on the relevant maturity date for any
Class of Extended Revolving Credit Commitments, all then outstanding Extended Revolving Credit Loans of such Class and (vii) on the
Swingline Maturity Date, the then outstanding Swingline Loans.
(b) The Borrower shall repay to the Administrative Agent, in Dollars, for the ratable benefit of the Initial Term Loan Lenders, on
the last Business Day of each March, June, September and December, beginning December 31, 2017 (each, an “Initial Term Loan Repayment
Date”), a principal amount of the Initial Term Loans equal to (i) the product of (x) the aggregate principal amount of Initial
Term Loans outstanding immediately after the Borrowing of Initial Term Loans on the Closing Date multiplied by (y) 0.25% (with respect
to each Initial Term Loan Repayment Date prior to the Initial Term Loan Maturity Date, as such product may be reduced by, and after giving
pro forma effect to, any voluntary and mandatory prepayments made in accordance with Section 5 or as contemplated by Section 2.15) or
(ii) the aggregate principal amount of Initial Term Loans then outstanding (with respect to the Initial Term Loan Maturity Date) (each
amount, an “Initial Term Loan Repayment Amount”).
(c) In the event any Incremental Term Loans are made, such Incremental Term Loans shall mature and be repaid in amounts and on dates
as agreed between the Borrower and the relevant Lenders of such Incremental Term Loans in the applicable Incremental Agreement, subject
to the requirements set forth in Section 2.14. In the event that any Extended Term Loans are established, such Extended Term Loans shall,
subject to the requirements of Section 2.15, mature and be repaid by the Borrower in the amounts (each such amount, an “Extended
Term Loan Repayment Amount”) and on the dates (each an “Extended Repayment Date”) set forth in the applicable
Extension Agreement. In the event any Extended Revolving Credit Commitments are established, such Extended Revolving Credit Commitments
shall, subject to the requirements of Section 2.15, be terminated (and all Extended Revolving Credit Loans of the same Extension Series
repaid) on dates set forth in the applicable Extension Agreement.
(d) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower
to the appropriate lending office of such Lender resulting from each Loan made by such lending office of such Lender from time to time,
including the amounts of principal and interest payable and paid to such lending office of such Lender from time to time under this Agreement.
(e) The
Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 13.6(b)(v), and a subaccount for each
Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder, whether such
Loan is an Initial Term Loan, an Incremental Term Loan (and the relevant Class thereof), a Revolving Credit Loan, an Additional/Replacement
Revolving Credit Loan (and the relevant Class thereof), an Extended Term Loan (and the relevant Class thereof), an Extended Revolving
Credit Loan (and the relevant Class thereof), or a Swingline Loan, as applicable, the Type of each Loan made 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 Borrower
to each Lender or the Swingline Lender hereunder, (iii) the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender’s share thereof and (iv) any cancellation or retirement of Loans contemplated by Section 13.6(i).
(f)
The entries made in the Register and accounts and
subaccounts maintained pursuant to paragraphs (d) and (e) of this Section 2.5 shall, to the extent permitted by Applicable
Law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded and, in the case of
the Register, shall be conclusive absent manifest error; provided, however, that the failure of any Lender or the
Administrative Agent to maintain such account, such Register or such subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower in accordance
with the terms of this Agreement.
(g) For the
avoidance of doubt, all Loans shall be repaid, whether pursuant to this Section 2.5 or otherwise, in Dollars.
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2.6
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Conversions and Continuations.
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(a) The
Borrower shall have the option on any Business Day, subject to Section 2.11, to convert all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Term Loans, Revolving Credit Loans, Additional/Replacement Revolving Credit Loans
or Extended Revolving Credit Loans of one Type into a Borrowing or Borrowings of another Type and except as otherwise provided herein
the Borrower shall have the option on the last day of an Interest Period to continue the outstanding principal amount of any Eurodollar
Loans as Eurodollar Loans for an additional Interest Period; provided that (i) no partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount,
(ii) ABR Loans may not be converted into Eurodollar Loans if an Event of Default is in existence on the date of the conversion and the
Administrative Agent has, or the Required Lenders have, determined in its or their sole discretion not to permit such conversion, (iii)
Eurodollar Loans may not be continued as Eurodollar Loans for an additional Interest Period if an Event of Default is in existence on
the date of the proposed continuation and the Administrative Agent has, or the Required Lenders have, determined in its or their sole
discretion not to permit such continuation, and (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall be limited
in number as provided in Section 2.2. Each such conversion or continuation shall be effected by the Borrower giving the Administrative
Agent at the Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Business Days’, in
the case of a continuation of, or conversion to, Eurodollar Loans or (ii) the same Business Day in the case of a conversion into ABR
Loans), prior written notice (each a “Notice of Conversion or Continuation”) specifying the Loans to be so converted
or continued, the Type of Loans to be converted or continued, the requested date of the conversion or continuation, as the case may be
(which shall be a Business Day), the principal amount of Loans to be converted or continued, as the case may be, and if such Loans are
to be converted into or continued as Eurodollar Loans, the Interest Period to be initially applicable thereto. If the Borrower fails
to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made or continued as the same Type
of Loan, which if a Eurodollar Loan, shall have a one-month Interest Period. Any such automatic continuation shall be effective as of
the last day of the Interest Period then in effect with respect to the applicable Eurodollar Loans. If the Borrower requests a conversion
to, or continuation of, Eurodollar Loans in any such Notice of Conversion or Continuation, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one (1) month’s duration. Notwithstanding anything to the contrary herein,
a Swingline Loan may not be converted to a Eurodollar Loan. The Administrative Agent shall give each applicable Lender notice as promptly
as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b) If any Event of Default is in existence at the time of any proposed continuation of any Eurodollar Loans and the Administrative
Agent has, or the Required Lenders have, determined in its or their sole discretion not to permit such continuation, Eurodollar Loans
shall be automatically converted on the last day of the current Interest Period into ABR Loans.
2.7 Pro Rata Borrowings. Each Borrowing of Initial Term Loans under this Agreement shall be granted by the Lenders pro rata
on the basis of their then-applicable Initial Term Loan Commitments. Each Borrowing of Revolving Credit Loans under this Agreement shall
be granted by the Revolving Credit Lenders pro rata on the basis of their then-applicable Revolving Credit Commitment Percentages
with respect to the applicable Class. Each Borrowing of Incremental Term Loans under this Agreement shall be granted by the Lenders of
the relevant Class thereof pro rata on the basis of their then-applicable Incremental Term Loan Commitments for the applicable
Class. Each Borrowing of Additional/Replacement Revolving Credit Loans under this Agreement shall be granted by the Lenders of the relevant
Class thereof pro rata on the basis of their then-applicable Additional/Replacement Revolving Credit Commitments for the applicable
Class. Each Borrowing of Extended Revolving Credit Loans under this Agreement shall be granted by the Lenders of the relevant Class thereof
pro rata on the basis of their then-applicable Extended Revolving Credit Commitments for the applicable Class. It is understood
that (a) no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender,
severally and not jointly, shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to fulfill its commitments hereunder, and (b) other than as expressly provided herein with respect to a Defaulting Lender,
failure by a Lender to perform any of its obligations under any of the Credit Documents shall not release any Person from performance
of its obligations under any Credit Document.
(a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether
by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin in effect from time to time plus
the ABR in effect from time to time.
(b) The
unpaid principal amount of each Eurodollar Loan shall bear interest from the date of the Borrowing thereof until maturity thereof (whether
by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin in effect from time to time plus
the relevant Eurodollar Rate in effect from time to time.
(c) If
at any time after the occurrence of and during the continuance of an Event of Default under Section 11.1 or Section 11.5, all or a portion
of the principal amount of any Loan or any interest payable thereon or any fees or other amounts due hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest (including post-petition
interest in any proceeding under any applicable Debtor Relief Law) at a rate per annum that is (i) in the case of overdue principal,
the rate that would otherwise be applicable thereto plus 2% or (ii) in the case of overdue interest, fees or other amounts due
hereunder, to the extent permitted by Applicable Law, the rate described in Section 2.8(a) plus 2% from and including the date
of such non-payment to but excluding the date on which such amount is paid in full. All such interest shall be payable on demand.
(d) Interest on each Loan shall accrue from and including the date of any Borrowing to but excluding the date of any repayment thereof,
and shall be payable in Dollars and, except as otherwise provided below, shall be payable (i) in respect of each ABR Loan, quarterly in
arrears on the last Business Day of each March, June, September and December, (ii) in respect of each Eurodollar Loan, on the last day
of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at
three-month intervals after the first day of such Interest Period, and (iii) in respect of each Loan (except in the case of prepayments
of any ABR Revolving Credit Loans that are not made in connection with the termination or permanent reduction of the Revolving Credit
Commitments), on any prepayment date (on the amount prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity,
on demand; provided that a Loan that is repaid on the same day on which it is made shall bear interest for one day.
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(e)
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All computations of interest hereunder shall be made in accordance with Section 5.5.
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(f) The
Administrative Agent, upon determining the interest rate for any Borrowing of Eurodollar Loans shall promptly notify the Borrower and
the relevant Lenders thereof. Each such determination shall, absent clearly demonstrable error, be final and conclusive and binding on
all parties hereto.
(g) Except
as otherwise provided herein, whenever any payment hereunder or under the other Credit Documents shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment or letter of credit fee or commission, as the case may be.
2.9 Interest Periods. At the time the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect
of the making of, or conversion into, or continuation as, a Borrowing of Eurodollar Loans (in the case of the initial Interest Period
applicable thereto) on or prior to 1:00 p.m. (New York City time) on the third Business Day prior to the expiration of an Interest Period
applicable to a Borrowing of Eurodollar Loans, the Borrower shall have the right to elect, by giving the Administrative Agent written
notice, the Interest Period applicable to such Borrowing, which Interest Period shall be the period commencing on the date of such Borrowing
and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last Business Day) in the calendar
month that is one, two, three or six months thereafter (or, if agreed to by all relevant Lenders participating in the relevant Credit
Facility, twelve months thereafter or a period shorter than one month).
Notwithstanding anything to the contrary contained above:
(a) the
initial Interest Period for any Borrowing of Eurodollar Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of ABR Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;
(b) 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;
(c) if
any Interest Period relating to a Borrowing of Eurodollar Loans begins on the last Business Day of a calendar month or begins on a day
for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of the calendar month at the end of such Interest Period;
(d) in the case of Eurodollar Loans, interest shall accrue from and including the first day of an Interest Period to but excluding
the last day of such Interest Period; and
(e) the Borrower shall not be entitled to elect any Interest Period in respect of any Eurodollar Loan if such Interest Period would
extend beyond the applicable Maturity Date of such Loan.
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2.10
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Increased Costs, Illegality, Etc.
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(a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below,
any Lender, shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and
binding upon all parties hereto):
(i) on
any date for determining the Eurodollar Rate for any Interest Period that (x) deposits in the principal amounts of the Loans comprising
any Borrowing of Eurodollar Loans are not generally available in the relevant market or (y) by reason of any changes arising on or after
the Closing Date affecting the London interbank eurocurrency market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) that,
due to a Change in Law, which shall (A) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge
or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any reserve
requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any Tax (other than (1) Taxes
indemnifiable under Section 5.4, (2) Excluded Taxes or (3) Taxes described in Section 5.4(f)) on its loans, loan principal, letters of
credits, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose
on any Lender or the London interbank eurocurrency market any other condition, cost or expense affecting this Agreement or Eurodollar
Loans made by such Lender (other than Taxes), which results in the cost to such Lender of making, converting into, continuing or maintaining
Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably
deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time after the Closing Date, that the making or continuance of any Eurodollar Loan has become unlawful by compliance by
such Lender in good faith with any Applicable Law (or would conflict with any such Applicable Law not having the force of law even though
the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing
Date that materially and adversely affects the London interbank eurocurrency market;
then, and in any such event,
such Lender (or the Administrative Agent, in the case of clause (i) above) shall within a reasonable time thereafter give written
notice to the Borrower and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly
transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be
available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to
such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such
circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation given by the Borrower with
respect to Eurodollar Loans that have not yet been Incurred shall be deemed rescinded by the Borrower, (y) in the case of clause
(ii) above, the Borrower shall pay to such Lender, promptly (but no later than ten Business Days) after receipt of written demand
therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs
or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such
Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent
clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of clause (iii) above,
the Borrower shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event, within the time
period required by Applicable Law.
(b) At
any time that any Eurodollar Loan is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and in
the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then being
made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent written notice thereof on the same date that the
Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding,
upon at least three Business Days’ notice to the Administrative Agent, require the affected Lender to convert each such Eurodollar
Loan into an ABR Loan, if applicable; provided that if more than one Lender is affected at any time, then all affected Lenders
must be treated in the same manner pursuant to this Section 2.10(b).
(c) If,
any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on
such Lender’s or Letter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such
Lender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or Letter
of Credit Issuer or their respective parent could have achieved but for such Change in Law (taking into consideration such Lender’s
or Letter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy or liquidity), then from
time to time, promptly (but no later than ten Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy
to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will
compensate such Lender or Letter of Credit Issuer or their respective parent for such reduction, it being understood and agreed, however,
that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit
Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing
Date except as a result of a Change in Law. Each Lender or Letter of Credit Issuer, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower (on its own behalf)
which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the failure to give
any such notice shall not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts
pursuant to this Section 2.10(c) upon receipt of such notice.
(d) This
Section 2.10 shall not operate to provide payments that are duplicative of those required under Section 5.4.
(e) The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(f) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10
based on the occurrence of a Change in Law arising solely from (x) the Dodd- Frank Wall Street Reform and Consumer Protection Act or any
requests, rules, guidelines or directives thereunder or issued in connection therewith or (y) Basel III or any requests, rules, guidelines
or directives thereunder or issued in connection therewith, unless such Lender or Letter of Credit Issuer is generally seeking compensation
from other borrowers in the U.S. leveraged loan market with respect to its similarly affected commitments, loans and/or participations
under agreements with such borrowers having provisions similar to this Section 2.10.
2.11
Compensation. If (a) any payment of principal of a Eurodollar Loan is made by the Borrower to or for the account of a Lender
other than on the last day of the Interest Period for such Eurodollar Loan as a result of a payment or conversion pursuant to Section
2.5, 2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the maturity of the Loans pursuant to Section 11 or for any other reason,
(b) any Borrowing of Eurodollar Loans is not made as a result of a withdrawn Notice of Borrowing or failure to satisfy the conditions
of Section 6 and Section 7, (c) any ABR Loan is not converted into a Eurodollar Loan as a result of a withdrawn Notice of Conversion
or Continuation, (d) any Eurodollar Loan is not continued as a Eurodollar Loan as a result of a withdrawn Notice of Conversion or Continuation
or (e) any prepayment of principal of a Eurodollar Loan is not made as a result of a withdrawn notice of prepayment pursuant to Section
5.1 or 5.2, the Borrower shall, after receipt of a written request by such Lender (which request shall set forth in reasonable detail
the basis for requesting such amount and, absent clearly demonstrable error, the amount requested shall be final and conclusive and binding
upon all parties hereto), pay to the Administrative Agent for the account of such Lender within ten Business Days of such request any
amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result
of such payment, failure to borrow, failure to convert, failure to continue, failure to prepay, reduction or failure to reduce, including
any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund or maintain such Eurodollar Loan. The agreements in this Section 2.11 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
2.12 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section
2.10(a)(ii), 2.10(a)(iii), 2.10(c), 3.5 or 5.4 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event; provided
that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage,
with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.12
shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Section 2.10, 3.5 or 5.4.
2.13 Notice of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by
Section 2.10, 2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has knowledge (or should have had knowledge)
of the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described
in such Sections, such Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any
such amounts incurred or accruing prior to the giving of such notice to the Borrower; provided that, if the circumstance giving
rise to such claim is retroactive, then such 180 day period referred to above shall be extended to include the period of retroactive effect
thereof.
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2.14
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Incremental Facilities.
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(a) The
Borrower may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent request
(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the
“Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Credit Commitments of any Class
(each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes
of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments,” and, together with the
Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and
the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject
to Section 1.11, at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement
Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the proviso to clause
(b) below, no Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with an Acquisition
or similar Investment, no Event of Default under Section 11.1 or 11.5) shall have occurred and be continuing.
(b) Each
tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving
Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such
amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum
increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount
of(x) the Incremental Term Loans, Incremental Revolving Credit
Commitment Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of
the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional
Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum
of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving
pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be
consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement
Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance
with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior
to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred
on the first day of such Test Period, that is no greater than either (x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition
or similar Investment, no greater than the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition
or similar Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base
Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to
the Incremental Limit, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums
set forth in the first part of this 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the
date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related
amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments,
Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth
in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and (ii)
Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums
set forth in the first sentence of this 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to
the extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement Revolving
Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement
Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been
Incurred pursuant to this proviso).
(c) (i)
The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by
all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B)
shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than
the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause
(C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments,
funding discounts, original issue discounts, currency denomination and prepayment terms and premiums for the Incremental Term Loans as
determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing
Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Incremental Term Loans (other
than Incremental Term Loans (x) Incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section
2.14(b) or (z) Incurred in connection with an Acquisition (clauses (x), (y) and (z), collectively, the “MFN Exceptions”)),
is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans
shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for
the Incremental Term Loans minus 0.50% (this proviso, the “MFN Protection”); provided, further,
that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate,
for purposes of calculating the applicable increase (if any) in the Applicable Margins for the Initial Term Loans in the immediately
preceding proviso, the Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving
pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less
the then applicable Reference Rate; and (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided
that (x) except with respect to matters contemplated by clauses (B), (C) and (D) above, any differences shall be reasonably satisfactory
to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date)
and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long
as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously
Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) The
Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments being increased
(including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being
increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate
margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and additional
upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase (without
any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and security with the Revolving
Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the
Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled
amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through
fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts,
currency denomination, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and
the lenders of such commitments; provided that, during the period commencing on the Closing Date and ending on first anniversary
of the Closing Date, in the event that the Effective Yield for any Additional/Replacement Revolving Credit Loans (other than Additional/Replacement
Revolving Credit Loans under any Additional/Replacement Revolving Credit Commitments (x) incurred pursuant to clause (B) of Section 2.14(b),
(y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition or similar Investment) is
greater than the Effective Yield for the Revolving Credit Loans by more than 0.50%, then the Applicable Margins for the Revolving Credit
Loans shall be increased to the extent necessary so that the Effective Yield for the Revolving Credit Loans are equal to the Effective
Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%; (D) shall contain borrowing, repayment and termination
of Commitment procedures as determined by the Borrower and the lenders of such commitments, (E) may include provisions relating to swingline
loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for
the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of
credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of
credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case
which shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with
respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (F)
may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect
to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the Administrative
Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation
governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Financial Maintenance Covenant so
long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously
Absent Financial Maintenance Covenant for the benefit of each Credit Facility (provided, further, however, that,
if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the
benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously
Absent Financial Maintenance Covenant shall be automatically included in this Agreement only for the benefit of each revolving credit
facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each
notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency denomination
and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement
Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement
Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or
delayed), by any existing Lender (it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation
to make a portion of any Incremental Term Loan, no existing Lender with a Revolving Credit Commitment will have any obligation to provide
a portion of any Incremental Revolving Credit Commitment Increase and no existing Lender with a Revolving Credit Commitment will have
an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution,
other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional
Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to
such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment
Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an
assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely
with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline
Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional
Lender’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments
if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional
Lender.
(e) Commitments
in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments
shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender
with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant
to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Credit Documents, executed
by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative
Agent. The Incremental Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect such amendments to
this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower,
to effect the provisions of this Section (including (i) in connection with an Incremental Revolving Credit Commitment Increase, to reallocate
Revolving Credit Exposure on a pro rata basis among the relevant Revolving Credit Lenders, (ii) in connection with Classes of Incremental
Term Loans, to extend the Prepayment Premium Period for the benefit of any existing Class of Term Loans to the extent that such Class
of Incremental Term Loans shall have the benefit of such longer Prepayment Premium Period and/or (iii) to increase the Effective Yield
of the applicable Class of Term Loans to the extent necessary in order to ensure that any applicable Class of Incremental Term Loans
are “fungible” with such existing Class of Term Loans. The effectiveness of any Incremental Agreement (an “Incremental
Facility Closing Date”) and the occurrence of any Credit Event pursuant to such Incremental Agreement shall be subject to the
satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans,
Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited
by this Agreement; provided, however, that the proceeds of any Incremental Term Loans Incurred, and any Additional/Replacement
Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), shall be used in accordance with
the terms thereof.
(f) (i)
No Lender shall be obligated to provide any Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement
Revolving Credit Commitments unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity
to provide any Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments.
(ii) Upon
each increase in the Revolving Credit Commitments of any Class pursuant to this Section, each Lender with a Revolving Credit
Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to
each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each, an “Incremental Revolving
Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment
Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s
participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving pro forma effect to each such
deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in
Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment of such
Class (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate
Revolving Credit Commitments of such Class of all Lenders represented by such Lender’s Revolving Credit Commitment of such
Class. If, on the date of such increase, there are any Revolving Credit Loans of such Class outstanding, such Revolving Credit Loans
shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of
additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which
prepayment shall be accompanied by accrued interest on the Revolving Credit Loans of such Class being prepaid and any costs incurred
by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree 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 the immediately preceding sentence.
(g) This
Section 2.14 shall supersede any provisions in Section 2.7 or 13.1 to the contrary. For the avoidance of doubt, any provisions of this
Section 2.14 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide
any Incremental Commitment without such Lender’s consent
2.15
Extensions of Term Loans, Revolving Credit Loans and Revolving Credit Commitments and Additional/Replacement Revolving Credit
Loans and Additional/Replacement Revolving Credit Commitments.
(a) The Borrower may at any time and from time to time request that all or a portion of each Term Loan of any Class (an “Existing
Term Loan Class”) be converted or exchanged to extend the scheduled final maturity date(s) of any payment of principal with
respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so extended, “Extended
Term Loans”) and to provide for other terms consistent with this Section 2.15. Prior to entering into any Extension Agreement
with respect to any Extended Term Loans, the Borrower shall provide written notice to the Administrative Agent (who shall provide a copy
of such notice to each of the Lenders of the applicable Existing Term Loan Class, with such request offered equally to all such Lenders
of such Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended
Term Loans to be established, which terms shall be similar to the Term Loans of the Existing Term Loan Class from which they are to be
extended except that (w) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of
all or a portion of any principal amount of such Extended Term Loans may be delayed to later dates than the scheduled amortization of
principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled
amortization payments reflected in Section 2.5 or in the Extension Agreement or the Incremental Agreement, as the case may be, with respect
to the Existing Term Loan Class of Term Loans from which such Extended Term Loans were extended, in each case as more particularly set
forth in Section 2.15(d) below), (x)(A) the interest rates (including through fixed interest rates), interest margins, rate floors, upfront
fees, funding discounts, AHYDO Catch-Up Payments, original issue discounts and prepayment terms and premiums with respect to the Extended
Term Loans may be different than those for the Term Loans of such Existing Term Loan Class and/or (B) additional fees and/or premiums
may be payable to the Lenders providing such Extended Term Loans in addition to any of the items contemplated by the preceding clause
(A), in each case, to the extent provided in the applicable Extension Agreement, (y) subject to the provisions set forth in Sections 5.1
and 5.2, the Extended Term Loans may have optional prepayment terms (including call protection and prepayment terms and premiums) and
mandatory prepayment terms as may be agreed between the Borrower and the Lenders thereof and (z) the Extension Agreement may provide for
other covenants and terms that apply to any period after the Latest Maturity Date. No Lender shall have any obligation to agree to have
any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Term Loan Extension Request.
Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class of Term
Loans from which they were extended.
(b) The
Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, the
Extended Revolving Credit Commitments of any Class and/or any Additional/Replacement Revolving Credit Commitments (and, in each
case, including any previously extended Revolving Credit Commitments and/or Additional/Replacement Revolving Credit Commitments),
existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving
credit loans under any such facility, “Existing Revolving Credit Loans”; each Existing Revolving Credit
Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit
Class”) be converted or exchanged to extend the termination date thereof and the scheduled maturity date(s) of any payment
of principal with respect to all or a portion of any principal amount of Existing Revolving Credit Loans related to such Existing
Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended
Revolving Credit Commitments” and any related revolving credit loans, “Extended Revolving Credit
Loans”) and to provide for other terms consistent with this Section 2.15. Prior to entering into any Extension Agreement
with respect to any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who
shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments, with
such request offered equally to all Lenders of such Class) (a “Revolving Credit Extension Request”) setting forth
the proposed terms of the Extended Revolving Credit Commitments to be established thereunder, which terms shall be similar to those
applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing
Revolving Credit Commitment Class”) except that (w) all or any of the final maturity dates of such Extended Revolving
Credit Commitments may be delayed to later dates than the final maturity dates of the Existing Revolving Credit Commitments of the
Specified Existing Revolving Credit Commitment Class, (x)(A) the interest rates, interest margins, rate floors, upfront fees,
funding discounts, AHYDO Catch-Up Payments, original issue discounts and prepayment terms and premiums with respect to the Extended
Revolving Credit Commitments may be different than those for the Existing Revolving Credit Commitments of the Specified Existing
Revolving Credit Commitment Class and/or (B) additional fees and/or premiums may be payable to the Lenders providing such Extended
Revolving Credit Commitments in addition to or in lieu of any of the items contemplated by the preceding clause (A) and (y)(1) the
undrawn revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be different than those
for the Specified Existing Revolving Credit Commitment Class and (2) the Extension Agreement may provide for other covenants and
terms that apply to any period after the Latest Maturity Date; provided that, notwithstanding anything to the contrary in
this Section 2.15, Section 5.2(e) or otherwise, (I) the borrowing and repayment (other than in connection with a permanent repayment
and termination of commitments) of the Extended Revolving Credit Loans under any Extended Revolving Credit Commitments shall be made
on a pro rata basis with any borrowings and repayments of the Existing Revolving Credit Loans of the Specified Existing
Revolving Credit Commitment Class (the mechanics for which may be implemented through the applicable Extension Agreement and may
include technical changes related to the borrowing and repayment procedures of the Specified Existing Revolving Credit Commitment
Class), (II) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be
governed by the assignment and participation provisions set forth in Section 13.6 and (III) subject to the applicable limitations
set forth in Section 4.2 and Section 5.2(e)(ii), permanent repayments of Extended Revolving Credit Loans (and corresponding
permanent reduction in the related Extended Revolving Credit Commitments) shall be permitted as may be agreed between the Borrower
and the Lenders thereof. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit
Commitments of any Existing Revolving Credit Class converted or exchanged into Extended Revolving Credit Loans or Extended Revolving
Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall
constitute a separate Class of revolving credit commitments from Existing Revolving Credit Commitments of the Specified Existing
Revolving Credit Commitment Class and from any other Existing Revolving Credit Commitments (together with any other Extended
Revolving Credit Commitments so established on such date).
(c) The
Borrower shall provide the applicable Extension Request to the Administrative Agent at least five (5) Business Days (or such shorter
period as the Administrative Agent may determine in its reasonable discretion) prior to the date on which Lenders under the Existing
Class are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the
Administrative Agent, in each case acting reasonably, to accomplish the purpose of this Section 2.15. The Borrower may, at its
election, specify as a condition to consummating any Extension Agreement that a minimum amount (to be determined and specified in
the relevant Extension Request in the Borrower’s sole discretion and as may be waived by the Borrower) of Term Loans and/or
Revolving Credit Commitments (as applicable) of any or all applicable Classes be tendered. Any Lender (an “Extending
Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments or Additional/Replacement
Revolving Credit Commitments (or any earlier Extended Revolving Credit Commitments) of an Existing Class subject to such Extension
Request converted or exchanged into Extended Loans/Commitments shall notify the Administrative Agent (an “Extension
Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit
Commitments and/or Additional/Replacement Revolving Credit Commitments (and/or any earlier Extended Revolving Credit Commitments)
which it has elected to convert or exchange into Extended Loans/Commitments (subject to any minimum denomination requirements
imposed by the Administrative Agent). In the event that the aggregate amount of Term Loans, Revolving Credit Commitments and
Additional/Replacement Revolving Credit Commitments (and any earlier extended Extended Revolving Credit Commitments) subject to
Extension Elections exceeds the amount of Extended Loans/Commitments requested pursuant to the Extension Request, Term Loans,
Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments or earlier extended Extended Revolving Credit
Commitments, as applicable, subject to Extension Elections shall be converted to or exchanged to Extended Loans/Commitments on a pro
rata basis (subject to such rounding requirements as may be established by the Administrative Agent) based on the amount of Term
Loans, Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments and earlier extended Extended Revolving
Credit Commitments included in each such Extension Election or as may be otherwise agreed to in the applicable Extension Agreement.
Notwithstanding the conversion of any Existing Revolving Credit Commitment into an Extended Revolving Credit Commitment, unless
expressly agreed by the holders of each affected Existing Revolving Credit Commitment of the Specified Existing Revolving Credit
Commitment Class, such Extended Revolving Credit Commitment shall not be treated more favorably than all Existing Revolving Credit
Commitments of the Specified Existing Revolving Credit Commitment Class for purposes of the obligations of a Revolving Credit Lender
in respect of Swingline Loans under Section 2.1(d) and Letters of Credit under Section 3, except that the applicable Extension
Amendment may provide that the Swingline Maturity Date and/or the last day for issuing Letters of Credit may be extended and the
related obligations to make Swingline Loans and issue Letters of Credit may be continued (pursuant to mechanics to be specified in
the applicable Extension Amendment) so long as the Swingline Lender and/or each Letter of Credit Issuer have consented to such
extensions (it being understood that no consent of any other Lender shall be required in connection with any such extension).
(d) Extended
Loans/Commitments shall be established pursuant to an amendment (an “Extension Agreement”) to this Agreement (which,
except to the extent expressly contemplated by the penultimate sentence of this Section 2.15(d) and notwithstanding anything to the contrary
set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended
Loans/Commitments established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. In addition
to any terms and changes required or permitted by Section 2.15(b), each Extension Agreement in respect of Extended Term Loans shall amend
the scheduled amortization payments pursuant to Section 2.5 or the applicable Incremental Agreement or Extension Agreement with respect
to the Existing Class of Term Loans from which the Extended Term Loans were exchanged to reduce each scheduled Repayment Amount for the
Existing Class in the same proportion as the amount of Term Loans of the Existing Class is to be reduced pursuant to such Extension Agreement
(it being understood that the amount of any Repayment Amount payable with respect to any individual Term Loan of such Existing Class
that is not an Extended Term Loan shall not be reduced as a result thereof). In connection with any Extension Agreement, the Borrower
shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent and addressed to the Administrative Agent and the
applicable Extending Lenders (i) as to the enforceability of such Extension Agreement, this Agreement as amended thereby, and such of
the other Credit Documents (if any) as may be amended thereby (in the case of such other Credit Documents as contemplated by the immediately
preceding sentence) and covering customary matters and (ii) to the effect that such Extension Agreement, including the Extended Loans/Commitments
provided for therein, does not breach or result in a default under the provisions of Section 13.1 of this Agreement.
(e) Notwithstanding
anything to the contrary contained in this Agreement, (A) on any date on which any Existing Term Loan Class or Class of Existing
Revolving Credit Commitments is converted or exchanged to extend the related scheduled maturity date(s) in accordance with paragraph
(a) above (an “Extension Date”), (I) in the case of the existing Term Loans of each Extending Lender, the
aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount
of Extended Term Loans so converted or exchanged by such Lender on such date, and the Extended Term Loans shall be established as a
separate Class of Term Loans (together with any other Extended Term Loans so established on such date), and (II) in the case of the
Existing Revolving Credit Commitments of each Extending Lender under any Specified Existing Revolving Credit Commitment Class, the
aggregate principal amount of such Existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate
principal amount of Extended Revolving Credit Commitments so converted or exchanged by such Lender on such date (or by any greater
amount as may be agreed by the Borrower and such Lender), and such Extended Revolving Credit Commitments shall be established as a
separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitment Class and from any other
Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)
and (B) if, on any Extension Date, any Existing Revolving Credit Loans of any Extending Lender are outstanding under the Specified
Existing Revolving Credit Commitment Class, such Existing Revolving Credit Loans (and any related participations) shall be deemed to
be converted or exchanged to Extended Revolving Credit Loans (and related participations) of the applicable Class in the same
proportion as such Extending Lender’s Specified Existing Revolving Credit Commitments to Extended Revolving Credit Commitments
of such Class.
(f) In the event that the Administrative Agent determines in its sole discretion that the allocation of Extended Term Loans of a given
Extension Series or the Extended Revolving Credit Commitments of a given Extension Series, in each case to a given Lender was incorrectly
determined as a result of manifest administrative error in the receipt and processing of an Extension Election timely submitted by such
Lender in accordance with the procedures set forth in the applicable Extension Agreement, then the Administrative Agent, the Borrower
and such affected Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter
into an amendment to this Agreement and the other Credit Documents (each, a “Corrective Extension Agreement”) within
15 days following the effective date of such Extension Agreement, as the case may be, which Corrective Extension Agreement shall (i) provide
for the conversion or exchange and extension of Term Loans under the Existing Term Loan Class or Existing Revolving Credit Commitments
(and related Revolving Credit Exposure), as the case may be, in such amount as is required to cause such Lender to hold Extended Term
Loans or Extended Revolving Credit Commitments (and related revolving credit exposure) of the applicable Extension Series into which such
other Term Loans or commitments were initially converted or exchanged, as the case may be, in the amount such Lender would have held had
such administrative error not occurred and had such Lender received the minimum allocation of the applicable Loans or Commitments to which
it was entitled under the terms of such Extension Agreement, in the absence of such error, (ii) be subject to the satisfaction of such
conditions as the Administrative Agent, the Borrower and such Lender may agree (including conditions of the type required to be satisfied
for the effectiveness of an Extension Agreement described in Section 2.15(d)), and (iii) effect such other amendments of the type (with
appropriate reference and nomenclature changes) described in the penultimate sentence of Section 2.15(d).
(g) No conversion or exchange of Loans or Commitments pursuant to any Extension Agreement in accordance with this Section 2.15 shall
constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(h) This
Section 2.15 shall supersede any provisions in Section 2.4 or Section 13.1 to the contrary. For the avoidance of doubt, any of the provisions
of this Section 2.15 may be amended with the consent of the Required Lenders; provided that no such amendment shall require any
Lender to provide any Extended Loans/Commitments without such Lender’s consent.
2.16
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 the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b)
the Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all
Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any
amendment or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring the consent of
all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent
of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such
Lender;
(c) if
any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any
part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject
to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender)
among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided
that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of
such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation
nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the
Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender
or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated
portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be
so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the
Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure
(after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such
Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause
(i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Letter of Credit Exposure is outstanding,
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to the
requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to
Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting
Lender’s Letter of Credit Exposure is Cash Collateralized, (iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders
is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders pursuant to Section 4.1(c)
shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower
shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting
Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is
reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated
pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit
Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Letter of
Credit Exposure shall be payable to the Letter of Credit Issuer until such Letter of Credit Exposure is Cash Collateralized and/or
reallocated;
(d)
(i) the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit
to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit
Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully
covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance
with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and
(ii) the Swingline
Lender will be not required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would
result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non- Defaulting
Lenders or a combination thereof in accordance with the requirements of Section 2.16(c) above.
(e) If
the Borrower, the Administrative Agent, the Swingline Lender and each applicable Letter of Credit Issuer agree in writing in their
discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent
will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set
forth therein, such Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Credit Loans of the
other Revolving Credit Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause such
outstanding Revolving Credit Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro
rata basis by the Revolving Credit Lenders (including such Lender) in accordance with their applicable percentages, whereupon
such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be
promptly returned to the Borrower and any Letter of Credit Exposure and Swingline Exposure of such Lender reallocated pursuant to
the requirements of Section 2.16(c) shall be reallocated back to such Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting
Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such
Lender’s having been a Defaulting Lender; and
(f)
Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise, and including any amounts made available to
the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), shall be applied at such time or times as may be determined
by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative
Agent hereunder; second, in the case of a Revolving Credit Lender, to the payment on a pro rata basis of any amounts owing
by that Defaulting Lender to the Letter of Credit Issuer and the Swingline Lender hereunder; third, as the Borrower may request
(so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to
fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by
the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released pro rata in order
to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y)
Cash Collateralize, in accordance with Section 3.8, the Letter of Credit Issuer’s potential future fronting exposure with respect
to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; fifth, to the payment of any amounts
owing to the Lenders, the Letter of Credit Issuer or the Swingline Lender as a result of any judgment of a court of competent jurisdiction
obtained by any Lender, such Letter of Credit Issuer or such Swingline Lender against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the
payment of any amounts owing to the Borrower or any of its Restricted Subsidiaries pursuant to any Secured Hedging Agreement with such
Defaulting Lender as certified by an Authorized Officer of the Borrower to the Administrative Agent (with a copy to the Defaulting Lender)
prior to such date of payment; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to
the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender
as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender
or as otherwise directed by a court of competent jurisdiction; provided that, if such payment is a payment of the principal amount
of any Loans or a payment of any Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings
owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section
2.16(f). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed
by a Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall be deemed paid to and redirected by that Defaulting Lender,
and each Lender irrevocably consents hereto.
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2.17
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Term Loan Exchange Notes.
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(a) The
Borrower may by written notice to the Administrative Agent elect to offer (each a “Permitted Debt Exchange
Offer”) to issue to Lenders holding Term Loans under this Agreement first priority senior secured notes and/or junior lien
secured notes and/or unsecured notes (the “Term Loan Exchange Notes”) in exchange for the Term Loans (each such
exchange, a “Permitted Debt Exchange”); provided that such Term Loan Exchange Notes may not be in an
aggregate principal amount greater than the Term Loans being exchanged plus unpaid accrued interest, fees and premiums (including
tender premiums) (if any) thereon, defeasance costs, underwriting discounts and fees, commissions and expenses (including OID,
closing payments, upfront fees or similar fees) in connection with the issuance of the Term Loan Exchange Notes. Each such notice
shall specify the date (each, a “Term Loan Exchange Effective Date”) on which the Borrower proposes that the Term
Loan Exchange Notes shall be issued, which shall be a date not less than fifteen days after the date on which such notice is
delivered to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent); provided that:
(w) the Weighted Average Life to Maturity of such Term Loan Exchange Notes shall not be shorter than the then remaining Weighted
Average Life to Maturity of the Term Loans being exchanged (it being understood that acceleration or mandatory repayment,
prepayment, redemption or repurchase of such Term Loan Exchange Notes upon the occurrence of an event of default, a change in
control, an event of loss or an asset disposition shall not be deemed to constitute a change in the stated final maturity thereof);
(x) if secured, such Term Loan Exchange Notes shall rank equal to or junior in right of payment and of security with the Loans and
Commitments being exchanged hereunder; (y) all other
terms and conditions (other than interest rates (including through fixed interest rates), interest rate margins, rate floors, fees,
maturity, funding discounts, original issue discounts and redemption or prepayment terms and premiums) applicable to such Term Loan
Exchange Notes shall reflect market terms and conditions at the time of incurrence or issuance (as determined in good faith by the
Borrower); provided that the Term Loan Exchange Notes may have the benefit of any Previously Absent Financial Maintenance
Covenant if the Administrative Agent has been given prompt written notice thereof and this Agreement shall have been amended to
include such Previously Absent Financial Maintenance Covenant; and (z) the obligations in respect of the Term Loan Exchange Notes
(A) shall not be secured by Liens on any asset of Holdings, the Borrower and the Restricted Subsidiaries other than assets
constituting Collateral, (B) if such Term Loan Exchange Notes are secured, all security therefor shall be granted pursuant to
documentation that is not more restrictive than the Security Documents in any material respect taken as a whole (as determined by
the Borrower) and the representative for such Additional Term Notes shall enter into a Customary Intercreditor Agreement (it being
understood that junior Liens are not required to be equal to other junior Liens, and that Indebtedness secured by junior Liens may
be secured by Liens that are equal to, or junior in priority to, other Liens that are junior to the Liens securing the Obligations),
or (C) shall not be incurred or Guaranteed by any Restricted Subsidiary unless such Restricted Subsidiary is a Credit Party which
shall have previously or substantially concurrently Guaranteed or borrowed such Term Loans being exchanged.
(b) The
Borrower shall offer to issue Term Loan Exchange Notes in exchange for the Class of Term Loans to all Lenders holding such Class of Term
Loans (other than any Lender that, if requested by the Borrower, is unable to certify that it is (i) a “qualified institutional
buyer” (as defined in Rule 144A under the Securities Act), (ii) an institutional “accredited investor” (as defined
in Rule 501 under the Securities Act) or (iii) not a “U.S. person” (as defined in Rule 902 under the Securities Act) on a
pro rata basis, and such Lenders may choose to accept or decline to receive such Term Loan Exchange Notes in their sole discretion. Any
such Term Loans exchanged for Term Loan Exchange Notes shall be automatically and immediately, without further action by any Person,
cancelled on the Term Loan Exchange Effective Date for all purposes of this Agreement (and, if requested by the Administrative Agent,
any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other form
as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest
in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), and accrued and
unpaid interest on such Term Loans shall be paid to the exchanging Lenders on the Term Loan Exchange Effective Date, or, if agreed to
by the Borrower and the Administrative Agent, the next scheduled Interest Payment Date with respect to such Term Loans (with such interest
accruing until the date of consummation of such Permitted Debt Exchange).
(c) If
the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of a given Class tendered by Lenders in respect
of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds
the principal amount thereof of the applicable Class actually held by it) shall exceed the maximum aggregate principal amount of Term
Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange
Term Loans under the relevant Class tendered by such Lenders ratably up to such maximum based on the respective principal amounts so
tendered, or, if such Permitted Debt Exchange Offer shall have been made with respect to multiple Classes without specifying a maximum
aggregate principal amount offered to be exchanged for each Class, and the aggregate principal amount of all Term Loans (calculated on
the face amount thereof) of all Classes tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender
being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof actually held by it) shall exceed
the maximum aggregate principal amount of Term Loans of all relevant Classes offered to be exchanged by the Borrower pursuant to such
Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans across all Classes subject to such Permitted Debt Exchange
Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered.
(d) With
respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.17, unless waived by the Borrower, such
Permitted Debt Exchange Offer shall be made for not less than $50,000,000 in aggregate principal amount of Term Loans; provided
that subject to the foregoing the Borrower may at its election specify (A) as a condition (a “Minimum Tender
Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the
relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable Classes be
tendered and/or (B) as a condition (a “Maximum Tender Condition”) to consummating any such Permitted Debt
Exchange that no more than a maximum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the
Borrower’s discretion) of Term Loans of any or all applicable Classes will be accepted for exchange. The Administrative Agent
and the Lenders hereby acknowledge and agree that this Section 2.17 shall supersede any provisions of Section 2.5, Section V and
Section 13.1 to the contrary, waive the requirements of any other provision of this Agreement or any other Credit Document that may
otherwise prohibit the incurrence of any Indebtedness expressly provided for by this Section 2.17 and hereby agree not to assert any
Default or Event of Default in connection with the implementation of any such Permitted Debt Exchange or any other transaction
contemplated by this Section 2.17.
(e) In connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least five Business Days’
(or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative
Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this
Section 2.17; provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders
are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five Business Days following
the date on which the Permitted Debt Exchange Offer is made. The Borrower shall provide the final results of such Permitted Debt Exchange
to the Administrative Agent no later than one Business Day prior to the proposed date of effectiveness for such Permitted Debt Exchange
and the Administrative Agent shall be entitled to conclusively rely on such results.
(f) The
Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection
with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent nor any Lender assumes any
responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted Debt Exchange and (y)
each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to
which such Lender may be subject under the Exchange Act.
SECTION 3. Letters of Credit.
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3.1
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Issuance of Letters of Credit.
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(a)
Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Closing Date
and prior to the date that is 15 days prior to the Revolving Credit Maturity Date, each Letter of Credit Issuer agrees to issue (or cause
its Affiliates or other financial institution with which the Letter of Credit Issuer shall have entered into an agreement regarding the
issuance of letters of credit hereunder, to issue on its behalf), upon the request of and for the account of the Borrower or any Restricted
Subsidiary, letters of credit (each, a “Letter of Credit”) in such form as may be approved by such Letter of Credit
Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and be jointly and severally liable, with
respect to each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding
the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Obligations at
such time, would exceed the Letter of Credit Sub-Commitment then in effect, (ii) no Letter of Credit shall be issued the Stated
Amount of which, when added to the Letter of Credit Obligations and the Revolving Credit Loans and Swingline Loans outstanding at
such time, would exceed the Total Revolving Credit Commitment then in effect, (iii) no Letter of Credit shall be required to be
issued by a Letter of Credit Issuer the Stated Amount of which, when added to such Letter of Credit Issuer’s Revolving Credit
Exposure (whether held directly or through its Affiliates), would exceed the Revolving Credit Commitment of such Letter of Credit
Issuer (or its Affiliates), (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one
year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of
Credit Issuer or as provided under Section 3.2(e), and (y) the Letter of Credit Maturity Date, (v) each Letter of Credit shall be
denominated in Dollars, (vi) no Letter of Credit shall be issued if it would be illegal under any Applicable Law for the beneficiary
of the Letter of Credit to have a Letter of Credit issued in its favor, (vii) no Letter of Credit shall be issued after the
applicable Letter of Credit Issuer has received a written notice from the Borrower or the Administrative Agent stating that a
Default or an Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a
written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of
such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no
longer continuing, (viii) no Letter of Credit shall be issued by the applicable Letter of Credit Issuer if such issuance would cause
the Letter of Credit Obligations of such Letter of Credit Issuer to exceed the Letter of Credit Sub-Commitment Obligation of such
Letter of Credit Issuer, (ix) UBS AG, Stamford Branch shall only be required to issue standby letters of credit and (x) in no event
shall SunTrust Bank be required to issue commercial or trade letters of credit.
(c) In connection with the establishment of any Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments
and subject to the availability of unused Commitments with respect to such newly established Class and the satisfaction of the Conditions
set forth in Section 7, the Borrower may, with the written consent of the Letter of Credit Issuer, designate any outstanding Letter of
Credit to be a Letter of Credit issued pursuant to such Class of Extended Revolving Credit Commitments or Additional/Replacement Revolving
Credit Commitments, as applicable. Upon such designation such Letter of Credit shall no longer be deemed to be issued and outstanding
under such prior Class and shall instead be deemed to be issued and outstanding under such newly established Class of Extended Revolving
Credit Commitments or Additional/Replacement Revolving Credit Commitments, as applicable.
(d) On the Closing Date, without further action by any party hereto (including the delivery of a Letter of Credit Request or any consent
of, or confirmation by or to, the Administrative Agent), subject to the terms of this Section 3, (i) each Existing Letter of Credit set
forth on Schedule 1.1(b) hereto issued by a Letter of Credit Issuer hereunder shall become a Letter of Credit outstanding under this Agreement,
shall be deemed to be a Letter of Credit issued under this Agreement and shall be subject to the terms and conditions hereof (including
Section 4.1) as if each such Letter of Credit was issued by the applicable Letter of Credit Issuer pursuant to this Agreement and (ii)
each Letter of Credit Issuer that has issued an Existing Letter of Credit shall be deemed to have granted each Letter of Credit Participant
in respect thereof and each Letter of Credit Participant in respect thereof shall be deemed to have acquired from such Letter of Credit
Issuer, on the terms and conditions of Section 3.3 hereof, for such Letter of Credit Participant’s own account and risk, an undivided
participation interest in such Letter of Credit Issuer’s obligations and rights under each such Existing Letter of Credit equal
to such Letter of Credit Participant’s Revolving Credit Commitment Percentage, as applicable, of (A) the outstanding amount available
to be drawn under such Existing Letter of Credit and (B) the aggregate amount of any outstanding reimbursement obligations in respect
thereof.
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3.2
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Letter of Credit Requests.
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(a) Whenever
the Borrower (or the Borrower on behalf of any Restricted Subsidiary) desires that a Letter of Credit be issued (or amended, renewed
or extended), it shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request by no later than 1:00
p.m. (New York City time) (i) at least three (or such lesser number as may be agreed upon by the Administrative Agent and the Letter
of Credit Issuer) Business Days prior to the proposed date of issuance, amendment, renewal or extension for any Letter of Credit for
the account of the Borrower or any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall have also signed the applicable
Letter of Credit Request), (ii) at least five (or such lesser number as may be agreed upon by the Administrative Agent and the Letter
of Credit Issuer) Business Days prior to the proposed date of issuance, amendment, renewal or extension for any Letter of Credit for
the account of any Restricted Subsidiary that is a Domestic Subsidiary that is not a Credit Party and (iii) at least ten (or such lesser
number as may be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days prior to the date of issuance,
amendment, renewal or extension for any Letter of Credit for the account of any Foreign Restricted Subsidiary. Each Letter of Credit
Request shall be executed by the Borrower and sent by facsimile, by United States mail, by overnight courier, by electronic transmission
using the system provided by the Letter of Credit Issuer, by personal delivery or by any other means acceptable to the Letter of Credit
Issuer.
(b) In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
Stated Amount thereof; (C) the expiry date thereof (which shall be not later than the earlier of (x) one year after the date of
issuance thereof, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of Credit Issuer or as provided
under Section 3.2(e), and (y) the Letter of Credit Maturity Date); (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder and (G) such other matters as the Letter of Credit Issuer may
reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request
shall specify: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit Issuer may reasonably require.
(c) Promptly
after receipt of any Letter of Credit Request, the Letter of Credit Issuer will confirm with the Administrative Agent in writing that
the Administrative Agent has received a copy of such Letter of Credit Request from the Borrower and, if not, the Letter of Credit Issuer
will provide the Administrative Agent with a copy thereof. Unless the Letter of Credit Issuer has received written notice from the Required
Revolving Credit Lenders, the Administrative Agent, the Borrower or any other Credit Party at least two Business Days prior to the requested
date of issuance or amendment of the Letter of Credit, that one or more applicable conditions contained in Section 7 shall not then be
satisfied, then, subject to the terms and conditions hereof, the Letter of Credit Issuer shall, on the requested date, issue a Letter
of Credit for the account of the Borrower (or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with the terms hereof.
(d) The
making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower that the Letter of Credit
may be issued in accordance with, and will not violate the requirements of, Section 3.1(b).
(e) If the Borrower so requests in any applicable Letter of Credit Request, the Letter of Credit Issuer may agree to issue a Letter
of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that
any such Auto-Extension Letter of Credit must permit the Letter of Credit Issuer to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than
a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter
of Credit is issued. Unless otherwise directed by the Letter of Credit Issuer, the Borrower shall not be required to make a specific request
to the Letter of Credit Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed
to have authorized (but may not require) the Letter of Credit Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Maturity Date; provided, however, that the Letter of Credit Issuer shall
not permit any such extension if (A) the Letter of Credit Issuer has determined that it would not be permitted, or would have no obligation,
at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section
3.1(b) or otherwise), or (B) it has received written notice on or before the day that is seven Business Days before the Non-Extension
Notice Date (1) from the Administrative Agent that the Required Revolving Credit Lenders have elected not to permit such extension or
(2) from the Administrative Agent, the Required Revolving Credit Lenders or the Borrower that one or more of the applicable conditions
specified in Section 7 are not then satisfied, and in each such case directing the Letter of Credit Issuer not to permit such extension.
(f) Promptly
after its delivery of any Letter of Credit or any amendment, renewal or extension to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the Letter of Credit Issuer will notify the Administrative Agent of such delivery, amendment,
renewal or extension and will also deliver to the Borrower a true and complete copy of such Letter of Credit or amendment, renewal or
extension. On the last Business Day of each March, June, September and December, the Letter of Credit Issuer shall provide the Administrative
Agent a list of all Letters of Credit issued by it that are outstanding at such time.
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3.3
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Letter of Credit Participations.
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(a) Immediately
upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold
and transferred to each other Revolving Credit Lender (each such Revolving Credit Lender, in its capacity under this Section 3.3(a),
a “Letter of Credit Participant”), and each such Letter of Credit Participant shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest
and participation (each, a “Letter of Credit Participation”), to the extent of such Letter of Credit
Participant’s Revolving Credit Commitment Percentage, in such Letter of Credit, each substitute letter of credit, each drawing
made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the
Letter of Credit Participants as provided in Section 4.1(c) and the Letter of Credit Participants shall have no right to receive any
portion of any fees paid to the Administrative Agent for the account of the Letter of Credit Issuer in respect of each Letter of
Credit issued hereunder).
(b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer shall have no obligation relative to the
Letter of Credit Participants other than to confirm to the Administrative Agent that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken
or omitted in the absence of gross negligence or willful misconduct, as determined in a final non-appealable judgment of a court of competent
jurisdiction, shall not create for the Letter of Credit Issuer any resulting liability.
(c) Whenever
the Administrative Agent receives a payment in respect of an unpaid reimbursement obligation for the account of the Letter of Credit
Issuer from the Borrower, the Administrative Agent shall promptly pay to each Letter of Credit Participant that has paid its
Revolving Credit Commitment Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount
equal to such Letter of Credit Participant’s share (based upon the proportionate aggregate amount originally funded or
deposited by such Letter of Credit Participant to the aggregate amount funded or deposited by all Letter of Credit Participants) of
the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective Letter of
Credit Participations; provided that the amount paid to any Letter of Credit Participant shall not exceed the amount funded
or deposited by such Letter of Credit Participant.
(d) The obligations of the Letter of Credit Participants to purchase Letter of Credit Participations from the Letter of Credit Issuer
and make payments to the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be
irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be
made in accordance with the terms and conditions of this Agreement under all circumstances, including under any of the following circumstances:
(i) any
lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the
existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom any such beneficiary or transferee may be acting), the Administrative
Agent, the Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated hereby or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary
named in any such Letter of Credit);
(iii) any
draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the
surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents;
(v) the occurrence of any Default or Event of Default; or
(vi) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Credit Party or Restricted Subsidiary.
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3.4
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Agreement to Repay Letter of Credit Drawings.
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(a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer in Dollars with respect to any drawing under any Letter of Credit, by
making payment, whether with its own funds, with the proceeds of Revolving Credit Loans or any other source, to the Administrative Agent
for the account of the Letter of Credit Issuer in immediately available funds, for any payment or disbursement made by the Letter of
Credit Issuer under any Letter of Credit issued by it (with respect to each such amount so paid under a Letter of Credit until reimbursed,
a “Unpaid Drawing” (i) within one Business Day of the date of such payment or disbursement, if the Letter of Credit
Issuer provides notice to the Borrower of such payment or disbursement prior to 11:00 a.m. (New York City time) on such next succeeding
Business Day after the date of such payment or disbursement or (ii) if such notice is received after such time, on the next Business
Day following the date of receipt of such notice (such required date for reimbursement under clause (i) or (ii), as applicable (the “Required
Reimbursement Date”), with interest on the amount so paid or disbursed by such Letter of Credit Issuer, from and including
the date of such payment or disbursement to but excluding the Required Reimbursement Date, at the per annum rate for each day equal to
the rate described in Section 2.8(a); provided that, notwithstanding anything contained in this Agreement to the contrary, with
respect to any Letter of Credit, (i) unless the Borrower shall have notified the Administrative Agent and the Letter of Credit Issuer
prior to 11:00 a.m. (New York City time) on the Required Reimbursement Date that the Borrower intends to reimburse the Letter of Credit
Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Borrower shall be deemed to have
given a Notice of Borrowing requesting that the Lenders with Revolving Credit Commitments make Revolving Credit Loans (which shall be
ABR Loans) on the Required Reimbursement Date in an amount equal to the amount of such drawing, and (ii) the Administrative Agent shall
promptly notify each Letter of Credit Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof,
and each Letter of Credit Participant shall be irrevocably obligated to make a Revolving Credit Loan to the Borrower in the manner deemed
to have been requested in the amount of its Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New
York City time) on such Required Reimbursement Date by making the amount of such Revolving Credit Loan available to the Administrative
Agent. Such Revolving Credit Loans made in respect of such Unpaid Drawing on such Required Reimbursement Date shall be made without regard
to the Minimum Borrowing Amount and without regard to the satisfaction of the conditions set forth in Section 7. The Administrative Agent
shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the Letter of Credit Issuer for the related
Unpaid Drawing. If and to the extent such Letter of Credit Participant shall not have so made its Revolving Credit Commitment Percentage
of the amount of such payment available to the Administrative Agent for the account of the Letter of Credit Issuer, or that in the sole
judgment of the Letter of Credit Issuer, such Revolving Credit Loan cannot for any reason be made on the date otherwise required above
(including as a result of the commencement of a proceeding under any Debtor Relief Law in respect of the Borrower), each Letter of Credit
Participant hereby agrees that its participation in such Unpaid Drawing shall remain outstanding in lieu of funding its portion of such
Revolving Credit Loan and such Letter of Credit Participant agrees to pay to the Administrative Agent for the account of the Letter of
Credit Issuer, forthwith on demand, such amount, together with interest thereon for each day from such date until the date such amount
is paid to the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum equal to the Overnight Rate from
time to time then in effect, plus any administrative, processing or similar fees customarily charged by the Letter of Credit Issuer
in connection with the foregoing. The failure of any Letter of Credit Participant to make available to the Administrative Agent for the
account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of Credit shall not
relieve any other Letter of Credit Participant of its obligation hereunder to make available to the Administrative Agent for the account
of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit on the date required,
as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant
to make available to the Administrative Agent such other Letter of Credit Participant’s Revolving Credit Commitment Percentage
of any such payment.
(b) The
obligations of the Borrower under this Section 3.4 to reimburse the Letter of Credit Issuer with respect to Unpaid Drawings (including,
in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment that the Borrower or any other Person may have or have had against the Letter of Credit Issuer, the
Administrative Agent or any Lender (including in its capacity as a Letter of Credit Participant), including any defense based upon the
failure of any drawing under a Letter of Credit (each, a “Drawing”) to conform to the terms of such Letter of Credit
or any non-application or misapplication by the beneficiary of the proceeds of such Drawing; provided that the Borrower shall
not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter
of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter
of Credit Issuer as determined in the final, non-appealable judgment of a court of competent jurisdiction.
3.5 Increased
Costs. If a Change in Law shall either (a) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against letters of credit issued by the Letter of Credit Issuer, or any Letter of Credit
Participant’s Letter of Credit Participation therein or (b) impose on the Letter of Credit Issuer or any Letter of Credit
Participant any other conditions affecting its obligations under this Agreement in respect of Letters of Credit or Letter of Credit
Participations therein or any Letter of Credit or such Letter of Credit Participant’s Letter of Credit Participation therein,
and the result of any of the foregoing is to increase the cost to the Letter of Credit Issuer or such Letter of Credit Participant
of issuing, maintaining or participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by the
Letter of Credit Issuer or such Letter of Credit Participant hereunder (other than any such increase or reduction attributable to
(i) Taxes indemnifiable under Section 5.4, (ii) Excluded Taxes
or (iii) Taxes described in Section 5.4(f)) in respect of Letters of Credit or Letter of Credit Participations therein, then,
promptly after receipt of written demand to the Borrower by the Letter of Credit Issuer or such Letter of Credit Participant, as the
case may be (a copy of which notice shall be sent by the Letter of Credit Issuer or such Letter of Credit Participant to the
Administrative Agent), the Borrower shall pay to the Letter of Credit Issuer or such Letter of Credit Participant such additional
amount or amounts as will compensate the Letter of Credit Issuer or such Letter of Credit Participant for such increased cost or
reduction, it being understood and agreed, however, that the Letter of Credit Issuer or a Letter of Credit Participant shall not be
entitled to such compensation as a result of such Person’s compliance with, or pursuant to any request or directive to comply
with, any such Applicable Law that would have existed in the event that a Change in Law had not occurred. A certificate submitted to
the Borrower by the Letter of Credit Issuer or a Letter of Credit Participant, as the case may be (a copy of which certificate shall
be sent by the Letter of Credit Issuer or such Letter of Credit Participant to the Administrative Agent), setting forth in
reasonable detail the basis for the determination of such additional amount or amounts necessary to compensate the Letter of Credit
Issuer or such Letter of Credit Participant as aforesaid shall be conclusive and binding on the Borrower absent clearly demonstrable
error. Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section
3.5 based on the occurrence of a Change in Law arising solely from (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act
or any requests, rules, guidelines or directives thereunder or issued in connection therewith or (y) Basel III or any requests,
rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Letter of Credit Issuer is
generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to its similarly affected
commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 3.5.
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3.6
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New or Successor Letter of Credit Issuer.
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(a) Any
Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 30 days’ prior written notice to the Administrative
Agent, the applicable Revolving Credit Lenders and the Borrower. Subject to the terms of the following sentence, the Borrower may
replace the Letter of Credit Issuer for any reason upon written notice to the Administrative Agent and the Letter of Credit Issuer
and the Borrower may add Letter of Credit Issuers at any time upon notice to the Administrative Agent and with the agreement of such
new Letter of Credit Issuer. If the Letter of Credit Issuer shall resign or be replaced, or if the Borrower shall decide to add a
new Letter of Credit Issuer under this Agreement, then the Borrower may appoint a successor issuer of Letters of Credit or a new
Letter of Credit Issuer, as the case may be, with the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed), whereupon such successor issuer shall succeed to the rights, powers and duties of the replaced or resigning
Letter of Credit Issuer under this Agreement and the other Credit Documents, or such new issuer of Letters of Credit shall be
granted the rights, powers and duties of a Letter of Credit Issuer hereunder, and the term “Letter of Credit Issuer”
shall mean such successor or such new issuer of Letters of Credit effective upon such appointment. At the time such resignation or
replacement shall become effective, the Borrower shall pay to the resigning or replaced Letter of Credit Issuer all accrued and
unpaid fees pursuant to Sections 4.1(b) and 4.1(d). The acceptance of any appointment as a Letter of Credit Issuer hereunder,
whether as a successor issuer or new issuer of Letters of Credit in accordance with this Agreement, shall be evidenced by an
agreement entered into by such new or successor issuer of Letters of Credit, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement, such new or successor issuer of Letters of Credit
shall become a “Letter of Credit Issuer” hereunder. After the resignation or replacement of a Letter of Credit Issuer
hereunder, the resigning or replaced Letter of Credit Issuer shall remain a party hereto and shall continue to have all the rights
and obligations of a Letter of Credit Issuer under this Agreement and the other Credit Documents with respect to Letters of Credit
issued by it prior to such resignation or replacement, but shall not be required to issue additional Letters of Credit or amend or
renew existing Letters of Credit. In connection with any resignation or replacement pursuant to this clause (a) (but, in case of any
such resignation, only to the extent that a successor issuer of Letters of Credit shall have been appointed), either (i) the
Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of Letters of Credit shall arrange to have any
outstanding Letters of Credit issued by the resigning or replaced Letter of Credit Issuer replaced with Letters of Credit issued by
the successor issuer of Letters of Credit or (ii) the Borrower shall cause the successor issuer of Letters of Credit, if such
successor issuer is reasonably satisfactory to the replaced or resigning Letter of Credit Issuer, to issue “back-stop”
Letters of Credit naming the resigning or replaced Letter of Credit Issuer as beneficiary for each outstanding Letter of Credit
issued by the resigning or replaced Letter of Credit Issuer, which new Letters of Credit shall have a face amount equal to the
Letters of Credit being back-stopped, and the sole requirement for drawing on such new Letters of Credit shall be a drawing on the
corresponding back-stopped Letters of Credit. After any resigning or replaced Letter of Credit Issuer’s resignation or
replacement as Letter of Credit Issuer, the provisions of this Agreement relating to a Letter of Credit Issuer shall inure to its
benefit as to any actions taken or omitted to be taken by it (A) while it was a Letter of Credit Issuer under this Agreement or (B)
at any time with respect to Letters of Credit issued by such Letter of Credit Issuer.
(b) To the extent that there are, at the time of any resignation or replacement as set forth in clause (a) above, any outstanding Letters
of Credit, nothing herein shall be deemed to impact or impair any rights and obligations of any of the parties hereto with respect to
such outstanding Letters of Credit (including, without limitation, any obligations related to the payment of fees or the reimbursement
or funding of amounts drawn), except that the Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of
Letters of Credit shall have the obligations regarding outstanding Letters of Credit described in clause (a) above.
3.7 Role
of Letter of Credit Issuer. Each Revolving Credit Lender and the Borrower agree that, in paying any drawing under a Letter of Credit,
the Letter of Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority
of the Person executing or delivering any such document. None of the Letter of Credit Issuer, any Related Party of the Letter of Credit
Issuer, the Administrative Agent, any of their respective Affiliates or any correspondent, participant or assignee of the Letter of Credit
Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of
the Required Lenders or the Required Revolving Credit Lenders, as applicable, (ii) any action taken or omitted in the absence of gross
negligence, bad faith or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law
or under any other agreement. None of the Letter of Credit Issuer, any Related Party of the Letter of Credit Issuer, the Administrative
Agent, any of their respective Affiliates or any correspondent, participant or assignee of the Letter of Credit Issuer shall be liable
or responsible for any of the matters described in Section 3.3(d); provided that anything in such Section to the contrary notwithstanding,
the Borrower may have a claim against the Letter of Credit Issuer, and the Letter of Credit Issuer may be liable to the Borrower, to
the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower caused
by the Letter of Credit Issuer’s willful misconduct or gross negligence, as determined in a final non-appealable judgment of a
court of competent jurisdiction, or the Letter of Credit Issuer’s willful failure to pay under any Letter of Credit after the presentation
to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit (as
determined by a court of competent jurisdiction in a final and non-appealable order). In furtherance and not in limitation of the foregoing,
the Letter of Credit Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(a) If, as of the Letter of Credit Maturity Date, there are any Letter of Credit Obligations, the Borrower shall promptly (and in any
event not later than the following Business Day) Cash Collateralize the Letter of Credit Obligations that for any reason remain outstanding.
Section 2.16 and Section 5.2 set forth certain additional circumstances under which Cash Collateral may be, or is required to be, delivered
hereunder.
(b) If any Event of Default shall occur and be continuing, the Required Revolving Credit Lenders may require that the Letter of Credit
Obligations be Cash Collateralized; provided that, upon the occurrence of an Event of Default referred to in Section 11.5, the
Borrower shall immediately Cash Collateralize the Letters of Credit then outstanding and no notice or request by or consent from the Required
Lenders shall be required.
(c) For
purposes of this Agreement, “Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Agent,
for the benefit of the Letter of Credit Issuer collateral for the Letter of Credit Obligations cash or deposit account balances (“Cash
Collateral”) in an amount equal to the amount of the Letter of Credit Obligations required to be Cash Collateralized pursuant
to documentation in form and substance reasonably satisfactory to the Administrative Agent and the Letter of Credit Issuer (which documents
are hereby consented to by the Revolving Credit Lenders). Derivatives of such terms have corresponding meanings. The Borrower hereby
grants to the Collateral Agent, for the benefit of the Letter of Credit Issuer and the Letter of Credit Participants, a security interest
in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. If at any time the Administrative Agent
determines that Cash Collateral is subject to any right or claim of any Person other than the Collateral Agent, the Letter of Credit
Issuer or the Letter of Credit Participants, other than any Liens permitted under Section 10.2, or that the total amount of such Cash
Collateral is less than the amount required to be delivered as described above, the Borrower will, promptly upon demand by the Administrative
Agent, pay or provide to the Collateral Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. Cash Collateral
shall be maintained in blocked, interest bearing deposit accounts with the Collateral Agent.
(d) Notwithstanding
anything to the contrary contained in this Agreement, Cash Collateral provided under this Agreement in respect of Letters of Credit shall
be held and applied to the satisfaction of the specific Letter of Credit Obligations, obligations to fund participations therein, any
interest accrued on such obligation and other obligations for which the Cash Collateral was so provided, prior to any other application
of such property as may otherwise be provided for herein.
(e) Cash
Collateral (or the appropriate portion thereof) provided to reduce or secure any obligations herein shall be released promptly following
(i) the elimination of the applicable obligation giving rise thereto or (ii) the determination by the Administrative Agent and the Letter
of Credit Issuer that there exists excess Cash Collateral; provided, however that (x) any such release shall be without prejudice
to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Credit
Documents and the other applicable provisions of the Credit Documents, and (y) the Person providing Cash Collateral and the Letter of
Credit Issuer may agree that Cash Collateral shall not be released but instead held to support anticipated obligations.
3.9 Conflict
with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
3.10
Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder
is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the
Letter of Credit Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance
of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business
derives substantial benefits from the businesses of such Restricted Subsidiaries.
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(a)
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The Letter of Credit Issuer shall be under no obligation to issue any Letter of Credit if:
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(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the
Letter of Credit Issuer from issuing such Letter of Credit, or any requirement of law applicable to the Letter of Credit Issuer or any
request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit
Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter
of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date,
or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and
which the Letter of Credit Issuer in good faith deems material to it;
(ii) the
issuance of such Letter of Credit would violate one or more policies or procedures of the Letter of Credit Issuer;
(iii) except
as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount
less than $100,000, in the case of a commercial Letter of Credit, or $10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars; or
(v) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder.
(b) The
Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation
at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit. Unless otherwise expressly agreed by the Letter of Credit Issuer and
the Borrower when a Letter of Credit is issued, each Letter of Credit shall be governed by, and shall be construed in accordance with,
the laws of the State of New York.
(c) The
Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative
Agent in Section 12 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term
“Administrative Agent” as used in Section 12 included the Letter of Credit Issuer with respect to such acts or omissions,
and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
3.12 Applicability
of ISP and UCP. Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued,
(i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter
of Credit. Notwithstanding the foregoing, the Letter of Credit Issuer shall not be responsible to the Borrower for, and the Letter of
Credit Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the Letter of Credit
Issuer required or permitted under any Applicable Law, order, or practice that is required or permitted to be applied to any Letter of
Credit or this Agreement, including the Applicable Law or any order of a jurisdiction where the Letter of Credit Issuer or the beneficiary
is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary
of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA),
or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
SECTION 4. Fees; Commitment Reductions and
Terminations.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender (in each case pro rata
according to the respective Revolving Credit Commitments of all such Revolving Credit Lenders) a commitment fee (the
“Commitment Fee”) in Dollars that shall accrue daily from and including the Closing Date to but excluding the
Revolving Credit Termination Date. Each such Commitment Fee shall be payable (x) quarterly in arrears on the last Business Day of
each March, June, September and December (for the three-month period (or portion thereof) ended on such day for which no payment has
been received) and (y) on the Revolving Credit Termination Date (for the period ended on such date for which no payment has been
received pursuant to clause (x) above), and shall be computed for each day during such period at a rate per annum equal to the
Commitment Fee Rate in effect on such day to be calculated based on the actual amount of the Available Revolving Credit Commitment
(in each case, assuming for this purpose that there is no reference to Swingline Loans in clause (b)(i) of the definition of
Available Revolving Credit Commitment) in effect on such day.
(b) Without duplication, the Borrower agrees to pay to the Letter of Credit Issuer for its own account a fronting fee (the “Fronting
Fee”) with respect to each Letter of Credit issued by such Letter of Credit Issuer on the Borrower’s behalf, computed
at the rate for each day for the period from and including the date of issuance of such Letter of Credit to but excluding the termination
or expiration date of such Letter of Credit equal to 0.125% per annum (or such other percentage per annum as may be agreed between the
applicable Letter of Credit Issuer and the Borrower), times the actual daily Stated Amount of such Letter of Credit. The Fronting
Fee shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, and on the Revolving
Credit Termination Date.
(c) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender, pro rata according to the
Letter of Credit Exposure of such Lender, a fee in Dollars in respect of each Letter of Credit (the “Letter of Credit Fee”),
for the period from and including the date of issuance of such Letter of Credit to but excluding the termination or expiration date of
such Letter of Credit, computed at the per annum rate for each day equal to (x) the Applicable Margin for Eurodollar Loans then in effect
for Revolving Credit Loans times (y) the actual daily Stated Amount of such Letter of Credit. Each Letter of Credit Fee shall
be due and payable quarterly in arrears on the first Business Day following each March, June, September and December and on the Revolving
Credit Termination Date. If there is any change in the Applicable Margin during any quarter, the daily maximum amount of each Letter
of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable
Margin was in effect.
(d) The Borrower agrees to pay directly to each Letter of Credit Issuer for its own account the customary issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of the Letter of Credit Issuer relating to Letters of Credit as from
time to time in effect. Such customary fees and standard costs and charges are due and payable within 10 Business Days after demand and
are nonrefundable.
(e) The
Borrower agrees to pay to the Administrative Agent the administrative agency fees in the amounts and on the dates as set forth in the
Fee Letter.
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4.2
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Voluntary Reduction of Commitments.
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(a) Upon
the prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at the Administrative
Agent’s Office (in which case the Administrative Agent shall promptly notify each of the Lenders), the Borrower shall have the
right, without premium or penalty, on any day, permanently to terminate or reduce the Commitments of any Class, as determined by the
Borrower, in whole or in part; provided that (a) any such notice shall be received by the Administrative Agent not later than
1:00 p.m., at least two Business Days prior to the proposed date of termination or reduction, (b) any such termination or reduction
shall apply proportionately and permanently to reduce the Commitments of each of the Lenders within such Class, except that,
notwithstanding the foregoing, (1) the Borrower may allocate any termination or reduction of Commitments among Classes of
Commitments at its direction (including, for the avoidance of doubt, to the Commitments with respect to any Class of Extended
Revolving Credit Commitments without any termination or reduction of the Commitments with respect to any Existing Revolving Credit
Commitments of the same Specified Existing Revolving Credit Commitment Class) and (2) in connection with the establishment on any
date of any Extended Revolving Credit Commitments pursuant to Section 2.15, the Existing Revolving Credit Commitments of any one or
more Lenders providing any such Extended Revolving Credit Commitments on such date shall be reduced in an amount equal to the amount
of Specified Existing Revolving Credit Commitments so extended on such date (or, if agreed by the Borrower and the Lenders providing
such Extended Revolving Credit Commitments, by any greater amount so long as (a) a proportionate reduction of the Specified Existing
Revolving Credit Commitments has been offered to each Lender to whom the applicable Revolving Credit Extension Request has been made
(which may be conditioned upon such Lender becoming an Extending Lender), and (b) the Borrower prepays the Existing Revolving Credit
Loans of such Class owed to such Lenders providing such Extended Revolving Credit Commitments to the extent necessary to ensure
that, after giving pro forma effect to such repayment or reduction, the Existing Revolving Credit Loans of such Class are held by
the Lenders of such Class on a pro rata basis in accordance with their Existing Revolving Credit Commitments of such Class
after giving pro forma effect to such reduction) (provided that (x) after giving pro forma effect to any such reduction and
to the repayment of any Loans made on such date, the aggregate amount of the revolving credit exposure of any such Lender does not
exceed the Existing Revolving Credit Commitment thereof (such revolving credit exposure and Revolving Credit Commitment being
determined in each case, for the avoidance of doubt, exclusive of such Lender’s Extended Revolving Credit Commitment and any
exposure in respect thereof) and (y) for the avoidance of doubt, any such repayment of Loans contemplated by the preceding clause
shall be made in compliance with the requirements of Section 5.3(a) with respect to the ratable allocation of payments hereunder,
with such allocation being determined after giving pro forma effect to any conversion or exchange pursuant to Section 2.15 of
Existing Revolving Credit Commitments and Existing Revolving Credit Loans into Extended Revolving Credit Commitments and Extended
Revolving Credit Loans respectively, and prior to any reduction being made to the Commitment of any other Lender), (c) any partial
reduction pursuant to this Section 4.2 shall be in an aggregate amount of at least $1,000,000 or any whole multiple of $1,000,000 in
excess thereof, (d) after giving pro forma effect to such termination or reduction and to any prepayments of Loans or cancellation
or Cash Collateralization of Letters of Credit made on the date thereof in accordance with this Agreement, the aggregate amount of
the Lenders’ revolving credit exposures for such Class shall not exceed the Total Revolving Credit Commitment for such Class,
(e) after giving pro forma effect to such termination or reduction and to any prepayments of Additional/Replacement Revolving Credit
Loans of any Class or cancellation or cash collateralization of letters of credit made on the date thereof in accordance with this
Agreement, the aggregate amount of such Lenders’ revolving credit exposures for such Class shall not exceed the Total
Additional/Replacement Revolving Credit Commitment for such Class and the aggregate amount of the Lenders’ revolving credit
exposure for all Classes shall not exceed the Total Revolving Credit Commitment for all Classes, and (f) if, after giving pro forma
effect to any reduction hereunder, the Letter of Credit Commitment or the Swingline Commitment exceeds the sum of the Total
Revolving Credit Commitment and the Total Additional/Replacement Revolving Credit Commitment (if any), such Commitment shall be
automatically reduced by the amount of such excess.
(b)
Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative
Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the applicable Revolving
Credit Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Sub-Commitment,
in whole or in part; provided that, after giving pro forma effect to such termination or reduction, the Letter of Credit Obligations
shall not exceed the Letter of Credit Sub-Commitment.
(c)
Notwithstanding anything to the contrary set forth in Section 4.2(a), the Borrower may terminate the unused amount of the Commitment
of a Defaulting Lender upon not less than two (2) Business Days’ prior notice to the Administrative Agent (which will promptly notify
the Lenders thereof), and in such event the provisions of Section 2.16(f) will apply to all amounts thereafter paid by the Borrower for
the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts);
provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent,
any Letter of Credit Issuer, any Swingline Lender or any Lender may have against such Defaulting Lender.
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4.3
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Mandatory Termination of Commitments.
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(a)
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The Total Initial Term Loan Commitment shall terminate upon the occurrence of the Closing
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Date.
(b) The
Total Revolving Credit Commitment shall terminate at 2:00 p.m. (New York City time) on the Revolving Credit Maturity Date.
(c) The Swingline Commitments shall terminate at 2:00 p.m. (New York City time) on the Swingline Maturity Date.
(d) The
Incremental Term Loan Commitment for any Class shall, unless otherwise provided in the documentation governing such Incremental Term
Loan Commitment, terminate at 5:00 p.m. (New York City time) on the Incremental Facility Closing Date for such Class.
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(e)
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The Additional/Replacement Revolving Credit Commitment for any Class shall terminate at 5:00p.m. (New York City time) on the maturity date for such Class specified in the documentation governing such Class.
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(f) The
Extended Loan/Commitment for any Extension Series shall terminate at 5:00 p.m. (New York City time) on the maturity date for such Class
specified in the Extension Agreement.
SECTION 5. Payments.
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5.1
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Voluntary Prepayments.
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(a) The
Borrower shall have the right to prepay Term Loans, Revolving Credit Loans, Extended Revolving Credit Loans and
Additional/Replacement Revolving Credit Loans and Swingline Loans, without, except as set forth in Section 5.1(b), premium or
penalty, in whole or in part from time to time on the following terms and conditions: (1) the Borrower shall give the Administrative
Agent at the Administrative Agent’s Office written notice (or telephonic notice promptly confirmed in writing) of its intent
to make such prepayment, the amount of such prepayment and in the case of Eurodollar Loans, the specific Borrowing(s) pursuant to
which made, which notice shall be in the form attached hereto as Exhibit N and be given by the Borrower no later than 1:00 p.m. (New
York City time) (x) on the date of such prepayment (in the case of ABR Loans, including Swingline Loans) or (y) three Business Days
prior to (in the case of Eurodollar Loans), and, in each case, the Administrative Agent shall promptly notify each of the relevant
Lenders or the relevant Swingline Lender, as the case may be, (2) each partial prepayment of any Borrowing of Term Loans or
Revolving Credit Loans shall be in a multiple of $500,000 and in an aggregate principal amount of at least $1,000,000 and each
partial prepayment of Swingline Loans shall be in a multiple of $100,000 and in an aggregate principal amount of at least $100,000; provided
that no partial prepayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount for Eurodollar Loans and (3) any prepayment of
Eurodollar Loans pursuant to this Section 5.1 on any day other than the last day of an Interest Period applicable thereto shall be
subject to compliance by the Borrower with the applicable provisions of Section 2.11. Each such notice shall specify the date and
amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. Each prepayment in respect of any Class of Term
Loans pursuant to this Section 5.1 shall be applied to reduce the Repayment Amounts in such order as the Borrower may determine and
may be applied to any Class of Term Loans as directed by the Borrower. For the avoidance of doubt, the Borrower may (i) prepay Term
Loans of an Existing Term Loan Class pursuant to this Section 5.1 without any requirement to prepay Extended Term Loans that were
converted or exchanged from such Existing Term Loan Class and (ii) prepay Extended Term Loans pursuant to this Section 5.1 without
any requirement to prepay Term Loans of an Existing Term Loan Class that were converted or exchanged for such Extended Term Loans.
In the event that the Borrower does not specify the order in which to apply prepayments to reduce Repayment Amounts or as between
Classes of Term Loans, the Borrower shall be deemed to have elected that such proceeds be applied to reduce the Repayment Amounts in
direct order of maturity and/or a pro rata basis among Term Loan Classes. All prepayments under this Section 5.1 shall also
be subject to the provisions of Sections 5.2(d) and 5.2(e). At the Borrower’s election in connection with any prepayment
pursuant to this Section 5.1, such prepayment shall not be applied to any Loan of a Defaulting Lender.
(b) Notwithstanding
anything to the contrary contained in this Agreement, at the time of the effectiveness of any Repricing Transaction (including any Incurrence
of Incremental Term Loans pursuant to the proviso of Section 2.14(b) in respect of Initial Term Loans) that is consummated prior to the
six-month anniversary of the Closing Date (the “Prepayment Premium Period”), the Borrower agrees to pay to the Administrative
Agent, for the ratable account of each Lender with outstanding Initial Term Loans, a fee in an amount equal to 1.0% of (x) in the case
of a Repricing Transaction of the type described in clause (a) of the definition thereof, the aggregate principal amount of all Initial
Term Loans prepaid (or converted or exchanged) in connection with such Repricing Transaction and (y) in the case of a Repricing Transaction
described in clause (b) of the definition thereof, the aggregate principal amount of all Initial Term Loans outstanding on such date
that are subject to an effective pricing reduction pursuant to such Repricing Transaction. Such fees shall be due and payable upon the
date of the effectiveness of such Repricing Transaction. For the avoidance of doubt, on and after the date that is six months following
the Closing Date, no fee shall be payable pursuant to this Section 5.1(b).
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5.2
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Mandatory Prepayments.
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(a)
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Term Loan Prepayments.
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(i) On
each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after the receipt of Net Cash Proceeds from
a Debt Incurrence Prepayment Event and within five Business Days after the receipt of Net Cash Proceeds in connection with the occurrence
of any other Prepayment Event, offer to prepay (or, in the case of a Debt Incurrence Prepayment Event arising from (A) the Incurrence
of Incremental Term Loans in reliance on clause (x) of the proviso to Section 2.14(b), (B) the Incurrence of Permitted Additional Debt
in reliance on clause (x) of Section 10.1(u)(i) or (C) to the extent relating to Term Loans, the Incurrence of any Credit Agreement Refinancing
Indebtedness (any of the foregoing, a “Specified Debt Incurrence Prepayment Event”), prepay), in accordance with Sections
5.2(c) and 5.2(d) below, without premium or penalty (other than to the extent any such Debt Incurrence Prepayment Event would constitute
a Repricing Transaction), a principal amount of Term Loans in an amount equal to 100% of the Net Cash Proceeds from such Prepayment Event;
provided that, in the case of Net Cash Proceeds from an Asset Sale Prepayment Event or a Recovery Prepayment Event, the Borrower
may use cash in an amount not to exceed the amount of such Net Cash Proceeds to prepay, redeem, defease, acquire repurchase or make a
similar payment to any Permitted Equal Priority Refinancing Debt or any Permitted Additional Debt secured by a Lien on the Collateral
that ranks equal in priority to the Liens on such Collateral securing the Obligations (but without regard to the control of remedies),
in each case the documentation with respect to which requires the issuer or borrower under such Indebtedness to prepay or make an offer
to prepay, redeem, repurchase, defease, acquire or satisfy and discharge such Indebtedness with the proceeds of such Prepayment Event,
in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds multiplied by (2) a fraction,
the numerator of which is the outstanding principal amount of the Permitted Equal Priority Refinancing Debt and Permitted Additional
Debt secured by a Lien on the Collateral that ranks equal in priority to the Liens on such Collateral securing the Obligations (but without
regard to control of remedies) and with respect to which such a requirement to prepay or make an offer to prepay, redeem, repurchase,
defease, acquire or satisfy and discharge exists and the denominator of which is the sum of the outstanding principal amount of such
Permitted Equal Priority Refinancing Debt and Permitted Additional Debt and the outstanding principal amount of Term Loans; provided,
further, that in the case of Net Cash Proceeds from an Asset Sale Prepayment Event or a Recovery Prepayment Event, (A) the percentage
in this Section 5.2(a)(i) shall be reduced to 50.0% if the Borrower’s Consolidated First Lien Debt to Consolidated EBITDA Ratio,
as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date the Net Cash Proceeds are
required to be offered, is less than or equal to 4.75 to 1.00 but greater than 4.25 to 1.00 and (B) no payment of any Term Loans shall
be required under this Section 5.2(a)(i) if the Borrower’s Consolidated First Lien Debt to Consolidated EBITDA Ratio, as such ratio
is calculated as of the last day of the Test Period most recently ended on or prior to the date the Net Cash Proceeds are required to
be offered, is less than or equal to 4.25 to 1.00.
(ii) Not
later than the date that is ten Business Days following the date Section 9.1 Financials are required to be delivered under Section
9.1(a) (commencing with the Section 9.1 Financials to be delivered with respect to the fiscal year ending December 31, 2018), the
Borrower shall offer to prepay, in accordance with Sections 5.2(c) and 5.2(d) below, without premium or penalty, an aggregate
principal amount of Term Loans equal to (x) 50.0% of Excess Cash Flow for such fiscal year minus (y) at the Borrower’s
option, (1) the aggregate principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1, (2) the aggregate principal
amount of Revolving Credit Loans, Extended Revolving Credit Loans and Additional/Replacement Revolving Credit Loans and other
revolving loans that are effective in reliance on Section 10.1(a) or Section 10.1(u) voluntarily prepaid pursuant to Section 5.1 to
the extent accompanied by a permanent reduction of such Revolving Credit Commitments, Incremental Revolving Credit Commitment
Increases, Extended Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments or other revolving
commitments, as applicable, in an equal amount pursuant to Section 4.2 (or equivalent provision governing such revolving credit
facility) and (3) the aggregate amount of cash consideration paid by any Purchasing Borrower Party (other than Holdings) to effect
any assignment to it of Term Loans pursuant to Section 13.6(g) (but only to the extent that such Term Loans have been cancelled) but
excluding the aggregate principal amount of any such voluntary prepayments and any such assignments made with the proceeds of
Incurrences of long-term Indebtedness or issuances of Capital Stock), in each case during such fiscal year or after year-end and
prior to the time such prepayment pursuant to this Section 5.2(a)(ii) is due; provided that, in the case that Excess Cash
Flow is required to be offered to prepay any Term Loans, the Borrower may use cash in an amount not to exceed the amount of such
Excess Cash Flow required to be offered to prepay the Term Loans to prepay, redeem, defease, acquire, repurchase or make a similar
payment to any Permitted Equal Priority Refinancing Debt or any Permitted Additional Debt secured by a Lien on the Collateral that
ranks equal in priority to the Liens on such Collateral securing the Obligations (but without regard to the control of remedies), in
each case the documentation with respect to which requires the issuer or borrower under such Indebtedness to prepay or make an offer
to prepay, redeem, repurchase, defease, acquire or satisfy and discharge such Indebtedness with a percentage of Excess Cash Flow, in
each case in an amount not to exceed the product of (1) the amount of such Excess Cash Flow required to be offered to prepay the
Term Loans multiplied by (2) a fraction, the numerator of which is the outstanding principal amount of the Permitted Equal
Priority Refinancing Debt and Permitted Additional Debt secured by a Lien on the Collateral that ranks equal in priority to the
Liens on such Collateral securing the Obligations (but without regard to control of remedies) and with respect to which such a
requirement to prepay or make an offer to prepay, redeem, repurchase, defease, acquire or satisfy and discharge exists and the
denominator of which is the sum of the outstanding principal amount of such Permitted Equal Priority Refinancing Debt and Permitted
Additional Debt and the outstanding principal amount of Term Loans; provided, further, that (A) the percentage in this
Section 5.2(a)(ii) shall be reduced to 25% if the Borrower’s Consolidated First Lien Debt to Consolidated EBITDA Ratio for the
fiscal year ended prior to such prepayment date is less than or equal to 4.75 to 1.00 but greater than 4.25 to 1.00 and (B) no
payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien Debt to Consolidated EBITDA
Ratio for the fiscal year ended prior to such prepayment date is less than or equal to 4.25 to 1.00. Any prepayment amounts credited
pursuant to subclause (y) above against such amount in subclause (x) above shall be without duplication of any such credit in any
prior or subsequent fiscal year.
(b)
Repayment of Revolving Credit Loans. If, on any date, the aggregate amount of the Lenders’ Revolving Credit Exposures
in respect of any Class of Revolving Credit Loans for any reason exceeds 100% of the Revolving Credit Commitment of such Class then in
effect, the Borrower shall forthwith repay on such date the principal amount of Swingline Loans of such Class, and after all such Swingline
Loans have been paid in full, the Revolving Credit Loans of such Class in an amount equal to such excess. If, after giving pro forma effect
to the prepayment of all outstanding Swingline Loans and Revolving Credit Loans of such Class, the Revolving Credit Exposures of such
Class exceeds the Revolving Credit Commitment of such Class then in effect, the Borrower shall Cash Collateralize the Letters of Credit
outstanding in relation to such Class to the extent of such excess.
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(c)
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Application to Repayment Amounts.
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(i) Subject
to clause (ii) of this Section 5.2(c), the first proviso to Section 5.2(a)(i) and the first proviso to Section 5.2(a)(ii), (A) each
prepayment of Term Loans required by Sections 5.2(a)(i) and (ii) (other than in connection with a Debt Incurrence Prepayment Event)
shall be allocated to the Classes of Term Loans outstanding, pro rata, based upon the applicable remaining
Repayment Amounts due in respect of each such Class of Term Loans (excluding any Class of Term Loans that has agreed to receive a
less than pro rata share of any such mandatory prepayment and taking into account any reduction in the amount of
any required Excess Cash Flow payment to any Class of Term Loans that have been subject to a Section 13.6(g) transaction), shall be
applied pro rata to Lenders within each Class, based upon the outstanding principal amounts owing to each such Lender under each
such Class of Term Loans and shall be applied to reduce such scheduled Repayment Amounts within each such Class in accordance with
Section 5.2(d)(ii) and (B) each prepayment of Term Loans required by Section 5.2(a)(i) in connection with a Debt Incurrence
Prepayment Event shall be allocated to any Class of Term Loans outstanding as directed by the Borrower (subject to the requirement
that the proceeds of any Specified Debt Incurrence Prepayment Event shall in all cases be applied to prepay or repay the applicable
Refinanced Indebtedness), shall be applied pro rata to Lenders within each such Class, based upon the outstanding principal amounts
owing to each such Lender under each such Class of Term Loans and shall be applied to reduce such scheduled Repayment Amounts within
each such Class in accordance with Section 5.2(d)(ii); provided that, with respect to the allocation of such prepayments
under clause (A) above only, between an Existing Term Loan Class and Extended Term Loans of the same Extension Series, the Borrower
may allocate such prepayments as the Borrower may specify, subject to the limitation that the Borrower shall not allocate to
Extended Term Loans of any Extension Series any such mandatory prepayment under such clause (A) unless such prepayment is
accompanied by at least a pro rata prepayment, based upon the applicable remaining Repayment Amounts due in respect thereof, of the
Term Loans of the Existing Term Loan Class, if any, from which such Extended Term Loans were converted or exchanged (or such Term
Loans of the Existing Term Loan Class have otherwise been repaid in full).
(ii)
With respect to each such prepayment required by Section 5.2(a)(i) and Section 5.2(a)(ii) (other than any Debt Incurrence Prepayment
Event), (A) the Borrower will, not later than the date specified in Section 5.2(a) for offering to make such prepayment, give the Administrative
Agent, written notice requesting that the Administrative Agent provide notice of such prepayment to each Lender and the Administrative
Agent will promptly provide such notice to each Lender, (B) other than if such prepayment arises due to a Specified Debt Incurrence Prepayment
Event, each Lender of Term Loans will have the right to refuse any such prepayment by giving written notice of such refusal to the Administrative
Agent and the Borrower within three Business Days after such Lender’s receipt of notice from the Administrative Agent of such prepayment,
and to the extent any such prepayment is so refused, such amounts may be retained by the Borrower (the “Retained Refused Proceeds”)
and (C) the Borrower will make all such prepayments not so
refused upon the tenth Business Day after the Lender received first notice of repayment from the Administrative Agent.
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(d)
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Application to Term Loans.
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(i)
With respect to each prepayment of Term Loans elected by the Borrower pursuant to Section 5.1 or pursuant to a Specified Debt Incurrence
Prepayment Event, such prepayments shall be applied to reduce Repayment Amounts in such order as the Borrower may specify (or, if not
specified, in direct order of maturity) and the Borrower may designate the Types of Loans that are to be prepaid and the specific Borrowing(s)
pursuant to which made; provided that the Borrower pays any amounts, if any, required to be paid pursuant to Section 2.11 with
respect to prepayments of Eurodollar Loans made on any date other than the last day of the applicable Interest Period. In the absence
of a designation by the Borrower as described in the preceding sentence, the Administrative Agent, shall, subject to the above, make such
designation in a manner that minimizes the amount of payments required to be made by the Borrower pursuant to Section 2.11.
(ii)
With respect to each prepayment of Term Loans by the Borrower required pursuant to Section 5.2(a) (other than in respect of a Specified
Debt Incurrence Prepayment Event) such prepayments shall be applied to reduce Repayment Amounts in direct order of maturity and on a pro
rata basis to the then outstanding Term Loans (other than any Class of Term Loans that has agreed to receive a less than pro rata
share of any such mandatory prepayment) being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurodollar
Loans; provided that, if no Lender exercises the right to waive a given mandatory prepayment of the Term Loans pursuant to Section
5.2(c)(ii), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans
that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans in a manner that minimizes the
amount of any payments required to be made by the Borrower pursuant to Section 2.11.
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(e)
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Application to Revolving Credit Loans; Mandatory Commitment Reduction.
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(i) With
respect to each prepayment of Revolving Credit Loans, Extended Revolving Credit Loans and Additional/Replacement Revolving Credit Loans
elected by the Borrower pursuant to Section 5.1 or required by Section 5.2(b), the Borrower may designate (i) the Class and Types of
Loans that are to be prepaid and the specific Borrowing(s) pursuant to which such Loans were made and (ii) the Class of Revolving Credit
Loans, Extended Revolving Credit Loans or Additional/Replacement Revolving Credit Loans to be prepaid; provided that (x)
Eurodollar Loans may be designated for prepayment pursuant to this Section 5.2 only on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans with Interest Periods ending on such date of required prepayment and all ABR Loans have been paid
in full; (y) each prepayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans
of such Class (except that any prepayment made in connection with a reduction of the Commitments of such Class pursuant to Section 4.2
shall be applied pro rata based on the amount of the reduction in the Commitments of such Class of each applicable Lender); and (z) notwithstanding
the provisions of the preceding clause (y), at the option of the Borrower, no prepayment made pursuant to Section 5.1 or Section 5.2(b)
of Revolving Credit Loans, Extended Revolving Credit Loans or Additional/Replacement Revolving Credit Loans of any Class shall be applied
to the Loans of any Defaulting Lender. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative
Agent shall, subject to the above, make such designation in a manner that minimizes the amount of any payments required to be made by
the Borrower pursuant to Section 2.11.
(ii) With respect
to each mandatory reduction and termination of Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments (and
any previously extended Extended Revolving Credit Commitments) required by either clause (i) or (ii) of the proviso to Section 2.14(b),
by Section 10.1(u)(i) or in connection with the Incurrence of any Credit Agreement Refinancing Indebtedness Incurred to Refinance any
Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments and/or Extended Revolving Credit Commitments, the Borrower
may designate (A) the Classes of Commitments to be reduced and terminated and (B) the corresponding Classes of Loans to be prepaid; provided
that (x) any such reduction and termination shall apply proportionately and permanently to reduce the Commitments of each of the Lenders
within any such Class and (y) after giving pro forma effect to such termination or reduction and to any prepayments of Loans or cancellation
or cash collateralization of letters of credit made on the date of each such reduction and termination in accordance with this Agreement,
the aggregate amount of such Lenders’ credit exposures shall not exceed the remaining Commitments of such Lenders’ in respect
of the Class reduced and terminated. In connection with any such termination or reduction, to the extent necessary, the participations
hereunder in outstanding Letters of Credit and Swingline Loans may be required to be reallocated and related loans outstanding prepaid
and then reborrowed, in each case in the manner contemplated by Section 2.14(f)(ii) (as modified to account for a termination or reduction,
as opposed to an increase, of such Commitment).
(f)
Eurodollar Interest Periods. In lieu of making any payment pursuant to this Section 5.2 in respect of any Eurodollar Loan
other than on the last day of the Interest Period thereof, so long as no Default or Event of Default shall have occurred and be continuing,
the Borrower at its option may deposit with the Administrative Agent an amount equal to the amount of the Eurodollar Loan to be prepaid
and such Eurodollar Loan shall be repaid on the last day of the Interest Period therefor in the required amount. Such deposit shall be
held by the Administrative Agent in a corporate time deposit account established on terms reasonably satisfactory to the Administrative
Agent, earning interest at the then-customary rate for accounts of such type. Such deposit shall constitute cash collateral for the Obligations;
provided that the Borrower may at any time direct that such deposit be applied to make the applicable payment required pursuant
to this Section 5.2.
(i)
No prepayment shall be required pursuant to Section 5.2(a)(i) (except to the extent such prepayment arises due to a Debt Incurrence
Prepayment Event) unless and until the amount at any time of Net Cash Proceeds from Prepayment Events required to be offered at or prior
to such time pursuant to such Section and not yet offered at or prior to such time to prepay Term Loans pursuant to such Section exceeds
(i) $5,000,000 for any single Prepayment Event or series of related Prepayment Events and (ii) $10,000,000 in the aggregate for all such
Prepayment Events in any fiscal year, at which time the amount in excess of $5,000,000 or $10,000,000, as the case may be, will be offered
to be prepaid as provided in Section 5.2(a)(i), with the date of receipt of such Net Cash Proceeds being deemed for such purpose to be
the date such thresholds set forth in clauses (i) and (ii) of this clause (g) are met.
(ii)
No prepayment shall be required pursuant to Section 5.2(a)(ii) unless and until the amount of Excess Cash Flow required to be offered
to prepay Term Loans for a fiscal year pursuant to such Section exceeds $2,500,000, at which time the amount in excess of $2,500,000,
will be offered to be prepaid as provided in Section 5.2(a)(ii).
(h) Non-Credit
Party Asset Sales. Notwithstanding any other provisions of this Section 5.2(h), (i) to the extent that any of or all the Net
Cash Proceeds of any asset sale by a Non-Credit Party giving rise to an Asset Sale Prepayment Event (a “Non-Credit Party
Asset Sale”), the Net Cash Proceeds of any Recovery Event from a Non-Credit Party (a “Non-Credit Party Recovery
Event”) or Excess Cash Flow, are prohibited, delayed or restricted by applicable local law, rule or regulation (including
financial assistance and corporate benefit restrictions and statutory duties of the relevant directors) from being repatriated or
expatriated to the United States or from being distributed to a Credit Party, the portion of such Net Cash Proceeds or Excess Cash
Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.2(h) but may be
retained by the applicable Non-Credit Party so long, but only so long, as the applicable local law, rule or regulation will not
permit repatriation to the United States or expatriation or distribution to a Credit Party (the Borrower hereby agreeing to cause
the applicable Non-Credit Party to promptly take all commercially reasonable actions available under applicable local law, rule or
regulation to permit such repatriation, expatriation or distribution), and once such repatriation, expatriation or distribution of
any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation, such
repatriation, expatriation or distribution will be immediately effected and such repatriated, expatriated or distributed Net Cash
Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation,
expatriation or distribution) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of
the Term Loans (and, if applicable, such other Indebtedness as is contemplated by this Section 5.2(h)) pursuant to this Section
5.2(h) and (ii) to the extent that the Borrower has determined in good faith that such repatriation or expatriation of any of or all
the Net Cash Proceeds of any Non-Credit Party Asset Sale, any Non-Credit Party Recovery Event or Excess Cash Flow would have a
material adverse tax cost consequence with respect to such Net Cash Proceeds or Excess Cash Flow (but only for so long as such
material adverse tax cost consequence exists), the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the
applicable Non-Credit Party; provided that, in the case of this clause (ii), on or before the date on which any Net Cash
Proceeds from any Non-Credit Party Asset Sale or Non-Credit Party Recovery Event so retained would otherwise have been required to
be applied to reinvestments or prepayments pursuant to Section 5.2(a) (or, in the case of Excess Cash Flow, a date on or before the
date that is six months after the date such Excess Cash Flow would have been so required to be applied to prepayments pursuant to
Section 5.2(a)(ii) unless previously repatriated or expatriated in which case such repatriated or expatriated Excess Cash Flow shall
have been promptly applied to the repayment of the Term Loans pursuant to Section 5.2(a)), (x) the Borrower applies an amount equal
to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow
had been received by the Borrower rather than such Non-Credit Party, less the amount of additional taxes that would have been
payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated or expatriated (or, if less, the Net
Cash Proceeds or Excess Cash Flow that would be calculated if received by such Non-Credit Party) or (y) such Net Cash Proceeds or
Excess Cash Flow are applied to the repayment of Indebtedness of a Non-Credit Party.
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5.3
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Method and Place of Payment.
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(a)
All payments under this Agreement shall be made by the Borrower, without set-off, counterclaim or deduction of any kind. Except
as otherwise specifically provided in this Agreement, all payments by the Borrower under this Agreement shall be made in Dollars to the
Administrative Agent for the ratable account of the applicable Lenders entitled thereto, the applicable Letter of Credit Issuer or the
Swingline Lender (except to the extent payments are to be made directly to such Letter of Credit Issuer or the Swingline Lender), as the
case may be, not later than 2:00 p.m. (New York City time) on the date when due and shall be made in immediately available funds at the
Administrative Agent’s Office it being understood that written, electronic or facsimile notice by the Borrower to the Administrative
Agent to make a payment from the funds in the Borrower’s account at the Administrative Agent’s Office shall constitute the
making of such payment to the extent of such funds held in such account. The Administrative Agent will thereafter cause to be distributed
on the same day (if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York City time) on such day and,
if not, on the next Business Day in the Administrative Agent’s sole discretion) like funds relating to the payment of principal
or interest or Fees ratably to the Lenders entitled thereto or to the Letter of Credit Issuer or the Swingline Lender, as applicable.
(b)
For purposes of computing interest or fees, any payments under this Agreement that are made later than 2:00 p.m. (New York City
time) shall be deemed to have been made on the next succeeding Business Day in the Administrative Agent’s sole discretion (and the
Administrative Agent may extend such deadline in its discretion whether or not such payments are in process). Except as otherwise provided
in this Agreement, whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during
such extension at the applicable rate in effect immediately prior to such extension.
(a)
Except as required by law, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document
shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority (including any interest, additions to tax and penalties) (collectively, “Taxes”) excluding
in the case of each Lender and each Agent and except as otherwise provided in Section 5.4(f), (A) net income Taxes and franchise Taxes
(imposed in lieu of net income Taxes) imposed on such Agent or such Lender as a result of (i) such Agent or such Lender having been organized
under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction
imposing such Tax or (ii) a present or former connection between such Agent or such Lender and the jurisdiction imposing such Tax or any
political subdivision or taxing authority thereof or therein (other than any such connection arising from such Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or enforced, or engaged in any other transactions pursuant
to, this Agreement or any other Credit Document), (B) any branch profits Taxes imposed by the United States of America or any similar
Tax imposed by any other jurisdiction described in clause (A) and (C) any U.S. federal withholding Tax imposed pursuant to FATCA (collectively,
“Excluded Taxes”). If any such non- Excluded Taxes imposed on or with respect to any payment by or on account of any
obligation of any Credit Party under Credit Documents (“Non-Excluded Taxes”) are required to be withheld by a Withholding
Agent from any amounts payable under this Agreement or any other Credit Document, the applicable Credit Party shall increase the amounts
payable to the Administrative Agent or such Lender to the extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes including those applicable to any amounts payable under this Section 5.4) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in such Credit Document. Whenever any withholding Taxes are payable
by any Credit Party in respect of amounts payable under any Credit Document, promptly thereafter, the applicable Credit Party shall send
to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original
official receipt, if available (or other evidence acceptable to such Lender, acting reasonably) received by the applicable Credit Party
showing payment thereof. The agreements in this Section 5.4 shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
(b)
In addition, each Credit Party shall pay any present or future stamp, documentary, filing, mortgage, recording, property or intangible
taxes, charges or similar levies that arise from any payment made by such Credit Party hereunder or under any other Credit Documents or
from the execution, delivery or registration or recordation of, performance under, or otherwise with respect to, this Agreement or the
other Credit Documents, except any taxes imposed as a result of a present or former connection between an assignee and the jurisdiction
imposing such tax (other than a connection arising solely from an assignee having executed, delivered, become a party to, performed its
obligations under, received or perfected a security interest under, engaged in any transaction pursuant to, or enforced this Agreement)
with respect to an assignment (other than an assignment requested by a Credit Party) (hereinafter referred to as “Other Taxes”).
(c)
(i) Subject to Section 5.4(f), the Credit Parties shall jointly and severally indemnify each Lender and each Agent for and hold
them harmless against the full amount of Non-Excluded Taxes and Other Taxes, and for the full amount of Non-Excluded Taxes and Other Taxes
payable, imposed or asserted (whether or not correctly or legally asserted) by any jurisdiction on any additional amounts or indemnities
payable under this Section 5.4, imposed on or paid by such Lender or such Agent (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect thereto; provided that if any claim pursuant to this
Section 5.4(c)(i) is made later than 180 days after the date on which the relevant Lender or Agent had actual knowledge of the relevant
Non-Excluded Taxes or Other Taxes, then the Credit Parties shall not be required to indemnify the applicable Lender or Agent for any penalties
which accrue in respect of such Non-Excluded Taxes or Other Taxes after the 180th day. This indemnification shall be made within 30 days
from the date such Lender or such Agent (as the case may be) makes written demand therefor.
(ii)
Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand
therefor, (x) the Administrative Agent against any Non-Excluded Taxes attributable to such Lender (but only to the extent that any
Credit Party has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of
Credit Parties to do so), (y) the Administrative Agent
and the Credit Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions
of Section 13.6(d)(ii) relating to the maintenance of a Participant Register and (z)
the Administrative Agent and the Credit Parties, as applicable, against any Excluded Taxes attributable to such Lender that are
payable or paid by the Administrative Agent or the Credit Parties in connection with any Credit Document, and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the
Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off
and apply any and all amounts at any time owing to such Lender under this Agreement or any other Credit Document against any amount
due to the Administrative Agent under this clause (ii).
(d)
Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower
and the Administrative Agent with any documentation prescribed by any Applicable Law or reasonably requested by the Borrower or the Administrative
Agent (A) as will permit such payments to be made without, or at a reduced rate of, withholding or (B) as will enable the Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation obsolete, expired or inaccurate
in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including
any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative
Agent of its inability to do so. Notwithstanding anything herein to the contrary, the completion, execution and submission of such documentation
(other than such documentation set forth in Sections 5.4(d)(i), 5.4(e) and 5.4(g) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or
would materially prejudice the legal or commercial position of such Lender. Without limiting the foregoing to the extent permitted by
law, each Lender that is not a United States person within the meaning of Section 7701(a)(30) of the Code (a “Non-U.S. Lender”)
shall:
(i)
deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from
time to time thereafter upon the request of the Borrower or the Administrative Agent) two properly executed originals of (w) in the case
of Non-U.S. Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to payments
of “portfolio interest,” United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code, is not a 10 percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within
the meaning of Section 864(d)(4) of the Code) substantially in the form of Exhibit K (a “United States Tax Compliance Certificate”)),
(x) United States Internal Revenue Service Form W-8BEN, W-8BEN-E or Form W-8ECI, (y) to the extent a Non-U.S. Lender is not the Beneficial
Owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), United States Internal Revenue Service Form
W-8IMY (or any successor forms) of the Non-U.S. Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, United States Tax Compliance
Certificate, Form W-9, Form W-8IMY or any other required information from each Beneficial Owner, as applicable (provided that,
if one or more Beneficial Owners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided
by such Non-U.S. Lender on behalf of such Beneficial Owner), and/or (z) any other form prescribed by applicable U.S. federal income Tax
laws (including the United States Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal
withholding Tax on any payments to such Lender under the Credit Documents, in each case properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments by the Borrower under this Agreement;
and
(ii) deliver
to the Borrower and the Administrative Agent two further originals of any such form or certification (or any applicable successor
form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate and promptly after the
occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower;
unless in any such
case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required
that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect
to it. Each Lender shall promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in
a position to provide any previously delivered form or certification to the Borrower or the Administrative Agent.
(e)
If a payment made to a Lender under this Agreement or any other Credit 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 Withholding Agent, at the time or times prescribed
by law and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including
as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent
as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has or has not
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 Section 5.4(e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(f)
No Credit Party shall be required to indemnify any Lender or Agent pursuant to Section 5.4(c), or to pay any additional amounts
to any Lender or Agent pursuant to Section 5.4(a) in respect of (i) U.S. federal withholding Taxes imposed under any law in effect on
the date such Lender acquired its interest in the applicable Loan, Commitment or Letter of Credit or changed its lending office; provided,
however, that this Section 5.4(f) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender
would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person
making the assignment or change in lending office would have been entitled to receive immediately prior to such assignment or change in
lending office, or (y) such assignment had been requested by a Credit Party or (ii) Taxes attributable to such Lender’s failure
to comply with the provisions of Section 5.4(d), 5.4(e) or 5.4(g).
(g)
Each Lender that is organized in the United States of America or any state thereof or the District of Columbia shall (A) on or
prior to the date such Lender becomes a Lender hereunder, (B) on or prior to the date on which any such form or certification expires
or becomes obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered
by it pursuant to this Section 5.4(g) and (D) from time to time if requested by the Borrower or the Administrative Agent (or, in the case
of a participant, the relevant Lender), provide the Administrative Agent and the Borrower (or, in the case of a participant, the relevant
Lender) with two duly completed and signed originals of United States Internal Revenue Service Form W-9 (certifying that such Lender is
entitled to an exemption from U.S. backup withholding tax) or any successor form.
(h)
If any Lender or the Administrative Agent determines in its sole discretion, exercised in good faith, that it has received a refund
of a Non-Excluded Tax or Other Taxes for which a payment has been made by a Credit Party pursuant to this Agreement, which refund in the
good-faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by such Credit
Party, then such Lender or the Administrative Agent, as the case may be, shall reimburse the Credit Party for such amount (together with
any interest received thereon) as such Lender or the Administrative Agent, as the case may be, reasonably determines to be the proportion
of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had
not been required; provided that the Credit Party, upon the request of such Lender, agrees to repay the amount paid over to the
Credit Party (with interest and penalties) in the event such Lender or the Administrative Agent is required to repay such refund to such
Governmental Authority. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax
affairs or computations to any Credit Party in connection with this paragraph (h) or any other provision of this Section 5.4; provided,
further, that nothing in this Section 5.4 shall obligate any Lender (or Transferee) or the Administrative Agent to apply for any
refund.
(i)
For purpose of this Section 5.4, the term “Lender” shall include any Swingline Lender and any Letter of Credit
Issuer.
5.5
Computations of Interest and Fees. All computations of interest and of fees shall be made by the Administrative Agent on
the basis of a year of 360 days and, in the case of ABR Loans, 365 or 366 days, as the case may be, in each case for the actual number
of days (including the first day but excluding the last) occurring in the period for which such interest and fees are payable.
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5.6
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Limit on Rate of Interest.
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(a)
No Payment Shall Exceed Lawful Rate. Notwithstanding any other term of this Agreement, the Borrower shall not be obliged
to pay any interest or other amounts under or in connection with this Agreement or any other Credit Document in excess of the amount or
rate permitted under or consistent with any Applicable Law.
(b)
Payment at Highest Lawful Rate. If the Borrower is not obliged to make a payment which it would otherwise be required to
make, as a result of Section 5.6(a), the Borrower shall make such payment to the maximum extent permitted by or consistent with Applicable
Law.
(c)
Adjustment if Any Payment Exceeds Lawful Rate. If any provision of this Agreement or any of the other Credit Documents would
obligate the Borrower to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which
would be prohibited by any Applicable Law, or would result in receipt by an Agent or Lender of interest at a rate prohibited by any Applicable
Law, then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum
amount or rate of interest, as the case may be, as would not be so prohibited by Applicable Law (in the case of the Borrower), such adjustment
to be effected, to the extent necessary, as follows:
(i)
firstly, by reducing the amount or rate of interest required to be paid by the Borrower to the affected Lender under Section 2.8;
and
(ii)
thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid by the Borrower to the affected Lender.
Notwithstanding the foregoing, and
after giving pro forma effect to all adjustments contemplated thereby, if any Lender shall have received from the Borrower an amount in
excess of the maximum permitted by any Applicable Law, then the Borrower shall be entitled, by notice in writing to the Administrative
Agent, to obtain reimbursement from such Lender in an amount equal to such excess, and pending such reimbursement, such amount shall be
deemed to be an amount payable by such Lender to the Borrower.
SECTION 6. Conditions Precedent
to Initial Credit Event. The occurrence of the initial Credit Event is subject to the satisfaction of the following conditions precedent:
6.1
Credit Documents. The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles
(followed promptly by originals), or electronic copies unless otherwise specified, each properly executed by an Authorized Officer of
the signing Credit Party:
(a)
this Agreement, executed and delivered by (i) an Authorized Officer of each of Holdings and the Borrower, (ii) each Agent, (iii)
each Lender, (iv) the Swingline Lender and (v) each Letter of Credit Issuer;
(b)
the Guarantee, executed and delivered by an Authorized Officer of each Person that is a Guarantor as of the Closing Date;
(c)
the Security Agreement, executed and delivered by an Authorized Officer of Holdings, the Borrower and each other grantor party
thereto as of the Closing Date;
(d)
the Pledge Agreement, executed and delivered by an Authorized Officer of the Borrower and each other pledgor party thereto; and
(e)
such certificates of good standing (to the extent such concept exists) from the applicable secretary of state or other relevant
Governmental Authority of the jurisdiction of organization of each Credit Party.
(a)
All Capital Stock of the Borrower and all Capital Stock of each wholly owned Restricted Subsidiary of the Borrower directly owned
by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to the Pledge Agreement
(except that such Credit Parties shall not be required to pledge any Excluded Capital Stock) and the Collateral Agent shall have received
all certificates, if any, (except as permitted by Section 9.17) representing such securities pledged under the Pledge Agreement, accompanied
by instruments of transfer and undated stock powers endorsed in blank.
(b)
(i) Except with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in
excess of $5,000,000 (individually) that is owing to Holdings, the Borrower or any Subsidiary Guarantor shall be evidenced by a promissory
note and shall have been pledged pursuant to the Pledge Agreement, and the Collateral Agent shall have received all such promissory notes,
together with undated instruments of transfer with respect thereto endorsed in blank.
(ii) All Indebtedness
of Holdings, the Borrower and each Restricted Subsidiary on the Closing Date that is owing to any Credit Party shall be evidenced by the
Intercompany Note, which shall be executed and delivered by Holdings, the Borrower and each Restricted Subsidiary on the Closing Date
and shall have been pledged pursuant to the Pledge Agreement, and the Collateral Agent shall have received such Intercompany Note, together
with undated instruments of transfer with respect thereto endorsed in blank; provided, however, that, if the Intercompany
Note cannot be delivered to the Collateral Agent on or prior to the Closing Date notwithstanding the Borrower’s use of commercially
reasonable efforts to do so, delivery thereof shall not be a condition to closing, and in such case the Borrower agrees to deliver same
to the Collateral Agent not later than 90 days following the Closing Date (or such later date as the Collateral Agent shall agree in its
discretion).
(c)
All documents and instruments, including UCC or other applicable personal property security financing statements and Intellectual
Property Security Agreements (as defined in the Security Agreement), required by Applicable Law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents on the Collateral owned
by the Borrower and the Guarantors and perfect such Liens in the United States to the extent required by, and with the priority required
by, the Security Documents shall have been filed, registered or recorded or delivered to the Collateral Agent in appropriate form for
filing, registration or recording under the UCC and with the United States Patent and Trademark Office or the United States Copyright
Office, as applicable.
(d)
The Collateral Agent shall have received a completed Perfection Certificate, dated as of the Closing Date and signed by an Authorized
Officer of the Borrower, together with all attachments contemplated thereby.
Notwithstanding anything to the
contrary contained in this Agreement or the other Credit Documents, to the extent any security interest in any Collateral is not or cannot
be provided and/or perfected on the Closing Date (other than the pledge and perfection of the security interests (i) in the certificated
Capital Stock, if any, of the Borrower and any wholly owned Domestic Restricted Subsidiary that is not an Immaterial Subsidiary (to the
extent required by Section 6.2(a)) and (ii) in other assets pursuant to which a security interest may be perfected by the filing of a
financing statement under the UCC) after the Borrower’s use of commercially reasonable efforts to do so or without undue burden
or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition to the initial
Credit Event to occur on the Closing Date and the Borrower agrees to deliver or cause to be delivered such documents and instruments,
and take or cause to be taken such other actions as may be required to provide and/or perfect such security interests, with respect to
any certificated Capital Stock of the Target or Amplify or any wholly owned material U.S. restricted subsidiary of the Target or Amplify
not delivered on the Closing Date, on or prior to the date that is 5 Business Days after the Closing Date, and with respect to any other
such Collateral not actually received from the Target or Amplify on or prior to the Closing Date after use of commercially reasonably
efforts to procure delivery thereof, on or prior to the date that is 90 days after the Closing Date or, in each case, such longer period
of time as may be mutually agreed by the Collateral Agent and the Borrower, each acting reasonably.
6.3
Legal Opinions. The Administrative Agent shall have received the executed legal opinions of (a) Simpson Thacher & Bartlett
LLP, New York counsel to Holdings, the Borrower and its Subsidiaries and (b) K&L Gates LLP, North Carolina counsel to Holdings, the
Borrower and its Subsidiaries, in each case in form and substance reasonably satisfactory to the Administrative Agent.
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6.4
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Structure and Terms of the Transaction; No Material Adverse Effect.
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(a)
The Mergers shall have been consummated, or shall be consummated substantially simultaneously with, the initial Credit Event hereunder
to occur on the Closing Date, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect
to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements,
consents, waivers or requests (including the effects of any such requests) by Holdings (and/or its affiliates) that are materially adverse
to the interests of the Lenders or the Joint Bookrunners, unless consented to in writing by the Joint Bookrunners (such consent not to
be unreasonably withheld or delayed).
(b)
The Equity Contribution shall have been made, or shall be made substantially simultaneously with, the initial Credit Event hereunder
to occur on the Closing Date, in at least the amount set forth in the third recital to this Agreement.
(c)
The Existing Debt Refinancing shall have been consummated, or shall be consummated substantially simultaneously with, the initial
Credit Event hereunder to occur on the Closing Date.
(d)
Since the date of the Acquisition Agreement, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement).
6.5
Closing Certificates. The Administrative Agent shall have received a certificate of each Person that is a Credit Party as
of the Closing Date, dated the Closing Date, substantially in the form of Exhibit E, with appropriate insertions, executed by two Authorized
Officers of such Credit Party, and attaching the documents referred to in Sections 6.6 and 6.7.
6.6
Corporate Proceedings. The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably
satisfactory to the Administrative Agent, of the Board of Directors or other governing body, as applicable, of each Person that is a Credit
Party as of the Closing Date (or a duly authorized committee thereof) authorizing (a) the execution, delivery and performance of the Credit
Documents (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the extensions of credit contemplated
hereunder.
6.7
Corporate Documents. The Administrative Agent shall have received true and complete copies of the Organizational Documents
of each Person that is a Credit Party as of the Closing Date.
6.8
Solvency Certificate. The Administrative Agent shall have received a certificate from the chief financial officer of the
Borrower substantially in the form of Exhibit J.
6.9
Financial Statements. The Administrative Agent and the Joint Bookrunners shall have received the Historical Financial Statements
and the Pro Forma Financial Statements.
6.10
PATRIOT ACT. The Administrative Agent and the Joint Bookrunners shall have received, at least three Business Days prior
to the Closing Date, all documentation and other information about Holdings, the Borrower and the other Guarantors that shall have been
reasonably requested by the Administrative Agent or the Joint Bookrunners in writing at least 10 Business Days prior to the Closing Date
and that the Administrative Agent and the Joint Bookrunners reasonably determine is required by United States regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT
ACT.
6.11 Fees
and Expenses. All fees required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee Letter and
reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee Letter, and
with respect to expenses to the extent invoiced at least three business days prior to the Closing Date (except as otherwise
reasonably agreed by the Borrower), shall, upon the initial borrowings under the Credit Facilities, have been, or will be
substantially simultaneously, paid (which amounts may be offset against the proceeds of the Credit Facility).
6.12
Specified Representations. The Specified Representations and the Specified Acquisition Agreement Representations shall be
true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of
such earlier date); provided that, with respect to the Specified Representations made on the Closing Date, to the extent that such
representations are qualified by “Material Adverse Effect”, the definition of “Material Adverse Effect” applicable
to such qualifications shall be the definition of “Material Adverse Effect” set forth in the Acquisition Agreement and not
the definition of “Material Adverse Effect” set forth in this Agreement.
Without limiting
the generality of the provisions of the last paragraph of Section 12.3, for purposes of determining compliance with the conditions specified
in this Section 6, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
SECTION 7. Conditions Precedent to All Credit Events.
7.1
No Default; Representations and Warranties. The agreement of each Lender to make any Loan requested to be made by it on
any date (excluding Mandatory Borrowings and Revolving Credit Loans made pursuant to Section 2.1(d)(ii) or pursuant to Section 3.4(a)
which shall each be made without regard to the satisfaction of the condition set forth in this Section 7 and excluding borrowings made
pursuant to Section 2.14, Section 2.15 and/or Section 2.17, which may be subject to different conditions precedent and representations,
but only if so agreed by the Borrower and the applicable Lenders) and the obligation of the Letter of Credit Issuer to issue, amend, extend
or renew Letters of Credit on any date is subject to the satisfaction of the condition precedent that at the time of each such Credit
Event and also after giving effect thereto (a) except in the case of the initial Credit Event to occur on the Closing Date, no Default
or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Credit Event and (b) except in
the case of the initial Credit Event to occur on the Closing Date, all representations and warranties made by any Credit Party contained
herein or in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations
and warranties had been made on and as of the date of such Credit Event (except where such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of
such earlier date, and except where such representations and warranties are qualified by materiality, “Material Adverse Effect”
or similar language, in which case such representations and warranties shall be true and correct in all respects). The acceptance of the
benefits of each such Credit Event shall constitute a representation and warranty by each Credit Party to each of the Lenders that the
conditions contained in this Section 7.1 have been met as of such date.
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7.2
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Notice of Borrowing; Letter of Credit Request.
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(a)
Prior to the making of each Term Loan, each Revolving Credit Loan (other than any Revolving Credit Loan made pursuant to Section
2.1(d)(ii) or pursuant to Section 3.4(a)), each Additional/Replacement Revolving Credit Loan and each Extended Revolving Credit Loan and
each Swingline Loan, the Administrative Agent shall have received a written Notice of Borrowing meeting the requirements of Section 2.3.
(b)
Prior to the issuance of each Letter of Credit, the Administrative Agent and the Letter of Credit Issuer shall have received a
Letter of Credit Request meeting the requirements of Section 3.2(a).
SECTION
8. Representations, Warranties and Agreements. In order to induce the
Lenders to enter into this Agreement, make the Loans and issue, renew, amend, extend or participate in Letters of Credit as provided
for herein, each of Holdings and the Borrower makes the following representations and warranties to, and agreements with, the
Lenders and the Letter of Credit Issuer, all of which shall survive the execution and delivery of this Agreement, the making of the
Loans and the issuance, renewal, amendment or extension of the Letters of Credit:
8.1
Corporate Status. Holdings, the Borrower and each Restricted Subsidiary (a) is a duly organized and validly existing corporation
or other entity in good standing under the laws of the jurisdiction of its organization or formation and has the corporate or other organizational
power and authority to own its property and assets and to transact the business in which it is engaged and (b) has duly qualified and
is authorized to do business and is in good standing (to the extent such concept is applicable in the corresponding jurisdiction) in all
jurisdictions where it is required to be so qualified, except, in the case of clauses (a) and (b), where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
8.2
Corporate Power and Authority; Enforceability. Each Credit Party has the corporate or other organizational power and authority
to execute, deliver and carry out the terms and provisions of the Credit Documents to which it is a party and has taken all necessary
corporate or other organizational action to authorize the execution, delivery and performance of the Credit Documents to which it is a
party. Each Credit Party has duly executed and delivered each Credit Document to which it is a party and each such Credit Document constitutes
the legal, valid and binding obligation of such Credit Party enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforceability of creditors’
rights generally and general principles of equity (whether considered in a proceeding in equity or law). Holdings, the Borrower and each
of the Restricted Subsidiaries (a) is in compliance with all Applicable Laws and (b) has all requisite governmental licenses, authorizations,
consents and approvals to operate its business as currently conducted except, in each case to the extent that failure to be in compliance
therewith or to have all such licenses, authorizations, consents and approvals could not reasonably be expected to have a Material Adverse
Effect.
8.3
No Violation. The execution, delivery and performance by any Credit Party of the Credit Documents to which it is a party
and compliance with the terms and provisions hereof and thereof will not (a) contravene any material applicable provision of any material
Applicable Law of any Governmental Authority, (b) result in any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation
under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets
of any of Holdings, the Borrower or any of the Restricted Subsidiaries (other than Liens created under the Credit Documents) pursuant
to, the terms of any indenture, loan agreement, lease agreement, mortgage or deed of trust or any other Contractual Obligation to which
Holdings, the Borrower or any of their Restricted Subsidiaries is a party or by which they or any of their property or assets is bound,
except to the extent that any such conflict, breach, contravention, default, creation or imposition could not reasonably be expected to
result in a Material Adverse Effect or (c) violate any provision of the Organizational Documents of Holdings, the Borrower or any of their
Restricted Subsidiaries.
8.4
Litigation. There are no actions, suits, investigations or proceedings (including Environmental Claims) pending or, to the
knowledge of Holdings or the Borrower, threatened, in either case with respect to Holdings, the Borrower or any of the Restricted Subsidiaries
that (a) involve any of the Credit Documents or (b) could reasonably be expected to result in a Material Adverse Effect.
8.5
Margin Regulations. Neither the making of any Loan hereunder nor the use of the proceeds thereof will violate the provisions
of Regulation T, Regulation U or Regulation X of the Board.
8.6
Governmental and Third Party Approvals. No order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any Governmental Authority or any other Person is required to authorize or is required
in connection with (a) the execution, delivery and performance of any Credit Document or (b) the legality, validity, binding effect or
enforceability of any Credit Document, except, in the case of either clause (a) or (b), (i) such orders, consents, approvals, licenses,
authorizations, validations, filings, recordings, registrations or exemptions as have been obtained or made and are in full force and
effect, (ii) filings and recordings in respect of Liens created pursuant to the Security Documents and (iii) such orders, consents, approvals,
licenses, authorizations, validations, filings, recordings, registrations or exemptions to the extent that failure to so receive could
not reasonably be expected to result in a Material Adverse Effect.
8.7
Investment Company Act. None of the Credit Parties is an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
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8.8
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True and Complete Disclosure.
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(a)
None of the written factual information or written factual data (taken as a whole) heretofore or contemporaneously furnished by
Holdings, the Borrower, any of their respective Subsidiaries or any of their respective authorized representatives in writing to any Agent
or any Lender on or before the Closing Date (including all such information contained in the Confidential Information Memorandum (and
all information incorporated by reference therein) and in the Credit Documents) for purposes of, or in connection with, this Agreement
or any transaction contemplated herein contained any untrue statement of material fact or omitted to state any material fact necessary
to make such information and data (taken as a whole) not materially misleading at such time (after giving effect to all supplements so
furnished from time to time) in light of the circumstances under which such information or data was furnished; it being understood and
agreed that for purposes of this Section 8.8(a), such factual information and data shall not include projections (including financial
estimates, forecasts and other forward- looking information), pro forma financial information or information of a general economic or
industry specific nature.
(b)
The projections contained in the information and data referred to in Section 8.8(a) were prepared in good faith based upon assumptions
believed by Holdings and the Borrower to be reasonable at the time made; it being recognized by the Agents and the Lenders that such projections
are as to future events and are not to be viewed as facts, the projections are subject to significant uncertainties and contingencies,
many of which are beyond the control of Holdings, the Borrower and the Restricted Subsidiaries, that no assurance can be given that any
particular projections will be realized and that actual results during the period or periods covered by any such projections may differ
from the projected results and such differences may be material.
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8.9
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Financial Statements.
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(a)
The Historical Financial Statements present fairly in all material respects the financial position and results of operations of
Wirepath Home Systems Holdco LLC (or the predecessor thereto) and its Subsidiaries at the respective dates of such information and for
the respective periods covered thereby and have been prepared in accordance with GAAP consistently applied, except to the extent provided
in the notes thereto, and subject, in the case of the unaudited financial information, to changes resulting from audit, normal year-end
audit adjustments and to the absence of footnotes and the inclusion of any explanatory note.
(b)
The unaudited pro forma consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of March 31, 2017 (including
any notes thereto) (the “Pro Forma Balance Sheet”) and the unaudited pro forma consolidated statement of operations
of the Borrower and its consolidated Subsidiaries for the 12 month period ending on March 31, 2017 (together with the Pro Forma Balance
Sheet, the “Pro Forma Financial Statements”), copies of which have heretofore been furnished to the Administrative
Agent, has been prepared giving pro forma effect (as if such events had occurred on such date or the beginning of such period, as the
case may be) to the consummation of all of the Transactions. The Pro Forma Financial Statements have been prepared in good faith based
upon assumptions believed by the Borrower to be reasonable as of the date of delivery thereof to the Administrative Agent, and, subject
to the qualifications and limitations contained in the notes attached thereto, present fairly in all material respects on a pro forma
basis, the estimated financial position of the Borrower and its consolidated Subsidiaries as at March 31, 2017 and their estimated results
of operations for the periods covered thereby, assuming that the events specified in the preceding sentence had actually occurred at such
date or at the beginning of the periods covered thereby; provided that it is understood that the Pro Forma Financial Statements
have not been prepared in compliance with Regulation S-X of the Securities Act, and/or do not include adjustments for purchase accounting
(including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business
Combinations (formerly SFAS 141R)), tax adjustments, deferred taxes or other similar pro forma adjustments.
Each
Lender and each Agent hereby acknowledges and agrees that the Borrower and its Subsidiaries may be required to restate the
Historical Financial Statements as the result of the implementation of changes in GAAP or the interpretation thereof, and that such
restatements will not result in a Default under the Credit Documents under Section 11.2 (including any effect on any conditions
required to be satisfied on the Closing Date) to the extent that the restatements do not reveal any material omission, misstatement
or other material inaccuracy in the reported information from actual results for any relevant prior period.
8.10
Tax Returns and Payments, Etc. (a) Holdings, the Borrower and each of the Restricted Subsidiaries have filed all U.S. federal
income tax returns and all other material tax returns, domestic and foreign, required to be filed by them and have paid all material taxes
and assessments payable by them that have become due, other than those not yet delinquent or being diligently contested in good faith
by appropriate proceedings and for which adequate reserves have been established on the applicable financial statements in accordance
with GAAP or the equivalent accounting principles in the relevant local jurisdiction and (b) each of Holdings, the Borrower and the Restricted
Subsidiaries have paid, or have provided adequate reserves (in the good-faith judgment of the management of the Borrower) in accordance
with GAAP or the equivalent accounting principles in the relevant local jurisdiction for the payment of, all material U.S. federal, state,
and foreign income taxes applicable for all prior fiscal years and for the current fiscal year to the Closing Date, except in the case
of either of clauses (a) or (b), to the extent that the failure to be in compliance therewith could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
8.11
Compliance with ERISA. Except as would not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect: (a) each Pension Plan is in compliance with ERISA, the Code and any Applicable Law; (b) no Reportable Event has occurred
(or is reasonably likely to occur); (c) no Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA (or
is reasonably likely to be insolvent), and no written notice of any such insolvency has been given to any of Holdings, the Borrower, any
of the Restricted Subsidiaries or any ERISA Affiliate; (d) none of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA
Affiliate has failed to satisfy the minimum funding standard under Section 412 of the Code and Section 302 of ERISA with respect to any
Pension Plan, or has otherwise failed to make a required contribution to a Multiemployer Plan, whether or not waived (or is reasonably
likely to fail to satisfy such minimum funding standard or make such required contribution); (e) no Pension Plan is, or is expected to
be, in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA and no Multiemployer Plan is,
or is expected to be, in “endangered or critical status” within the meaning of Section 432 of the Code or Section 305 of ERISA;
(f) none of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate has incurred (or is reasonably likely to
incur) any liability to or on account of a Pension Plan or Multiemployer Plan, as applicable, pursuant to Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code or has been notified in writing that it will incur
any liability under any of the foregoing Sections with respect to any Pension Plan or Multiemployer Plan; (g) no proceedings by the PBGC
have been instituted (or are reasonably likely to be instituted) to terminate or to reorganize any Pension Plan or Multiemployer Plan
or to appoint a trustee to administer any Pension Plan or Multiemployer Plan, and no written notice of any such proceedings has been given
to any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate; (h) the conditions for imposition of a Lien
that could be imposed under the Code or ERISA on the assets of any of Holdings, the Borrower, any of the Restricted Subsidiaries or any
ERISA Affiliate with respect to a Pension Plan do not exist (or are not reasonably likely to exist) nor has Holdings, the Borrower, any
of the Restricted Subsidiaries or any ERISA Affiliate been notified in writing that such a lien will be imposed on the assets of any of
Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate on account of any Pension Plan; and (i) each Foreign
Plan is in compliance with Applicable Laws (including funding requirements under such Applicable Laws), and no proceedings have been instituted
to terminate any Foreign Plan which would reasonably be expected to give rise to liability for Holdings, the Borrower or any Restricted
Subsidiary. No Pension Plan has an Unfunded Current Liability that would, individually or when taken together with any other liabilities
incurred or reasonably likely to be incurred by Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate as referenced
in this Section 8.11, be reasonably likely to have a Material Adverse Effect. With respect to Multiemployer Plans, the representations
and warranties in this Section 8.11, other than any made with respect to (i) liability under Section 4201 or 4204 of ERISA, (ii) any contribution
required to be made, or (iii) liability for termination of any such Multiemployer Plan under ERISA, are made to the best knowledge of
the Borrower.
8.12 Subsidiaries.
On the Closing Date, after giving effect to the Transactions, Holdings does not have any Subsidiaries other than the Subsidiaries
listed on Schedule 8.12. Schedule 8.12 sets forth, as of the Closing Date, after giving effect to the Transactions, the name and the
jurisdiction of organization of each Subsidiary and, as to each Subsidiary, the percentage of each class of Capital Stock owned by
any Credit Party and the designation of such Subsidiary as a Guarantor, a Restricted Subsidiary, an Unrestricted Subsidiary, a
Specified Subsidiary or an Immaterial Subsidiary. The Borrower does not own or hold, directly or indirectly, any Capital Stock of
any Person other than such Subsidiaries and Investments permitted by Section 10.5.
8.13
Intellectual Property. Each of Holdings, the Borrower and each of the Restricted Subsidiaries owns, has good and marketable
title to, or has a valid license or otherwise has the right to use, any and all Intellectual Property, that is used in, held for use in
or that is otherwise necessary for the operation of their respective businesses as currently conducted, free and clear of all Liens (other
than Liens permitted by Section 10.2), except where the failure to own, or have any such title, license or rights could not reasonably
be expected to have a Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse Effect, (i) to the
Borrower’s knowledge, the operation of the businesses conducted by each of the Borrower and the Restricted Subsidiaries, and the
Intellectual Property now employed by any of the Credit Parties does not infringe upon, misappropriate, or otherwise violate any Intellectual
Property rights owned by any other Person, and (ii) no material written claim has been received by Holdings, the Borrower, or any of the
Restricted Subsidiaries, and no litigation regarding the foregoing is pending or, to the Borrower’s knowledge, threatened in writing,
in either case against the Borrower or any of the Restricted Subsidiaries.
(a)
Except as could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, (i) Holdings,
the Borrower and each of the Restricted Subsidiaries are and have been in compliance with all Environmental Laws (including having obtained
and complied with all permits required under Environmental Laws for their current operations); (ii) to the knowledge of Holdings or the
Borrower, there are no facts, circumstances or conditions arising out of or relating to the operations of Holdings, the Borrower or any
of the Restricted Subsidiaries or any currently or formerly owned, operated or leased Real Property that would reasonably be expected
to result in Holdings, the Borrower or any of the Restricted Subsidiaries incurring liability under any Environmental Law; and (iii) none
of Holdings, the Borrower or any of the Restricted Subsidiaries has become subject to any pending or, to the knowledge of Holdings or
the Borrower, threatened Environmental Claim or, to the knowledge of the Borrower, any other liability under any Environmental Law.
(b)
None of Holdings, the Borrower or any of the Restricted Subsidiaries has treated, stored, transported or Released Hazardous Materials
at or from any currently or formerly owned, operated or leased Real Property in a manner that could reasonably be expected to have a Material
Adverse Effect.
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8.15
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Properties, Assets and Rights.
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(a)
As of the Closing Date and as of the date of each Credit Event thereafter, each of Holdings, the Borrower and each of the Restricted
Subsidiaries has good and marketable title to, valid leasehold interest in, or easements, licenses or other limited property interests
in, all properties (other than Intellectual Property) that are necessary for the operation of their respective businesses as currently
conducted, except where the failure to have such good title or interest in such property could not reasonably be expected to have a Material
Adverse Effect. None of such properties and assets is subject to any Lien, except for Liens permitted under Section 10.2.
(b)
Set forth on Schedule 8.15 hereto is a complete and accurate list of all Real Property owned in fee by the Credit Parties on the
Closing Date, showing as of the Closing Date the street address, county or other relevant jurisdiction, state and record owner thereof.
(c)
All permits required to have been issued or appropriate to enable all Real Property of the Credit Parties to be lawfully occupied
and used for all of the purposes for which they are currently occupied and used have been lawfully issued and are in full force and effect,
other than those permits the failure of which to be issued or to so enable lawful occupation and use could not reasonably be expected
to have a Material Adverse Effect.
8.16
Solvency. On the Closing Date after giving pro forma effect to the Transactions, the Credit Parties and their Subsidiaries
on a consolidated basis are Solvent.
8.17
Material Adverse Change. Since the Closing Date there have been no events or developments that have had or could reasonably
be expected to have a Material Adverse Effect.
8.18
Use of Proceeds. The proceeds of (a) the Initial Term Loans and the Initial Revolving Borrowing Amount shall be used (i)
on the Closing Date, together with cash on hand at the Target and its Subsidiaries and the proceeds from the Equity Contribution to pay
the Merger Consideration, the Existing Debt Refinancing and/or the Transaction Expenses and (ii) to the extent any proceeds remain after
the application described in clause (i), will be used on and after the Closing Date for other general corporate purposes of the Borrower
and its Subsidiaries and (b) Revolving Credit Loans available under any Revolving Credit Facility, together with the proceeds of the Swingline
Loans and the Letters of Credit, will be used for working capital requirements and other general corporate purposes of the Borrower and
its Subsidiaries, including the financing of acquisitions, other Investments and Restricted Payments and other distributions on account
of the Capital Stock of the Borrower (or any Parent Entity thereof), in each case permitted hereunder, and any other use not prohibited
hereby.
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8.19
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Anti-Corruption Laws.
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(a)
The Borrower and each other Credit Party and their respective Restricted Subsidiaries are in compliance with the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), except to the extent that
the failure to be in compliance would not reasonably be expected to result in a Material Adverse Effect.
(b)
None of the Borrower or any other Credit Party will use the proceeds of the Loans or the Letters of Credit or otherwise make available
such proceeds to any Person for the purposes of any payments to any governmental official or employee, political party, official of a
political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business
or obtain any improper advantage, in violation of the FCPA.
(a)
None of the Borrower, any other Credit Party or any of their respective Restricted Subsidiaries is currently the target of any
U.S. sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)
of the U.S. Treasury Department or the U.S. Department of State.
(b)
None of the Borrower or any other Credit Party will use the proceeds of the Loans or the Letters of Credit or otherwise make available
such proceeds to any Person for use in any manner that will result in a violation by any Lender of any U.S. sanctions administered by
OFAC or the U.S. Department of State.
8.21
PATRIOT Act. Except to the extent as could not reasonably be expected to have a Material Adverse Effect, neither the Borrower
nor any other Credit Party is in violation of any Applicable Laws relating to money laundering, including the USA PATRIOT Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT ACT”).
8.22
Labor Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect: (a) there are no strikes or other labor disputes against any of the Borrower or the Restricted Subsidiaries pending or, to the
knowledge of the Borrower, threatened in writing and (b) none of the Borrower or the Restricted Subsidiaries have been in violation of
the Fair Labor Standards Act or any other Applicable Laws dealing with wage and hour matters.
8.23
Subordination of Junior Financing. The Obligations are “Designated Senior Debt” (if applicable), “Senior
Debt”, “Senior Indebtedness”, “Guarantor Senior Debt” or “Senior Secured Financing” (or any
comparable term) under, and as defined in, any indenture or document governing any Junior Debt.
8.24
No Default. As of the date of any Credit Event after the Closing Date, no Default has occurred and is continuing.
SECTION 9. Affirmative Covenants. The Borrower (and, in the case of Section 9.14, Holdings) hereby covenants and agrees that, on the Closing
Date and thereafter, until the Total Commitment and all Letters of Credit have terminated (unless such Letters of Credit have been Cash
Collateralized on the terms and conditions set forth in Section 3.8) and the Loans and Unpaid Drawings, together with interest, fees and
all other Obligations Incurred hereunder (other than Hedging Obligations under Secured Hedging Agreements, Cash Management Obligations
under Secured Cash Management Agreements and contingent indemnification obligations and other contingent obligations not then due and
payable), are paid in full:
9.1
Information Covenants. The Borrower will furnish to the Administrative Agent for prompt further distribution to each Lender:
(a)
Annual Financial Statements. As soon as available and in any event on or before the date that is 120 days after the end
of each fiscal year (or, in the case of the fiscal year ended December 31, 2017, the date that is 150 days after the end of such fiscal
year), the consolidated balance sheet of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and its Restricted
Subsidiaries, in each case as at the end of such fiscal year, and the related consolidated statement of income and cash flows for such
fiscal year, setting forth for each fiscal year (other than the fiscal year ended December 31, 2017 (with respect to which, for the avoidance
of doubt, no comparative consolidated figures or reconciliations will be required)) comparative consolidated figures for the preceding
fiscal year (or, in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation,
reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and its consolidated
Subsidiaries, on the other hand), all in reasonable detail and prepared in all material respects in accordance with GAAP (except as otherwise
disclosed in such financial statements) and, except with respect to any such reconciliation, reported on by independent registered public
accountants of recognized national standing with an unmodified report by such independent registered public accountants without an emphasis
of matter paragraph related to going concern as defined by Statement on Accounting Standards AU-C Section 570 “The Auditor’s
Consideration of an Entity’s Ability to Continue as a Going Concern” (or any similar statement under any amended or successor
rule as may be adopted by the Auditing Standards Board from time to time) (other than solely with respect to, or expressly resulting solely
from, an upcoming maturity date under the documentation governing any Indebtedness), and, for the avoidance of doubt, without modification
as to the scope of audit, together in any event with a certificate of such accounting firm stating that in the course of its regular audit
of the business of the Borrower and its consolidated Subsidiaries, which audit was conducted in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge of any Event of Default relating to the Financial Performance Covenant that
has occurred and is continuing or, if in the opinion of such accounting firm such an Event of Default has occurred and is continuing,
a statement as to the nature thereof. Notwithstanding the foregoing, the obligations in this Section 9.1(a) may be satisfied with respect
to financial information of the Borrower and its consolidated Subsidiaries by furnishing (A) the applicable financial statements of Holdings
(or any Parent Entity of Holdings), (B) the Borrower’s or Holdings’ (or any Parent Entity thereof), as applicable, Form 10-K
filed with the SEC or (C) following an election by the Borrower pursuant to the definition of “GAAP”, the applicable financial
statements shall be determined in accordance with IFRS; provided that, with respect to each of clauses (A) and (B), (i) to the
extent such information relates to Holdings (or such Parent Entity), such information is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and
the information relating to the Borrower and its consolidated Subsidiaries on a standalone basis, on the other hand and (ii) to the extent
such information is in lieu of information required to be provided under the first sentence of this Section 9.1(a), such materials shall
be reported on by an independent registered public accounting firm of recognized national standing, with an unmodified report by such
independent registered public accountants without an emphasis of matter paragraph related to going concern as defined by Statement on
Accounting Standards AU-C Section 570 “The Auditor’s Consideration of an Entity’s Ability to Continue as a Going Concern”
(or any similar statement under any amended or successor rule as may be adopted by the Auditing Standards Board from time to time) (other
than solely with respect to, or expressly resulting solely from, an upcoming maturity date under the documentation governing any Indebtedness)
(it being understood that there shall be no obligation to audit any such consolidating information), and, for the avoidance of doubt,
without modification as to the scope of audit.
(b)
Quarterly Financial Statements. As soon as available and in any event on or before the date that is 45 days after the end
of each of the first three quarterly accounting periods in each fiscal year of the Borrower (or, in the case of each of the quarters ending
September 30, 2017, March 31, 2017 and June 30, 2017, the date that is 60 days after the end of such quarter), the consolidated balance
sheet of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case
as at the end of such quarterly period and the related consolidated statement of income for such quarterly accounting period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly period, and the related consolidated statement of cash flows
for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting forth (other than for the quarterly
periods ending September 30, 2017, March 31, 2017 and June 30, 2017 (with respect to which, for the avoidance of doubt, no comparative
consolidated figures or reconciliations will be required)) comparative consolidated figures for the related periods in the prior fiscal
year or, in the case of such consolidated balance sheet, for the last day of the prior fiscal year (or in lieu of such financial statements
of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and
the Restricted Subsidiaries, on the one hand, and the Borrower and its consolidated Subsidiaries on the other hand), all in reasonable
detail and all of which shall be certified by an Authorized Officer of the Borrower as fairly presenting in all material respects the
financial condition, results of operations and cash flows of the Borrower and its consolidated Subsidiaries (and, if applicable, the Borrower
and the Restricted Subsidiaries) in accordance with GAAP, subject to changes resulting from audit and normal year-end audit adjustments
and to the absence of footnotes and the inclusion of any explanatory note. Notwithstanding the foregoing, the obligations in this Section
9.1(b) may be satisfied with respect to financial information of the Borrower and its consolidated Subsidiaries by furnishing (A) the
applicable financial statements of Holdings (or any Parent Entity thereof) or (B) the Borrower’s or Holdings’ (or any Parent
Entity thereof), as applicable, Form 10-Q filed with the SEC; provided that, with respect to each of clauses (A) and (B), to the
extent such information relates to Holdings (or any such Parent Entity), such information is accompanied by consolidating information
that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand,
and the information relating to the Borrower and its consolidated Subsidiaries on a standalone basis (and, if different, the Borrower
and the Restricted Subsidiaries), on the other hand.
(c)
Budget. No later than five Business Days following the delivery by the Borrower of the financial statements required under
Section 9.1(a), beginning at the time of the delivery of such financial statements for the fiscal year ending December 31, 2017, a detailed
quarterly budget of the Borrower and its Restricted Subsidiaries in reasonable detail for the current fiscal year as customarily prepared
by management of the Borrower for its internal use (but including, in any event, only a projected consolidated statement of income of
the Borrower and its Restricted Subsidiaries for the current fiscal year and not a projected consolidated balance sheet or statement
of projected cash flow) and setting forth the principal assumptions upon which such budget is based (provided, that no such budgets
shall be required to be delivered for the fiscal year which began January 1, 2017). It is understood and agreed that any financial or
business projections furnished by any Credit Party (i)(A) are subject to significant uncertainties and contingencies, which may be beyond
the control of the Credit Parties, (B) no assurance is given by the Credit Parties that the results or forecast in any such projections
will be realized and (C) the actual results may differ from the forecast results set forth in such projections and such differences may
be material and (ii) are not a guarantee of performance.
(d) Officer’s
Certificates. No later than five Business Days following the delivery of the financial statements provided for in Sections
9.1(a) and 9.1(b), a certificate of an Authorized Officer of the Borrower to the effect that no Default or Event of Default exists
or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i)
during any fiscal quarter during which the Financial Performance Covenant is applicable, the calculations required to establish
whether the Borrower was in compliance with the provisions of the Financial Performance Covenant as at the end of such fiscal year
or period, as the case may be, beginning with the fiscal period ending December 31, 2017, if required, (ii) a specification of any
change in the identity of the Guarantors, the Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries,
the Immaterial Subsidiaries and the Foreign Subsidiaries as at the end of such fiscal year or period, as the case may be, from the
Guarantors, Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the
Foreign Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent fiscal year or period, as the
case may be, and (iii) the then applicable Applicable Margins and Commitment Fee Rate. At the time of the delivery of the financial
statements provided for in Section 9.1(a) beginning with the fiscal year ended December 31, 2018, a certificate of an Authorized
Officer of the Borrower setting forth in reasonable detail the calculation of Excess Cash Flow, the Available Amount and the
Available Equity Amount as at the end of the fiscal year to which such financial statements relate.
(e)
Notice of Certain Events. Promptly after an Authorized Officer of Holdings, the Borrower or any of its Restricted Subsidiaries
obtains knowledge thereof, notice of the occurrence of (i) any event that constitutes a Default or an Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and what action Holdings or the Borrower proposes to take with respect thereto,
and (ii) any litigation or governmental proceeding pending against Holdings, the Borrower or any of its Restricted Subsidiaries that could
reasonably be expected to result in a Material Adverse Effect.
(f)
Other Information. (i) Promptly upon filing thereof, (x) copies of any annual, quarterly and other regular, material periodic
and special reports (including on Form 10-K, 10-Q or 8-K) and registration statements which Holdings (or any Parent Entity thereof), the
Borrower or any Restricted Subsidiary files with the SEC or any analogous Governmental Authority in any relevant jurisdiction (other than
amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered to
the Administrative Agent for further delivery to the Lenders), exhibits to any registration statement and, if applicable, any registration
statements on Form S-8 and other than any filing filed confidentiality with the SEC or any analogous Governmental Authority in any relevant
jurisdiction) and (y) copies of all financial statements, proxy statements, and material reports that Holdings, the Borrower or any of
the Restricted Subsidiaries shall send to the holders of any publicly issued debt of Holdings, the Borrower and/or any of the Restricted
Subsidiaries in their capacity as such holders (in each case to the extent not theretofore delivered to the Administrative Agent for further
delivery to the Lenders pursuant to this Agreement) and (ii) with reasonable promptness, but subject to the limitations set forth in the
last sentence of Section 9.2 and Section 13.16, such other information (financial or otherwise) as the Administrative Agent on its own
behalf or on behalf of any Lender may reasonably request in writing from time to time.
Documents required to be delivered
pursuant to Sections 9.1(a), 9.1(b) and 9.1(f)(i) may be delivered electronically and if so delivered, shall be deemed to have been delivered
on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet
at the website address listed on Schedule 13.2 or (ii) on which such documents are transmitted by electronic mail to the Administrative
Agent; provided that: (A) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents
to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given
by the Administrative Agent and (B) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent
of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies
of the certificates required by Section 9.1(d) to the Administrative Agent. Each Lender shall be solely responsible for timely accessing
posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of
such documents.
9.2 Books,
Records and Inspections. The Borrower will, and will cause each of the Restricted Subsidiaries to, maintain proper books of
record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP
consistently applied shall be made of all material financial transactions and matters involving the assets and business of Holdings,
the Borrower or such Restricted Subsidiary, as the case may be. The Borrower will, and will cause each of the Restricted
Subsidiaries to, permit representatives and independent contractors of the Administrative Agent and the Required Lenders to visit
and inspect any of its properties (to the extent it is within such Person’s control to permit such inspection), to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all at the reasonable expense of the Borrower and at such
reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the
Borrower (and subject, in the case of any such meetings or advice from such independent accountants, to such accountants’
customary policies and procedures); provided that, excluding any such visits and inspections during the continuation of an
Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the
Required Lenders under this Section 9.2 and the Administrative Agent shall not exercise such rights more often than once during any
calendar year absent the existence of an Event of Default at the Borrower’s expense; and provided, further, that
when an Event of Default exists, the Administrative Agent or the Required Lenders (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and
upon reasonable advance notice. The Administrative Agent and the Required Lenders shall give the Borrower the opportunity to
participate in any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in
Section 9.1 or this Section 9.2, none of Holdings, the Borrower or any Restricted Subsidiary will be required to disclose, permit
the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that
constitutes non-financial trade secrets or non- financial proprietary information, (ii) in respect of which disclosure to any Agent
or any Lender (or their respective representatives or contractors) is prohibited by Applicable Law or any binding agreement or (iii)
that is subject to attorney-client or similar privilege or constitutes attorney work product.
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9.3
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Maintenance of Insurance.
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(a)
The Borrower will, and will cause each of the Restricted Subsidiaries to, at all times maintain in full force and effect, with
insurance companies that the Borrower believes (in the good-faith judgment of the management of the Borrower) are financially sound and
responsible at the time the relevant coverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance
which the Borrower believes (in the good-faith judgment of management of the Borrower) is reasonable and prudent in light of the size
and nature of its business) and against at least such risks (and with such risk retentions) as are usually insured against in the same
general area by companies engaged in businesses similar to those engaged by the Borrower and the Restricted Subsidiaries; and will furnish
to the Administrative Agent for further delivery to the Lenders, upon written request from the Administrative Agent, information presented
in reasonable detail as to the insurance so carried. The Collateral Agent, for the benefit of the Secured Parties, shall be the additional
insured on any such liability insurance and the Collateral Agent, for the benefit of the Secured Parties, shall be the additional loss
payee or additional mortgagee under any such casualty or property insurance, except in each case as the Collateral Agent and the Borrower
may otherwise agree.
(b)
If any buildings or improvements comprising of any Mortgaged Property are at any time located in an area identified by the Federal
Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made
available under the Flood Insurance Laws, then the Borrower shall, or shall cause the applicable Credit Parties to, solely to the extent
required by Applicable Law, (i) maintain, or cause to be maintained, with a financially sound and reputable insurer (determined at the
time such insurance is obtained or renewed), flood insurance in an amount and otherwise sufficient to comply with all applicable rules
and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Collateral Agent evidence of such compliance
in form reasonably acceptable to the Collateral Agent.
9.4
Payment of Taxes. The Borrower will pay and discharge, and will cause each of the Restricted Subsidiaries to pay and discharge,
all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which such payments become overdue, and all lawful material claims in respect of taxes imposed,
assessed or levied that, if unpaid, could reasonably be expected to become a material Lien upon any properties of the Borrower or any
of the Restricted Subsidiaries, except to the extent that the failure to do so could not reasonably be expected to result in a Material
Adverse Effect; provided that none of the Borrower or any of the Restricted Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim that is being diligently contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good-faith judgment of the management of the Borrower) with respect thereto in accordance with GAAP or the equivalent
accounting principles in the relevant local jurisdiction.
9.5 Consolidated
Corporate Franchises. The Borrower will do, and will cause each of the Restricted Subsidiaries to do, or cause to be done, all
things necessary to preserve and keep in full force and effect its existence, corporate rights, privileges and authority, except to
the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect; provided, however,
that the Borrower and the Restricted Subsidiaries may consummate any transaction permitted under Section 10.3, 10.4 or 10.5.
9.6 Compliance
with Statutes. The Borrower will, and will cause each Restricted Subsidiary to (a) comply with all Applicable Laws, rules, regulations
and orders applicable to it or its property, including, without limitation, (i) the FCPA, (ii) applicable Sanctions and (iii) the PATRIOT
Act, and (b) maintain in effect all governmental approvals or authorizations required to conduct its business, except in the case of
each of clauses (a) and (b), where the failure to do so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.
9.7 ERISA.
As soon as reasonably practicable after the Borrower or any of the Restricted Subsidiaries or any ERISA Affiliate knows or has reason
to know of the occurrence of any of the following events that, individually or in the aggregate (including in the aggregate such events
previously disclosed or exempt from disclosure hereunder, to the extent the liability therefor remains outstanding), would be reasonably
likely to have a Material Adverse Effect, the Borrower will deliver to the Administrative Agent a certificate of an Authorized Officer
or any other senior officer of the Borrower setting forth details as to such occurrence and the action, if any, that the Borrower, such
Restricted Subsidiary or such ERISA Affiliate is required or proposes to take, together with any notices (required, proposed or otherwise)
given to or filed with or by the Borrower, such Restricted Subsidiary, such ERISA Affiliate, the PBGC, or a Multiemployer Plan administrator
(provided that if such notice is given by the Multiemployer Plan administrator, it is given to any of the Borrower or any of the
Restricted Subsidiaries or any ERISA Affiliates thereof): (a) that a Reportable Event has occurred; (b) that there has been a failure
to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA or an application is to be made to the
Secretary of the Treasury for a waiver or modification of the minimum funding standard (including any required installment payments)
or an extension of any amortization period under Section 412 of the Code with respect to a Pension Plan; (c) that a Pension Plan having
an Unfunded Current Liability has been or is to be terminated under Title IV of ERISA (including the giving of written notice thereof);
(d) that a Pension Plan has an Unfunded Current Liability that has or will result in a Lien under ERISA or the Code on the assets of
any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate; (e) that proceedings will be or have been instituted
by the PBGC to terminate a Pension Plan having an Unfunded Current Liability (including the giving of written notice thereof); (f) that
a proceeding has been instituted against the Borrower, a Restricted Subsidiary thereof or an ERISA Affiliate pursuant to Section 515
of ERISA to collect a delinquent contribution to a Multiemployer Plan; (g) that the PBGC has notified the Borrower, any Restricted Subsidiary
thereof or any ERISA Affiliate of its intention to appoint a trustee to administer any Pension Plan; (h) that the Borrower, any Restricted
Subsidiary thereof or any ERISA Affiliate has failed to make any required contribution or payment to a Multiemployer Plan; (i) that a
determination has been made that any Pension Plan is in “at-risk” status within the meaning of Section 430 of the Code or
Section 303 of ERISA or any Multiemployer Plan is in “endangered or critical status” within the meaning of Section 432 of
the Code or Section 305 of ERISA; (j) that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred (or has
been notified in writing by a Multiemployer Plan administrator that it will incur) any liability (including any contingent or secondary
liability) to or on account of a Pension Plan or Multiemployer Plan pursuant to Section 409, 502(i) 502(l), 515, 4062, 4063, 4064, 4069,
4201 or 4204 of ERISA or Section 4971 or 4975 of the Code; (k) that a Pension Plan or Multiemployer Plan is “insolvent” within
the meaning of Section 4245 of ERISA; (l) that the termination of any Foreign Plan has occurred that gives rise to liability for Holdings,
the Borrower or any Restricted Subsidiary; or (m) that any non- compliance with any funding requirements under Applicable Law for any
Foreign Plan has occurred. Such certificate and notice shall be provided as soon as reasonably practicable after the Borrower, any Restricted
Subsidiary or any ERISA Affiliate knows or has reason to know of the occurrence of any such event.
9.8 Good
Repair. The Borrower will, and will cause each of the Restricted Subsidiaries to, ensure that its properties and equipment used or
useful in its business in whomsoever’s possession they may be to the extent that it is within the control of such party to cause
same, are kept in good repair, working order and condition, normal wear and tear excepted, and that from time to time there are made
in such properties and equipment all needful and proper repairs, renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner customary for companies in the industry in which the Borrower and the Restricted Subsidiaries
conduct business and consistent with third party leases, except in each case to the extent the failure to do so could not be reasonably
expected to have a Material Adverse Effect.
9.9 End
of Fiscal Years; Fiscal Quarters. The Borrower will, for financial reporting purposes, cause (a) each of its, and each of the Restricted
Subsidiaries’, fiscal years to end on December 31 of each year and (b) each of its, and each of the Restricted Subsidiaries’,
fiscal quarters to end on dates consistent with such fiscal year-end and the Borrower’s past practice; provided, however,
that the Borrower may, upon written notice to, and consent by, the Administrative Agent, change the financial reporting convention specified
above to any other financial reporting convention reasonably acceptable to the Administrative Agent, in which case the Borrower and the
Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in
order to reflect such change in financial reporting.
9.10 Additional
Guarantors and Grantors. Subject to any applicable limitations set forth in the Guarantee, the Security Agreement, the Pledge Agreement
or any other Security Document, as applicable, the Borrower will cause (i) any direct or indirect Domestic Subsidiary of the Borrower
(other than any Excluded Subsidiary) formed or otherwise purchased or acquired after the Closing Date (including pursuant to an Acquisition)
and (ii) any Domestic Subsidiary of the Borrower that ceases to be an Excluded Subsidiary, to promptly execute and deliver to the Collateral
Agent (A) a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement substantially in the form of Annex B,
Exhibit 1 or Annex A, as applicable, to the respective agreement in order to become a Guarantor under the Guarantee, a grantor under
the Security Agreement and a pledgor under the Pledge Agreement, (B) a counterpart signature page to the Intercompany Note, and (C) a
joinder agreement or such comparable documentation to each other applicable Security Document, substantially in the form annexed thereto,
and to take all actions required thereunder to perfect the Liens created thereunder.
9.11 Pledges of Additional Stock and Evidence of Indebtedness.
(a) Subject
to any applicable limitations set forth in the Security Documents, as applicable, the Borrower will pledge, and, if applicable, will
cause each other Subsidiary Guarantor (or a Person required to become a Subsidiary Guarantor pursuant to Section 9.10) to pledge, to
the Collateral Agent for the benefit of the Secured Parties, (i) all the Capital Stock (other than any Excluded Capital Stock) of each
Subsidiary owned by the Borrower or any Subsidiary Guarantor (or Person required to become a Subsidiary Guarantor pursuant to Section
9.10), in each case, formed or otherwise purchased or acquired after the Closing Date, pursuant to a supplement to the Pledge Agreement
substantially in the form of Annex A thereto and (ii) except with respect to intercompany Indebtedness, all evidences of Indebtedness
for borrowed money in a principal amount in excess of $5,000,000 (individually) that are owing to the Borrower or any Subsidiary Guarantor
(or Person required to become a Subsidiary Guarantor pursuant to Section 9.10) (which shall be evidenced by a promissory note), in each
case pursuant to a supplement to the Pledge Agreement substantially in the form of Annex A thereto.
(b) The
Borrower agrees that all Indebtedness of the Borrower and each of its Restricted Subsidiaries that is owing to any Credit Party (or a
Person required to become a Subsidiary Guarantor pursuant to Section 9.10) shall be evidenced by the Intercompany Note, which promissory
note shall be required to be pledged to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge Agreement.
9.12 Use
of Proceeds. The proceeds of the Initial Term Loans and the Initial Revolving Borrowing Amount shall be used (a) on the Closing
Date, together with cash on hand at the Target and its Subsidiaries and the proceeds from the Equity Contribution to pay the Merger
Consideration, the Existing Debt Refinancing and/or the Transaction Expenses and (b) to the extent any proceeds remain after the
application described in clause (a), on and after the Closing Date, for other general corporate purposes of the Borrower and its
Subsidiaries. The proceeds of the Revolving Credit Loans available under any Revolving Credit Facility, together with the proceeds
of the Swingline Loans and the Letters of Credit, will be used for working capital requirements and other general corporate purposes
of the Borrower and its Subsidiaries, including the financing of acquisitions, other Investments and Restricted Payments and other
distributions on account of the Capital Stock of the Borrower (or any Parent Entity thereof), in each case permitted hereunder, and
any other use not prohibited hereby. The proceeds of any Incremental Term Loan Facility, the proceeds of any Revolving Credit Loans
made pursuant to any Incremental Revolving Credit Commitment Increase and the proceeds of any Additional/Replacement Revolving
Credit Loans or Extended Revolving Credit Loans made pursuant to any Additional/Replacement Revolving Credit Commitments or Extended
Revolving Credit Commitments, as applicable, may be used for working capital requirements and other general corporate purposes of
the Borrower and its Subsidiaries including the financing of acquisitions, other Investments and Restricted Payments and other
distributions on account of the Capital Stock of the Borrower (or any Parent Entity thereof), in each case permitted hereunder, and
any other use not prohibited hereby.
9.13
Changes in Business. The Borrower and its Restricted Subsidiaries, taken as a whole, will not fundamentally and substantively
alter the character of their business, taken as a whole, from the business conducted by the Borrower and its Restricted Subsidiaries,
taken as a whole, on the Closing Date and other similar, incidental, ancillary, supportive, complementary, synergetic or related businesses
or reasonable extensions thereof (and non- core incidental businesses acquired in connection with any Acquisition or Investment or other
immaterial businesses).
9.14 Further
Assurances.
(a) Subject
to the limitations set forth in this Agreement and the Security Documents, Holdings and the Borrower will, and will cause each other
Subsidiary Guarantor to, execute any and all further documents, financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture filings, Mortgages and other similar documents), that may
be required under any Applicable Law, or that the Collateral Agent or the Required Lenders may reasonably request, in order to grant,
preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Security Documents,
all at the expense of the Borrower and its Restricted Subsidiaries.
(b) Subject
to any applicable limitations set forth in the Security Documents and in Sections 9.10 and 9.11, (i) if any Material Real Property is
acquired by any Credit Party after the Closing Date or, (ii) if any Credit Party that becomes a Credit Party after the Closing Date owns
any Material Real Property, the Borrower will notify the Collateral Agent (who shall thereafter notify the Lenders) thereof and will,
within 90 days after the acquisition of such Material Real Property or within 90 days of the date on which the applicable Credit Party
became a Credit Party, as applicable, (or such longer period as may be agreed by the Collateral Agent in its sole discretion), cause
such Material Real Property to be subjected to a Mortgage (provided, however, that, in the event any Material Real Property
subject to a Mortgage under this Section is located in a jurisdiction that imposes mortgage recording taxes or any similar fees or charges,
such Mortgage shall only secure an amount equal to the Fair Market Value of such Material Real Property) and will take, and cause the
Subsidiary Guarantors to take, such other actions as shall be necessary or reasonably requested by the Collateral Agent to grant and
perfect a Lien on such Material Real Property consistent with the applicable requirements of the Security Documents, including actions
described in Section 9.14(a) and Section 9.14(c), all at the expense of the Credit Parties.
(c) Any
Mortgage delivered to the Collateral Agent in accordance with Sections 9.14(b) shall be accompanied by:
(i) (i) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect
to each Mortgaged Property and with respect to each Mortgaged Property that is: (x) in an area designated by the Federal Emergency Management
Agency as being located in a special flood hazard area, and (y) contains “improved real estate” or a “mobile home”
(as defined by the Flood Insurance Laws) within such special flood hazard area (a “Flood Hazard Property”), (ii) Borrower’s
written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such asset is a Flood Hazard Property
and as to whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program and
(iii) evidence of flood insurance in form and substance reasonably satisfactory to the Collateral Agent and in an amount required by Section
9.3(b) (collectively, the “Flood Documents”); provided that the Flood Documents shall be delivered to the Collateral
Agent in accordance with Section 9.14(f);
(ii) a
policy or policies of title insurance or a marked unconditional commitment or binder thereof issued by a nationally recognized title
insurance company insuring title to such Mortgaged Property is vested in such Credit Party for an amount not to exceed the Fair Market
Value (determined at the time described in Section 9.14(b) above) and together with such endorsements as the Collateral Agent may reasonably
request and which are available at commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property is located;
(iii) unless
the Collateral Agent shall have otherwise agreed, but only to the extent already prepared and otherwise available, either (A) a
survey of the applicable Mortgaged Property for which all necessary fees (where applicable) have been paid (1) prepared by a
surveyor reasonably acceptable to the Collateral Agent, (2) dated or re-certificated not earlier than three months prior to the date
of such delivery or such other date as may be reasonably satisfactory to the Collateral Agent in its sole discretion, (3) for
Mortgaged Property situated in the United States, certified to the Collateral Agent and the title insurance company issuing the
title insurance policy for such Mortgaged Property pursuant to clause (ii), which certification shall be reasonably acceptable to
the Collateral Agent and (4) for Mortgaged Property situated in the United States, complying with current “Minimum Standard
Detail Requirements for ALTA/NSPS Land Title Surveys,” jointly established and adopted by American Land Title Association,
the American Congress on Surveying and Mapping and the National Society of Professional Surveyors (except for such deviations as are
acceptable to the Collateral Agent) or (B) coverage under the title insurance policy or policies referred to in clause (ii) above
that does not contain a general exception for survey matters and which contains survey-related endorsements reasonably acceptable to
the Collateral Agent; and
(iv) opinions
of counsel to the Credit Party mortgagor with respect to the enforceability, due authorization, execution and delivery of the applicable
Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Collateral Agent.
(d) Notwithstanding
anything herein to the contrary, if the Collateral Agent and the Borrower reasonably determine in writing that the time or cost of creating
or perfecting any Lien on any property (including the time and cost required to obtain the flood insurance required under Section 9.14(c)(i))
is excessive in relation to the benefits afforded to the Lenders thereby, then such property may be excluded from the Collateral for
all purposes of the Credit Documents.
(e) Notwithstanding
anything herein to the contrary, the Credit Parties shall not be required to take any actions outside the United States, to (i) create
any security interest in assets titled or located outside the United States, or (ii) perfect or make enforceable any security interests
in any Collateral.
(f) Notwithstanding
anything contained in this Agreement to the contrary, at least twenty days prior to the date on which any Mortgage shall be executed
and delivered with respect to any Material Real Property, the Borrower (or such other applicable Credit Party) shall deliver the Flood
Documents with respect to such Material Real Property to the Collateral Agent for prompt distribution to each Revolving Credit Lender;
provided that (x) each Revolving Credit Lender shall advise the Collateral Agent promptly upon completion of its flood insurance
diligence and compliance and (y) if any Revolving Credit Lender has notified the Collateral Agent in writing (who shall promptly notify
the Borrower) during such twenty day period commencing from the date on which such Revolving Credit Lender receives the Flood Documents
that its flood insurance diligence and compliance has not been completed, the relevant Credit Party shall instead execute and deliver
such Mortgage within three Business Days of receipt of written notice from the Collateral Agent (from the date of notice from such Revolving
Credit Lender to the Collateral Agent) that such flood insurance diligence is complete (or such longer period as may be agreed by the
Collateral Agent in its sole discretion); provided, further that (i) no delay in the execution by any Credit Party of any
Mortgage as a result of the application of, and compliance with, this sentence shall result in a breach of any obligation or the occurrence
of a Default or Event of Default hereunder or under any other Credit Document and (ii) for the avoidance of doubt, in no event shall
the application of, and compliance with, this sentence require the delivery of Mortgages or any other related documentation or deliverables
prior to the date that is 90 days after the acquisition of such Material Real Property or within 90 days of the date on which the applicable
Credit Party became a Credit Party, as applicable.
9.15 Designation
of Subsidiaries. The Board of Directors of the Borrower may at any time designate any Restricted Subsidiary as an Unrestricted
Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that immediately before and after such
designation, no Event of Default shall have occurred and be continuing. The designation of any Subsidiary as an Unrestricted
Subsidiary after the Closing Date shall constitute an Investment by the Borrower therein at the date of designation in an amount
equal to the Fair Market Value of the Borrower’s Investment therein. The designation of any Unrestricted Subsidiary as a
Restricted Subsidiary shall constitute the Incurrence at the time of designation of any Investment, Indebtedness or Liens of such
Subsidiary existing at such time. Upon any such designation of any Unrestricted Subsidiary as a Restricted Subsidiary (but without
duplication of any amount reducing such Investment in such Unrestricted Subsidiary pursuant to the definition of
“Investment” or the definition of “Available Amount”), the Borrower and/or the applicable Restricted
Subsidiaries shall receive a credit against the applicable clause in Section 10.5 or Section 10.6 that was utilized for the
Investment in such Unrestricted Subsidiary for all Returns in respect of such Investment.
9.16 Maintenance
of Ratings. The Borrower will use commercially reasonable efforts to cause the public credit rating for the Initial Term Loan Facility
issued by S&P and the public credit rating for the Initial Term Loan Facility issued by Moody’s, and the Borrower’s public
corporate credit rating issued by S&P and public corporate credit rating issued by Moody’s to each be maintained (but not to
obtain or maintain a specific rating).
9.17 Post-Closing
Obligations. To the extent not executed and delivered on the Closing Date, unless otherwise agreed by the Administrative Agent in
its reasonable discretion, execute and deliver the documents and complete the tasks set forth on Schedule 9.17, in each case within the
time limits specified on such schedule (or such later time as the Administrative Agent shall agree in its reasonable discretion).
SECTION 10.
Negative Covenants. The Borrower (and, with respect to Section 10.9, Holdings) hereby covenants and agrees that on the Closing
Date and thereafter, until the Total Commitment and all Letters of Credit have terminated (unless such Letters of Credit have been Cash
Collateralized on terms and conditions set forth in Section 3.8) and the Loans and Unpaid Drawings, together with interest, fees and all
other payment Obligations (other than Hedging Obligations under Secured Hedging Agreements, Cash Management Obligations under Secured
Cash Management Agreements or contingent indemnification or other contingent obligations not then due and payable), are paid in full:
10.1 Limitation
on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, Incur,
contingently or otherwise, with respect to any Indebtedness, except:
(a) (i)
Indebtedness arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Agreement Refinancing
Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(b) [Reserved];
(c) (i)
Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letters of credit,
warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice (including in
respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or
self- insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims, health, disability
or other employee benefits or property, casualty or liability insurance or self-insurance) and (ii) Indebtedness supported by Letters
of Credit or other letters of credit under similar facilities in an amount not to exceed the Stated Amount of such Letters of Credit
or stated amount of such other letters of credit under such similar facilities;
(d) Except
as otherwise limited by clauses (a), (b), (h) and (u) of this Section 10.1, Guarantee Obligations Incurred by (i) any Restricted Subsidiary
in respect of Indebtedness of the Borrower or any other Restricted Subsidiary that is permitted to be Incurred under this Agreement and
(ii) the Borrower in respect of Indebtedness of any Restricted Subsidiary that is permitted to be Incurred under this Agreement; provided
that, if the applicable Indebtedness is subordinated to the Obligations, any such Guarantee Obligations shall be subordinated to
the Obligations;
(e) Guarantee
Obligations Incurred in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors, licensees,
sublicensees or distribution partners;
(f) (i)
Indebtedness (including Financing Lease Obligations and other Indebtedness arising under mortgage financings and purchase money Indebtedness
(including any industrial revenue bond, industrial development bond or similar financings)) the proceeds of which are used to finance
the acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of fixed
or capital assets or otherwise Incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is Incurred concurrently
with or within 270 days after the completion of the applicable acquisition, development, construction, repair, restoration, replacement,
maintenance, upgrade, expansion or improvement or the making of the applicable Capital Expenditure and (B) such Indebtedness is not Incurred
to acquire Capital Stock of any Person; provided, further, that, at the time of Incurrence thereof and after giving pro
forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant
to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect
of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”,
exceed an amount equal to (I) the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries
for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred
based upon the Section 9.1 Financials most recently delivered on or prior to such date) minus (II) the aggregate amount of Indebtedness
incurred pursuant to Section 10.1(g) and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness;
(g) (i)
Indebtedness constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Closing Date (and set
forth on Schedule 10.1) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at the time of
Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such
Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness
pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted
Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as
of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date) minus
(II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any Permitted Refinancing Indebtedness Incurred
to Refinance such Indebtedness.
(h) Closing
Date Indebtedness and any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness
in respect of Hedging Agreements Incurred in the ordinary course of business or consistent with past practice and, in each case, at the
time entered into, not for speculative purposes;
(j) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary
(or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such Person or any of its Subsidiaries) or Indebtedness
attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Closing Date as the result
of an Acquisition or similar Investment or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary;
provided that
(A) subject
to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is
continuing;
(B) subject
to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such
Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the
Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis, with either (X) a Consolidated EBITDA to
Consolidated Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or
prior to the date of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred
on the first day of such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to
Consolidated Interest Expense Ratio immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a
Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most
recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and
Specified Restructuring had occurred on the first day of such Test Period of either (x) not greater than 6.50:1.00 or (y) not
greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such
Incurrences and such other transactions;
(C) such
Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case,
was not created in anticipation thereof;
(D) such
Indebtedness is not guaranteed in any respect by Holdings, the Borrower or any Restricted Subsidiary (other than any such Person that
so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries) except to the extent permitted
under Section 10.5 or Section 10.6;
(E) (x)
the Capital Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such Person executes
a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and security arrangements
in relation to the Obligations) and a counterpart signature page to the Intercompany Notes, in each case to the extent required under
Section 9.10, 9.11 or 9.14(b), as applicable; provided that the requirements of this clause (E) shall not apply to any Indebtedness of
the type that could have been Incurred under Section 10.1(f) or Section 10.1(g); and
(ii) any
Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(k) (i) Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition or similar Investment; provided
that
(A) subject to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred
and is continuing;
(B) subject
to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition,
Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted
Subsidiaries shall be in compliance on a pro forma basis with either (X) a Consolidated EBITDA to Consolidated Interest Expense Ratio,
as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as
if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of
either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest Expense Ratio immediately prior
to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total Debt to Consolidated EBITDA Ratio, as
such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if
such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test
Period of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately
prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) the
terms of such Indebtedness do not provide for any scheduled repayment (including at maturity), mandatory repayment, redemption, repurchase,
defeasance, acquisition, similar payment or sinking fund obligation prior to the Latest Maturity Date, other than customary prepayments,
repurchases, redemptions, defeasances or similar payments of, or offers to prepay, redeem, repurchase, defease, acquire or similarly
pay upon, a change of control, asset sale event or casualty, eminent domain or condemnation event or on account of the accumulation of
excess cash flow and customary acceleration rights upon an event of default;
(D) if
such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall not be guaranteed
in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section 10.5;
(E) (x)
the Capital Stock of any Person acquired in such Acquisitions or similar Investment (the “acquired Person”) is pledged
to the Collateral Agent to the extent required under Section 9.11 and (y) such acquired Person executes a supplement to each of the Guarantee,
the Security Agreement and the Pledge Agreement and a counterpart signature page to the Intercompany Note (or alternative guarantee and
security arrangements in relation to the Obligations), in each case, to the extent required under Section 9.10, 9.11 or 9.14(b), as applicable;
(F) the
terms of such Indebtedness shall be consistent with the requirements set forth in clause (b) and, if applicable, clause (f), of the proviso
to the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized Officer of the Borrower
delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness, together with a reasonably
detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating
that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence
that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five
Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees);
and
(G) at
the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions being consummated
in connection therewith and the use of the proceeds thereof, the aggregate principal amount of all Indebtedness Incurred by Non- Credit
Parties pursuant to, and then outstanding under, this Section 10.1(k), when aggregated with the aggregate principal amount of (1) all
other Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to Section 10.1(s) and (2) all Permitted Refinancing
Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to clause (ii) of this Section 10.1(k), shall not exceed, except
as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x) $15,000,000 and (y) 30% of
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date
of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on
or prior to such date);
(ii) any
Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(l) (i)
unsecured Indebtedness in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods
or services or progress payments in connection with such goods and services; provided that such obligations are Incurred in connection
with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing
of money and (ii) unsecured Indebtedness in respect of intercompany obligations of the Borrower or any Restricted Subsidiary in respect
of accounts payable Incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection
with the borrowing of money;
(m) Indebtedness
arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, earn-outs,
deferred purchase price, payment obligations in respect of any non-compete, consulting or similar arrangement, contingent earnout obligations
or similar obligations (including earn-outs), in each case entered into in connection with the Transactions, Acquisitions, other Investments
and the Disposition of any business, assets or Capital Stock permitted hereunder, other than Guarantee Obligations Incurred by any Person
acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing such acquisition, but including in
connection with Guarantee Obligations, letters of credit, surety bonds on performance bonds securing the performance of the Borrower
or any such Restricted Subsidiary pursuant to such agreements;
(n) Indebtedness
in respect of contracts (including trade contracts and government contracts), statutory obligations, performance bonds, bid bonds, custom
bonds, stay and appeal bonds, surety bonds, indemnity bonds, judgment bonds, performance and completion and return of money bonds and
guarantees, financial assurances, bankers’ acceptance facilities and similar obligations or obligations in respect of letters of
credit, bank guarantees or similar instruments related thereto, in each case not in connection with the borrowing of money, including
those incurred to secure health, safety and environmental obligations;
(o) Indebtedness
of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained
in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money;
(p) (i)
Indebtedness representing deferred compensation to officers, directors, managers, employees, consultants or independent contractors of
Holdings (or any Parent Entity thereof or any Equityholding Vehicle), the Borrower and the Restricted Subsidiaries Incurred in the ordinary
course of business and (ii) Indebtedness consisting of obligations of Holdings (or any Parent Entity thereof or any Equityholding Vehicle),
the Borrower or the Restricted Subsidiaries under deferred compensation arrangements to their officers, directors, managers, employees,
consultants or independent contractors or other similar arrangements Incurred by such Persons in connection with the Transactions, Acquisitions
or any other Investment permitted under Section 10.5 or Section 10.6;
(q) unsecured
Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to future, current or former officers,
managers, consultants, directors, employees and independent contractors (or their respective Immediate Family Members) of Holdings, the
Borrower, any of its Subsidiaries or any Parent Entity or Equityholding Vehicle, in each case, to finance the retirement, acquisition,
repurchase or redemption of Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle to the extent such Parent
Entity or any Equityholding Vehicle uses the proceeds to finance the purchase or redemption (directly or indirectly) of its Capital Stock)
or the Capital Stock of the Borrower, in each case to the extent permitted by Section 10.6; provided that, any such Indebtedness
shall reduce availability under Section 10.6 to the extent of any amounts incurred from time to time under this Section 10.1(q), whether
or not outstanding, except in respect of amounts forgiven or cancelled without payment being made;
(r) Cash
Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements,
employees’ credit or purchase cards, overdraft protections and similar arrangements and otherwise in connection with deposit accounts
and repurchase agreements permitted under Section 10.5;
(s) additional
senior, senior subordinated or subordinated Indebtedness of the Borrower and the Restricted Subsidiaries, and Permitted Refinancing
Indebtedness thereof; provided that, after giving pro forma effect to the Incurrence of any such Indebtedness and any
Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and Restricted Subsidiaries
shall be in compliance on a pro forma basis with either (x) a Consolidated EBITDA to Consolidated Interest Expense Ratio, as such
ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such
Incurrence, acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of not
less than 2.00:1.00 or (y) a Consolidated Total Debt to Consolidated EBITDA Ratio of less than or equal to 6.50:1.00, as such ratio
is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such
Incurrence, acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period; provided,
that, at the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions
being consummated in connection therewith and the use of the proceeds thereof, the aggregate principal amount of all Indebtedness
Incurred and then outstanding under this Section 10.1(s) by Non-Credit Parties, when aggregated with the aggregate principal amount
of (1) all other Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to Section 10.1(k) and (2) Permitted
Refinancing Indebtedness Incurred pursuant to, and then outstanding under, this clause (s) to Refinance Indebtedness of Non-Credit
Parties, shall not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater
of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most
recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section
9.1 Financials most recently delivered on or prior to such date); provided, further, that the terms of such
Indebtedness shall be consistent with the requirements of clause (b) and, if applicable, clause (f) of
the proviso of the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized
Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such
Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of
the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy
the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the
Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including
a reasonable description of the basis upon which it disagrees);
(t) (i) Indebtedness Incurred in connection with any Sale Leaseback and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance
such Indebtedness;
(u) Indebtedness
in respect of (i) Permitted Additional Debt, the Net Cash Proceeds from which or, in the case of commitments, the new commitments of
which, are required to be applied to (x) prepay the Term Loans and related amounts in the manner set forth in Section 5.2(a)(i) or
(y) permanently reduce Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving
Credit Commitments in the manner set forth in Section 5.2(e)(ii) (and any such Permitted Additional Debt shall be deemed to have
been Incurred pursuant to this clause (i)), (ii) other Permitted Additional Debt; provided that, in the case of this clause
(ii), at the time of Incurrence or provision thereof and after giving pro forma effect thereto and such other transactions being
consummated in connection therewith and the use of the proceeds thereof, assuming that all commitments, if any, thereunder were
fully drawn, the aggregate principal amount of (X) all such Indebtedness Incurred or provided under this Section 10.1(u)(ii) plus
(Y) any Incremental Term Loans (other than those Incremental Term Loans Incurred under the proviso to Section 2.14(b)), any
Incremental Revolving Credit Commitment Increases and any Additional/Replacement Revolving Credit Commitments (other than those
Additional/Replacement Revolving Credit Commitments Incurred or provided under the proviso to Section 2.14(b)) that, in each case,
have been Incurred or provided pursuant to Section 2.14(b)(A), shall not exceed the sum of (A) the Incremental Base Amount plus
(B) an aggregate amount of Indebtedness, such that, after giving pro forma effect to such Incurrence (and after giving pro forma
effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all
Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments then outstanding and
Incurred under Section 2.14(b)(B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to
Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most recently ended on or prior to the Incurrence of any
such Permitted Additional Debt, calculated on a pro forma basis, as if such Incurrence (and any related transaction) had occurred on
the first day of such Test Period, that is no greater than either (x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition
or similar Investment, no greater than prior Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such
Acquisition or similar Investment; provided, however, that, in the case of the Incurrence of any Indebtedness under
this clause (ii) that does not constitute or is not intended to constitute First Lien Obligations, in lieu of compliance with the
Consolidated First Lien Debt to Consolidated EBITDA Ratio set forth above, the Borrower shall be in compliance with a Consolidated
Total Debt to Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most recently ended on or prior to the
Incurrence of any such Permitted Additional Debt, calculated on a pro forma basis (but excluding cash proceeds of such Incurrence),
as if such Incurrence (and any related transaction) had occurred on the first day of such Test Period, that is no greater than
either (x) 6.50:1.00 or (y) if Incurred in connection
with an Acquisition or similar Investment, no greater than prior Consolidated Total Debt to Consolidated EBITDA Ratio immediately
prior to such Acquisition or similar Investment (the ratio thresholds set forth in this clause (ii), the “Incremental Ratio
Debt Amount”); provided, further, that, in each case of this clause (ii), subject to Section 1.11, no Event
of Default (or, in the case of the Incurrence or provision of Permitted Additional Debt in connection with an Acquisition or similar
Investment, no Event of Default under either Section 11.1 or 11.5) shall have occurred and be continuing at the time of the
Incurrence or provision of any such Indebtedness or after giving pro forma effect thereto and (iii) any Permitted Refinancing
Indebtedness Incurred to Refinance such Indebtedness; provided that, without limitation of the requirements set forth in the
definition of “Permitted Refinancing Indebtedness”, such Permitted Refinancing Indebtedness shall be of the type
described in the definition of “Permitted Additional Debt”;
(v) Indebtedness
of Non-Credit Parties; provided that, at the time of the Incurrence thereof and after giving pro forma effect to such Incurrence
and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding in reliance
on this Section 10.1(v) shall not exceed the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the Borrower for the Test
Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the
Section 9.1 Financials most recently delivered on or prior to such date);
(w) unsecured
Indebtedness in the amount equal to the sum of (i) any Excluded Contribution to the extent not counted for purposes of the Available
Equity Amount or Cure Amount and (ii) the Available RP Capacity Amount; provided that the maturity date of such Indebtedness is
not earlier than the Latest Maturity Date;
(x) Indebtedness
of the Borrower and the Restricted Subsidiaries; provided that, at the time of the Incurrence thereof and after giving pro forma
effect to such Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness
the outstanding under this Section 10.1(x) shall not exceed the greater of (x) $37,500,000 and (y) 75% of Consolidated EBITDA of the
Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is
Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
(y) (i) Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary; provided
that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Subsidiary Guarantor (other than any Indebtedness in
respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with
past practice (and not in connection with the borrowing of money)) shall be evidenced by the Intercompany Note and (ii) Indebtedness in
respect of shares of Disqualified Capital Stock of a Restricted Subsidiary issued to the Borrower or another Restricted Subsidiary; provided
that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or any other subsequent transfer (other than the incurrence of a lien permitted by Section 10.2) of any
such shares of Disqualified Capital Stock (except to the Borrower or another of the Restricted Subsidiaries or any pledge of such Capital
Stock constituting a lien permitted by Section 10.2 (but not foreclosure thereon)) shall be deemed in each case to be an issuance of such
shares of Disqualified Capital Stock (to the extent such Disqualified Capital Stock is then outstanding) not permitted by this clause;
(z) Indebtedness
in respect of commercial letters of credit obtained in the ordinary course of business;
(aa) Indebtedness arising from
the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the
ordinary course of business;
(bb) customer deposits and advance
payments received in the ordinary course of business from customers for goods or services purchased in the ordinary course of business;
(cc) Indebtedness
Incurred 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
on a recourse basis;
(dd) Indebtedness
of the Borrower or any Restricted Subsidiary undertaken in connection with cash management and related activities with respect to any
Subsidiary or Joint Venture in the ordinary course of business;
(ee) Indebtedness
arising solely as a result of the existence of any Lien (other than for Liens securing debt for borrowed money) permitted under Section
10.2;
(ff) Indebtedness of any Receivables Subsidiary arising
under a Qualified Receivables
Facility;
(gg) Indebtedness
to the seller of any business or assets permitted to be acquired by the Borrower or any Restricted Subsidiary under this Agreement; provided
that, at the time of the Incurrence thereof and after giving pro forma effect to such Incurrence and other transactions and the use of
the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding in reliance on this Section 10.1(ii) shall not exceed
the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most
recently ended on or prior to such date of Incurrence (measured as of such date) based upon the Section 9.1 Financials most recently delivered
on or prior to such date;
(hh) obligations
in respect of Disqualified Capital Stock; provided that, at the time of the Incurrence thereof and after giving pro forma effect
to such Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding
under this clause (hh) shall not exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of such date) based upon the
Section 9.1 Financials most recently delivered on or prior to such date;
(ii) endorsement
of instruments or other payment items for deposit in the ordinary course of business;
(jj) performance
Guarantees of the Borrower and its Restricted Subsidiaries primarily guaranteeing performance of contractual obligations of the Borrower
or Restricted Subsidiaries to a third party and not primarily for the purpose of guaranteeing payment of Indebtedness;
(kk) obligations
in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Subsidiary of the
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) to the extent constituting Indebtedness,
the 2017 Contingent Value Rights;
(mm) unfunded
pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to the extent they
do not result in an Event of Default under Section 11.6; and
(nn) all customary
premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest
on obligations described in each of the clauses of this Section 10.1.
For purposes
of determining compliance with this Section 10.1, in the event that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness described above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify
or reclassify all or a portion of such item of Indebtedness (or any portion thereof and including as between the Incremental Base Amount
and the Incremental Ratio Debt Amount) in a manner that complies with this Section 10.1 and will only be required to include the amount
and type of such Indebtedness in one or more of the above clauses; provided that all Indebtedness outstanding under the Credit
Documents and any Credit Agreement Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness will be deemed
to have been Incurred in reliance only on the exception set forth in Section 10.1(a) (but without limiting the right of the Borrower to
classify and reclassify, or later divide, classify or reclassify, Indebtedness incurred under Section 2.14 or Section 10.1(u) as between
the Incremental Base Amount and the Incremental Ratio Debt Amount). The accrual of interest, the accretion of accreted value and the payment
of interest in the form of additional Indebtedness shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section
10.1.
At the time
of Incurrence, the Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness
described in the paragraphs above. It is understood and agreed that any Indebtedness in the form of loans secured by Liens on the Collateral
having a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but without regard to control
of remedies) shall be subject to the MFN Protection set forth in Section 2.14(c) (but subject to the MFN Exceptions to such MFN Protection)
as if such Indebtedness were an Incremental Term Loan.
10.2 Limitation
on Liens. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien upon any property or assets of any kind (real or personal, tangible or intangible) of the Borrower
or any Restricted Subsidiary, whether now owned or hereafter acquired, except:
(a) Liens
created pursuant to (i) the Credit Documents to secure the Obligations (including Liens permitted pursuant to Section 3.8) or
permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage, (ii) the Permitted Additional Debt Documents
securing Permitted Additional Debt Obligations permitted to be Incurred under Section 10.1(u) (provided that such Liens do
not extend to any assets that are not Collateral) and (iii) the documentation governing any Credit Agreement Refinancing
Indebtedness (provided that such Liens do not extend to any assets that are not Collateral); provided that, (A) in the
case of Liens described in subclause (ii) or (iii) above securing Permitted Additional Debt Obligations or Credit Agreement
Refinancing Indebtedness that constitute, or are intended to constitute, First Lien Obligations, the applicable Permitted Additional
Debt Secured Parties or parties to such Credit Agreement Refinancing Indebtedness (or a representative thereof on behalf of such
holders) shall have entered into with the Collateral Agent a Customary Intercreditor Agreement which agreement shall provide that
the Liens on the Collateral securing such Permitted Additional Debt Obligations or Credit Agreement Refinancing Indebtedness shall
have the same priority ranking as the Liens on the Collateral securing the Obligations (but without regard to control of remedies)
and (B) in the case of Liens described in subclause (ii) or (iii) above securing Permitted Additional Debt Obligations or Credit
Agreement Refinancing Indebtedness that do not constitute, or are not intended to constitute, First Lien Obligations, the applicable
Permitted Additional Debt Secured Parties or parties to such Credit Agreement Refinancing Indebtedness (or a representative thereof
on behalf of such holders) shall have entered into a Customary Intercreditor Agreement with the Collateral Agent which agreement
shall provide that the Liens on the Collateral securing such Permitted Additional Debt Obligations or Credit Agreement Refinancing
Indebtedness, as applicable, shall rank junior in priority to the Liens on the Collateral securing the Obligations and any other
First Lien Obligations. Without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be
authorized to negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor Agreement or any amendment
(or amendment and restatement) to the Security Documents or a Customary Intercreditor Agreement to the extent necessary to effect
the provisions contemplated by this Section 10.2(a);
(b) Permitted Encumbrances;
(c) Liens securing Indebtedness permitted pursuant to Section 10.1(f) or Section 10.1(g) (including the interests of vendors and lessors
under conditional sale and title retention agreements); provided that (i) such Liens attach concurrently with or within 270 days
after the acquisition, lease, repair, replacement, restoration, construction, expansion or improvement (as applicable) of the property
subject to such Liens or the making of the applicable Capital Expenditures, (ii) other than the property financed by such Indebtedness,
such Liens do not at any time encumber any property, except for replacements thereof and accessions and additions to such property and
ancillary rights thereto and the proceeds and the products thereof and customary security deposits, related contract rights and payment
intangibles and other assets related thereto and (iii) with respect to Financing Lease Obligations, such Liens do not at any time extend
to, or cover any assets (except for accessions and additions to such assets, replacements and products thereof and customary security
deposits, related contract rights and payment intangibles), other than the assets subject to such Financing Lease Obligations and ancillary
rights thereto; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings
of equipment provided by such lender;
(d) Liens
on property and assets existing on the Closing Date or pursuant to agreements in existence on the Closing Date and listed on
Schedule 10.2 or, to the extent not listed in such Schedule, such property or assets have a Fair Market Value that does not exceed
$2,500,000 in the aggregate; provided that (i) such
Lien does not extend to any other property or asset of the Borrower or any Restricted Subsidiary, other than (A) after acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted by Section
10.1 and (B) the proceeds and products thereof and (ii) such Lien shall secure only those obligations that such Liens secured on the
Closing Date and any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness permitted by Section 10.1;
(e) the
modification, Refinancing, replacement, extension or renewal (or successive modifications, Refinancings, replacements, extensions or
renewals) of any Lien permitted by clauses (c), (d), (f), (p), (t), (u) and (bb) of this Section 10.2 upon or in the same assets
theretofore subject to such Lien other than (i) after-acquired property that is affixed or incorporated into the property covered by
such Lien, (ii) in the case of Liens permitted by clauses (f),
(t), (u) or (bb), after-acquired property subject to a Lien securing Indebtedness permitted under Section 10.1, the terms of which
Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be
permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (iii) the proceeds
and products thereof;
(f) Liens
existing on the assets, or shares of Capital Stock, of any Person that becomes a Restricted Subsidiary (including by designation as a
Restricted Subsidiary pursuant to Section 9.15), or existing on assets acquired, pursuant to an Acquisition or other similar Investment
permitted under Section 10.5 or Section 10.6 to the extent the Liens on such assets secure Indebtedness permitted by Section 10.1(j);
provided that such Liens attach at all times only to the same assets that such Liens attached to (other than (i) after-acquired
property that is affixed or incorporated into the property covered by such Lien, (ii) after-acquired property subject to a Lien securing
Indebtedness permitted under Section 10.1(j), the terms of which Indebtedness require or include a pledge of after-acquired property
(it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied
but for such acquisition) and (iii) the proceeds and products thereof), and secure only, the same Indebtedness or obligations (or any
Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness permitted by Section 10.1) that such Liens secured, immediately
prior to such Acquisition or such other Investment, as applicable;
(g) Liens
arising out of any license, sublicense or cross-license of Intellectual Property permitted under Section 10.4;
(h) Liens
securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary in favor of the Borrower or any Restricted Subsidiary;
(i) Liens
(i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii)
attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii)
in favor of a banking institution arising as a matter of law encumbering deposits (including the right to set off) and which are
within the general parameters customary in the banking industry;
(j) Liens
(i) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant
to Section 10.5 or Section 10.6 to be applied against the purchase price for such Investment (or to secure letters of credit, bank guarantee
or similar instruments posted or issued in respect thereof), and (ii) consisting of an agreement to sell, transfer, lease or otherwise
Dispose of any property in a transaction permitted under Section 10.4, in each case, solely to the extent such Investment or sale, Disposition,
transfer or lease, as the case may be, would have been permitted on the date of the creation of such Lien;
(k) (i)
Liens arising out of conditional sale, title retention (including any security or quasi- security arising under any retention of title,
extended retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods
or, in the case of an extended retention of title arrangement, receivables resulting from the sale of such goods supplied to the Borrower
or any of the Restricted Subsidiaries in the ordinary course of trading and on the supplier’s standard or usual terms and not arising
as a result of any default or omission by the Borrower or any of the Restricted Subsidiaries), consignment or similar arrangements for
sale of property and bailee arrangements entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of
business permitted by this Agreement and (ii) Lien arising by operation of Applicable Law under Article 2 of the Uniform Commercial Code
(or any similar provision under any other Applicable Law) in favor of a seller or buyer of goods;
(l) Liens
deemed to exist in connection with Investments in repurchase agreements permitted under Section 10.5; provided that such Liens
do not extend to any assets other than those that are the subject of such repurchase agreement;
(m) Liens
that are contractual rights of set-off (A) relating to the establishment of depository relations with banks not given in connection with
the Incurrence of Indebtedness, (B) relating to pooled deposit, automatic clearing house or sweep accounts of the Borrower or any Restricted
Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and
the Restricted Subsidiaries or (C) relating to purchase orders and other agreements entered into with customers of the Borrower or any
Restricted Subsidiary in the ordinary course of business; provided that, Liens permitted pursuant to this clause (m) may be first
priority Liens and not subject to any Lien or security interest securing the Obligations;
(n) Liens
(i) solely on any earnest money deposits of cash or Cash Equivalents made by the Borrower or any of the Restricted Subsidiaries in connection
with any letter of intent or purchase agreement permitted hereunder or to secure any letter of credit, bank guarantee or similar instrument
issued or posted in respect thereof and (ii) consisting of an agreement to Dispose of any property in a transaction permitted under Section
10.4;
(o) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(p) Liens
on property subject to Sale Leasebacks and customary security deposits, related contract rights and payment intangibles related thereto;
(q) the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(r) agreements to subordinate any interest of the Borrower or any Restricted Subsidiary in any accounts receivable or other proceeds
arising from inventory consigned by the Borrower or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary course
of business;
(s) (i) Liens on Capital Stock in Joint Ventures securing obligations of such Joint Ventures and (ii) to the extent constituting Liens,
transfer restrictions, purchase options, rights of first refusal, tag or drag, put or call or similar rights of minority holders or Joint
Ventures partners, in each case under partnership, limited liability coverage, Joint Venture or similar Organizational Documents;
(t) Liens with respect to property or assets of any Non-Credit Party securing Indebtedness of a Non-Credit Party permitted under Section
10.1(v);
(u) Liens
not otherwise permitted by this Section 10.2; provided that, at the time of the incurrence thereof and after giving pro forma
effect thereto and the use of proceeds thereof, the aggregate amount of Indebtedness and other obligations then outstanding and secured
thereby (when aggregated with the principal amount of Indebtedness secured by Liens Incurred in reliance on, and then outstanding under,
Section 10.2(e) above in respect of a Refinancing of Indebtedness previously secured under this Section 10.2(u)) does not exceed, except
as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x) $25,000,000 and (y) 50% of
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date
such Lien is created, incurred, assumed or suffered to exist (measured as such date) based upon the Section 9.1 Financials most recently
delivered on or prior to such date; provided that, if such Liens are on Collateral, then the Borrower may elect to have the holders
of the Indebtedness or other obligations secured thereby (or a representative or trustee on their behalf) enter into a Customary Intercreditor
Agreement providing that the consensual Liens on the Collateral (other than cash and Cash Equivalents) securing such Indebtedness or
other obligations shall rank either equal in priority or junior to the Liens on the Collateral securing the Obligations. Without any
further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to negotiate, execute and deliver
on behalf of the Secured Parties any Customary Intercreditor Agreement or any amendment (or amendment and restatement) to the Security
Documents or a Customary Intercreditor Agreement to the extent necessary to effect the provisions contemplated by this Section 10.2(u);
(v) Liens
encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other
brokerage accounts maintained in the ordinary course of business and, at the time of incurrence thereof, not for speculative purposes;
(w) Liens
on cash and Cash Equivalents used to defease or to satisfy or discharge Indebtedness; provided such defeasance or satisfaction
or discharge is permitted under this Agreement;
(x) 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 or consistent with past practice;
(y) Liens securing commercial letters of credit permitted pursuant to Section 10.1(z);
(z) Liens
on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(aa) Liens securing
Hedging Agreements submitted for clearing in accordance with Applicable Law;
(bb) Liens
securing Indebtedness permitted under Section 10.1; provided that, subject to Section 1.11, after giving pro forma effect to
the Incurrence of any such Liens and the Incurrence of such Indebtedness and to any Acquisition, Investment, Specified Transaction
or Specified Restructuring to be consummated in connection therewith, the Borrower and Restricted Subsidiaries shall be in
compliance on a pro forma basis with (A) in the case of any Indebtedness that constitutes or is intended to constitute First Lien
Obligations, a Consolidated First Lien Debt to Consolidated EBITDA Ratio that is no greater than 5.25:1.00 or (B) in the case of any
Indebtedness that that does not constitute or is not intended to constitute First Lien Obligations, a Consolidated Secured Debt to
Consolidated EBITDA Ratio that is no greater than 6.50:1.00, in each case as such ratio is calculated as of the last day of the Test
Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, and any
Specified Transaction or Specified Restructuring to be consummated in connection therewith occurred on the first day of such Test
Period; provided; further; that, if such Liens are on Collateral, then the Borrower may elect to have the holders of
the Indebtedness or other obligations secured thereby (or a representative or trustee on their behalf) enter into a Customary
Intercreditor Agreement providing that the consensual Liens on the Collateral (other than cash and Cash Equivalents) securing such
Indebtedness or other obligations shall rank either equal in priority or junior to the Liens on the Collateral securing the
Obligations. Without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to
negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor Agreement or any amendment (or amendment
and restatement) to the Security Documents or a Customary Intercreditor Agreement to the extent necessary to effect the provisions
contemplated by this Section 10.2(bb);
(cc) with respect
to any Foreign Subsidiary, Liens arising mandatorily by legal requirements (and not as a result of under-capitalization of such Foreign
Subsidiary);
(dd) Liens on
Escrowed Proceeds for the benefit of the related holders of debt securities or other Indebtedness permitted to be incurred hereunder (or
the underwriters or arrangers thereof) or on cash set aside at the time of the Incurrence of any Indebtedness or government securities
purchased with such cash, in either case to the extent such cash or government securities prefund the payment of interest on such Indebtedness
and are held in an escrow account or similar arrangement to be applied for such purpose;
(ee) Liens on
vehicles or equipment of the Borrower or any of the Restricted Subsidiaries granted in the ordinary course of business;
(ff) Liens on
accounts receivable and related assets, incurred in connection with a Qualified Receivables Facility;
(gg) Liens securing
obligations in respect of any overdraft and related liabilities arising from treasury, depository and cash management services or any
automated clearing house transfers of funds or in respect of any credit card or similar services incurred in the ordinary course of business
or consistent with past practice;
(hh) Liens representing
(i) any interest or title of a licensor, lessor or sublicensor or sublessor under any lease or license permitted by this Agreement, (ii)
any Lien or restriction that the interest or title of such lessor, licensor, sublessor or sublicensor may be subject to, or (iii) the
interest of a licensee, lessee, sublicensee or sublessee arising by virtue of being granted a license or lease permitted by this Agreement;
(ii) Liens granted
pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of Intellectual Property to secure the
damages, if any, of such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization or similar
proceeding with respect to the Borrower or such Restricted Subsidiary;
(jj) utility and similar deposits in the ordinary course
of business;
(kk) Liens securing
any Hedging Obligations under any Hedging Agreement so long as the Fair Market Value of the Collateral securing such Hedging Obligations
does not exceed the greater of (x)
$10,000,000 and (y) 20% of Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Lien is created,
incurred, assumed or suffered to exist (measured as such date) based upon the Section 9.1 Financials most recently delivered on or prior
to such date;
(ll) Liens arising
in connection with rights of dissenting equityholders pursuant to Applicable Law in respect of the Transactions; and
(mm) Liens arising
solely by virtue of any statutory or common law provision or from customary contractual provisions (such as banks’ general terms
and conditions) relating to banker’s liens, rights of set-off or similar rights.
For purposes
of determining compliance with this Section 10.2, (A) Lien need not be incurred solely by reference to one category of Liens permitted
by this Section 10.2 but are permitted to be incurred in part under any combination thereof and of any other available exemption, (B)
in the event that Lien (or any portion thereof) meets the criteria of one or more of the categories of Liens permitted by this Section
10.2, the Borrower shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies
with this definition and (C) in the event that a portion of Indebtedness or other obligations secured by a Lien could be classified as
secured in part pursuant to Section 10.2(bb) above (giving pro forma effect to the Incurrence of such portion of such Indebtedness or
other obligations), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect
thereof) as having been secured pursuant to Section 10.2(bb) above and thereafter the remainder of the Indebtedness or other obligations
as having been secured pursuant to one or more of the other clauses of this Section 10.2.
10.3 Limitation
on Fundamental Changes. Except as expressly permitted by Section 10.4, 10.5 or 10.6, the Borrower will not and will not permit any
of the Restricted Subsidiaries to, consummate any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all of its business units, assets or other properties, except
that:
(a) any
Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the
Borrower or the Borrower may Dispose of all or substantially all of its business units, assets and other properties; provided
that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where
the Borrower is not the continuing or surviving Person, the Person formed by or surviving any such merger, amalgamation or
consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s
assets, the transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the
United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may
be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the
Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to
a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger, amalgamation,
consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation,
consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.11, no Event of Default under
Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition
or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) each Guarantor, unless it is
the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall
have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under
this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation,
consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents
confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each
mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless
the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the Mortgage confirmed that its obligations
thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to
the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any
supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral
under the Security Documents, (F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to
the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not
breach or result in a default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or
Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition”
or is otherwise permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied,
the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement
(provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or
property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in
Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such
Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any
Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one
or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its business
units, assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving
one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such
assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation
or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the
case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, if the surviving Person formed
by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties is a Credit Party, then any
Indebtedness of any Subsidiary Guarantor assumed by such surviving Person or the transferee of such assets and properties shall be deemed
an Incurrence of Indebtedness upon completion of such transaction and such transaction shall be permitted only if such Incurrence is
permitted under Section 10.1 of this Agreement (without giving effect to Section 10.1(k)) and (iii) if such merger, amalgamation, consolidation
or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation
or Disposition, is not a Restricted Subsidiary of the Borrower, (A) subject to Section 1.11, no Event of Default under Section 11.1 or
Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from
the consummation of such merger, amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the Administrative
Agent a certificate of an Authorized Officer stating that such merger, amalgamation, consolidation or Disposition and such supplements
to any Credit Document preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the Security
Documents and (C) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition
of the term “Permitted Acquisition” or is otherwise permitted under Section 10.4, 10.5 or 10.6;
(c) any
Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower;
(d) the Transactions (including the Mergers) may be consummated;
(e) any
Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such liquidation
or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders
and (y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.5 or Section 10.6,
or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another
Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form; and
(f) the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation, amalgamation or
Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (other than 10.4(h)).
10.4 Limitation
on Sale of Assets. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, (i)
convey, sell, lease, assign, transfer, license or otherwise dispose of any of its property, business or assets (including
receivables and including pursuant to a Sale Leaseback), whether now owned or hereafter acquired (each, a
“Disposition”) (other than any such Disposition resulting from a Recovery Event), or (ii) sell to any Person
(other than to the Borrower or a Restricted Subsidiary) any shares owned by it of any of their respective Restricted
Subsidiaries’ Capital Stock, except that:
(a) the
Borrower and the Restricted Subsidiaries may sell, lease, assign, transfer, license, abandon, allow the expiration or lapse of, or
otherwise Dispose of, the following: (i) obsolete, worn-out, damaged, uneconomic, no longer commercially desirable, used or surplus
assets, rights and properties and other assets, rights and properties that are held for sale or no longer used, useful or necessary
for the operation of the Borrower’s and its Subsidiaries’ business, (ii) inventory, equipment, service agreements,
product sales, securities and goods held for sale or other immaterial assets in the ordinary course of business, (iii) cash, Cash
Equivalents and Investment Grade Securities in the ordinary course of business, (iv) books of business, client lists or related
goodwill in connection with the departure of related employees or producers in the ordinary course of business and (v) any such
other assets or Capital Stock to the extent that the aggregate Fair Market Value of such assets sold in any single transaction or
series of related transactions does not exceed the greater of (x) $1,500,000 and (y) 3% of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such assets are Disposed (measured as of
the date such assets are Disposed) based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(b) the Borrower and the Restricted Subsidiaries may (i) enter into non-exclusive licenses or non-exclusive sublicenses of Intellectual
Property including in connection with a research and development agreement in which the other party receives a non-exclusive license to
Intellectual Property that results from such agreement, (ii) exclusively license or exclusively sublicense Intellectual Property if done
in the ordinary course of business or consistent with past practice of the Borrower and its Restricted Subsidiaries and (iii) assign,
lease, sublease, license or sublicense any real or personal property or terminate or allow to lapse any such assignment, lease, sublease,
license or sublicense, other than any Intellectual Property, in the ordinary course of business;
(c) the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise Dispose of other assets for Fair Market Value; provided
that (i) with respect to any Disposition pursuant to this Section 10.4(c) for a purchase price in excess of the greater of (x)
$10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently
ended on or prior to the date such assets are Disposed (measured as of the date such assets are Disposed) based upon the Section 9.1
Financials most recently delivered on or prior to such date, not less than 75% of the aggregate consideration therefor from such
Disposition and all other Dispositions made pursuant to this clause (c) since the Closing Date, on a cumulative basis, received by
the Borrower and its Restricted Subsidiaries, as the case may be, is in the form of cash or Cash Equivalents; provided that,
for purposes of determining what constitutes cash under this clause (i), (A) any liabilities (as shown on the Borrower’s or
such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto or if accrued or
incurred subsequent to the date of such balance sheets, such liabilities would have been shown on the Borrower’s or such
Restricted Subsidiary’s balance sheet or in the footnotes thereto as if such accrual or incurrence had taken place on or prior
to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other
than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee
with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly
released by all applicable creditors in writing shall be deemed to be cash or Cash Equivalents, (B) any securities, notes or other
obligations received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such
Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days
following the closing of the applicable Disposition shall be deemed to be cash or Cash Equivalents and (C) any Designated Non-Cash
Consideration received by the Borrower or such Restricted Subsidiary in respect of the applicable Disposition having an aggregate
Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is
outstanding at the time such Designated Non-Cash Consideration is received, not in excess of the greater of (x) $10,000,000 and (y)
20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to
the date such assets are Disposed (measured as of the date such assets are Disposed) based upon the Section 9.1 Financials most
recently delivered on or prior to such date, with the Fair Market Value of each item of Designated Non-Cash Consideration being
measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash or Cash
Equivalents, (ii) any non-cash proceeds received in the form of Indebtedness or Capital Stock are pledged to the Collateral Agent to
the extent required under Section 9.11, and (iii) to the extent applicable, the Net Cash Proceeds thereof are promptly offered to
prepay the Term Loans to the extent required by Section 5.2(a)(i);
(d) the
Borrower and the Restricted Subsidiaries may (i) Dispose of, discount, forgive or write off accounts receivable, notes receivable or
other current assets in the ordinary course of business or convert accounts receivable to notes receivable or make other Dispositions
of accounts receivable in connection with the compromise or collection thereof and (ii) sell or transfer accounts receivable so long
as the Net Cash Proceeds of any sale or transfer pursuant to this clause (ii) are offered to prepay the Term Loans pursuant to Section
5.2(a)(i);
(e) the
Borrower and the Restricted Subsidiaries may Dispose of properties, rights or assets (including the Disposition or issuance of Capital
Stock) to the Borrower or to a Restricted Subsidiary; provided that, if the transferor of such property, right or asset is the
Borrower or a Subsidiary Guarantor and the transferee thereof is a Restricted Subsidiary that is not a Subsidiary Guarantor, then the
Indebtedness of such transferor assumed by such transferee shall be deemed an Incurrence of Indebtedness upon completion of such transaction
and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 (without giving effect to Section 10.1(j));
(f) the
Borrower and the Restricted Subsidiaries may Dispose of property (including like- kind exchanges) to the extent that (i) such property
is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly
applied to the purchase price of such replacement property;
(g) the
Borrower and the Restricted Subsidiaries may sell, transfer and otherwise Dispose of Investments in Joint Ventures to the extent required
by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in Joint Venture arrangements and
similar binding arrangements;
(h) the
Borrower and the Restricted Subsidiaries may effect any transaction permitted by Section 10.3, 10.5 or 10.6 and may create, incur, assume
or suffer to exist Liens permitted by Section 10.2;
(i) the
Borrower and the Restricted Subsidiary may transfer property subject to Recovery Events, including foreclosures, condemnation, expropriation,
forced disposition, eminent domain or any similar action with respect to assets;
(j) the
Borrower and the Restricted Subsidiaries may make Dispositions listed on Schedule 10.4 and Dispositions (i) of non-core or obsolete
assets acquired in connection with Acquisitions or other similar Investments that are not used or useful in, or are surplus to, the business
of the Borrower and the Restricted Subsidiaries and (ii) of other assets acquired in connection with Acquisitions or other similar Investments
permitted under this Agreement for Fair Market Value; provided that any such Dispositions referred to in this clause (ii) shall
be made or contractually committed to be made within 365 days of the date such assets were acquired by the Borrower or such Restricted
Subsidiary;
(k) the
Borrower and the Restricted Subsidiaries may unwind or terminate any Hedging Agreement or Cash Management Agreement and allow for the
expiration of any options agreement with respect to any Real Property or personal property;
(l) the
Borrower and the Restricted Subsidiaries may make Dispositions of residential Real Property and related assets in connection with relocation
activities for officers, managers, consultants, directors, employees or independent contractors (or their Immediate Family Members) of
Holdings (or any Parent Entity thereof or any Equityholding Vehicle), the Borrower and the Restricted Subsidiaries;
(m) the
Borrower and the Restricted Subsidiaries may issue directors’ qualifying shares and shares issued to foreign nationals, in each
case as required by Applicable Laws;
(n) the
Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower
and its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(o) the
Borrower and the Restricted Subsidiaries may allow the lapse of, abandon, cancel or cease to maintain or cease to enforce Intellectual
Property rights that are no longer (i) used, useful or necessary for the on-going business of the Borrower and its Restricted Subsidiaries,
(ii) economically practicable or commercially reasonable to maintain or (iii) in the best interest of or material for the operation of
the Borrower’s and the Restricted Subsidiaries’ businesses (including by allowing any registrations or any applications for
registration thereof to lapse), in each case in the ordinary course of business or consistent with past practice in the reasonable business
judgment of the Borrower;
(p) the
Borrower and the Restricted Subsidiaries may surrender, terminate or waive any contract rights or surrender, waive, settle, modify, compromise
or release any contract rights, litigation claims or any other claims of any kind (including in tort) in the ordinary course of business;
(q) the
Borrower and the Restricted Subsidiaries may make Dispositions or issuances of the Capital Stock in, Indebtedness of, or other securities
issued by, an Unrestricted Subsidiary;
(r) the
Borrower and the Restricted Subsidiaries may effect a Sale Leaseback (i) with respect to property that is acquired after the Closing
Date so long as such Sale Leaseback is consummated within 270 days of the acquisition of such property or (ii) if at the time the lease
in connection therewith is entered into, and after giving effect to the entering into of such lease, such lease is otherwise permitted
under this Agreement;
(s) the
Borrower may issue Qualified Capital Stock and, to the extent permitted by Section 10.1, Disqualified Capital Stock;
(t) the
Borrower and the Restricted Subsidiaries may make Dispositions (including those of the type otherwise described herein) after the Closing
Date in an aggregate amount not to exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for the Test Period most recently ended on or prior the date such assets are Disposed (measured as of such date) based upon
the Section 9.1 Financials most recently delivered on or prior to such date;
(u) to
the extent allowable under Section 1031 of the Code or any comparable or successor provision, any exchange of like property (excluding
any boot thereon) for use in a Similar Business;
(v) sales
or transfers of accounts receivable, or participations therein and related assets, in connection with any Qualified Receivables Facility;
(w) sales
or dispositions of Capital Stock of any Foreign Subsidiary in order to qualify members of the governing body of such Subsidiary if required
by Applicable Law;
(x) samples,
including time-limited evaluation software, provided to customers or prospective customers;
(y) de
minimis amounts of equipment provided to employees;
(z) the
Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with the Borrower or any Subsidiary
and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Capital Stock, (iii) transfer
any intercompany Indebtedness to the Borrower or any Restricted Subsidiary (subject to applicable subordination terms if Indebtedness
of a Credit Party is transferred to a non-Credit Party), (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness
or other obligation owing by Holdings, the Borrower or any Restricted Subsidiary, (v) settle, discount, write off, forgive or cancel
any Indebtedness owing by any present or former consultants, directors, officers or employees of any Parent Entity, Holdings, the Borrower
or any Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights and settle or waive contractual
or litigation claims; and
(aa) the
Borrower and the Restricted Subsidiaries may make Dispositions of any asset between or among the Borrower and/or its Restricted Subsidiaries
as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to clauses (a) through
(s) above.
10.5 Limitation
on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, make any Investment, except (each
of the following exceptions, the “Permitted Investments”):
(a) extensions
of trade credit, asset purchases (including purchases of inventory, Intellectual Property, supplies, materials or equipment or other
similar items), the lease or sublease of any asset and the licensing or sublicensing or contribution of Intellectual Property pursuant
to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
(b) Investments
in assets constituting, or at the time of making such Investments were, cash or Cash Equivalents;
(c) loans
and advances to officers, managers, directors, employees, consultants and independent contractors of Holdings (or any Parent Entity thereof),
the Borrower or any of its Restricted Subsidiaries (i) to finance the purchase of Capital Stock of Holdings (or any Parent Entity thereof
or any Equityholding Vehicle); provided that the amount of such loans and advances used to acquire such Capital Stock shall be
contributed to the Borrower in cash as common equity, (ii) for reasonable and customary business related travel expenses, entertainment
expenses, moving expenses and similar expenses or payroll expenses, in each case incurred in the ordinary course of business, and (iii)
for additional purposes not contemplated by subclause (i) or (ii) above; provided that, after giving pro forma effect to the making
of any such loan or advance, the aggregate principal amount of all loans and advances outstanding under this Section 10.5(c)(iii) shall
not exceed the greater of (x) $7,500,000 and (y) 15% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test
Period most recently ended on or prior to the date such Investment is made (measured as of such date) based upon the Section 9.1 Financials
most recently delivered on or prior to such date;
(d) Investments
(i) existing on the Closing Date or (ii) contemplated on the Closing Date or made pursuant to binding agreements in effect on the Closing
Date and, in each case, listed on Schedule 10.5 and (iii) in the case of each of clauses (i) and (ii), any modification, replacement,
renewal, extension or reinvestment thereof, so long as the aggregate amount of all Investments pursuant to this Section 10.5(d) is not
increased at any time above the amount of such Investments or binding agreements existing or contemplated on the Closing Date, except
pursuant to the terms of such Investment or binding agreements existing or contemplated as of the Closing Date (including as a result
of the accrual or accretion of original issue discount or the issuance of payment-in-kind obligations) or as otherwise permitted by this
Section 10.5 or Section 10.6;
(e) Investments
in Hedging Agreements permitted by Section 10.1(i) and Cash Management Agreements permitted by Section 10.1;
(f) Investments
received (i) in connection with, or as a result of, any bankruptcy, workout, reorganization or recapitalization of suppliers, trade creditors
or customers or in settlement or compromise of delinquent obligations and disputes with, or judgments against, or other disputes with,
customers, trade creditors or suppliers, including pursuant to any plan of reorganization or similar arrangement upon bankruptcy or insolvency
of any customer, trade creditor or supplier, (ii) in satisfaction of judgments against other Persons, (iii) as a result of the foreclosure
with respect to any secured Investment or other transfer of title with respect to any secured Investment or (iv) as a result of the settlement,
compromise or resolution of litigation, arbitration or other disputes with Person who are not Affiliates;
(g) Investments
to the extent that the payment for such Investments is made solely with the Capital Stock (other than Disqualified Capital Stock) of
Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower;
(h) Investments
constituting non-cash proceeds of sales, transfers and other Dispositions of assets to the extent permitted by Sections 10.3 and 10.4
(other than clause (h));
(i) (i)
Investments by or among the Borrower or any Restricted Subsidiary in the Borrower or any other Restricted Subsidiary (including guarantees
of obligations of any Restricted Subsidiary and any prepayments, repurchases, redemptions, defeasances, acquisitions and other similar
payments of any Indebtedness of any such Person not prohibited by Section 10.7) and (ii) Investments by the Borrower or any Restricted
Subsidiary in any Unrestricted Subsidiary or Joint Venture as valued at the Fair Market Value of such Investment at the time each such
Investment is made; provided that the aggregate amount of such Investment (as so valued) shall not exceed the greater of (x) $10,000,000
and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior
to the date such Investment is made (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior
to such date;
(j) Investments
consisting of advances, loans, rebates and extensions of credit in the nature of accounts receivable, notes receivable security deposits
and prepayments (including prepayments of expenses) arising and trade credit granted in the ordinary course of business or consistent
with past practice, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors
and other deposits, prepayments and other credits to suppliers in the ordinary course of business or consistent with past practice;
(k) the
Borrower may make a loan to Holdings (or any Parent Entity thereof or any Equityholding Vehicle) that could otherwise be made as a Restricted
Payment (other than a Restricted Investment) to Holdings (or any Parent Entity thereof or any Equityholding Vehicle) under Section 10.6,
so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause
of Section 10.6;
(l) Investments
in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade
arrangements with customers;
(m) advances
of payroll payments to employees, consultants or independent contractors or other advances of salaries or compensation to officers, managers,
employees, consultants or independent contractors, in each case in the ordinary course of business;
(n) Guarantees
by the Borrower or any Restricted Subsidiary of leases or subleases (other than Financing Lease Obligations), Contractual Obligations
or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(o) Investments
made to acquire, purchase, repurchase, redeem, acquire or retire Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding
Vehicle) or the Borrower owned by any employee stock ownership plan or key employee stock ownership plan of Holdings (or any Parent Entity
thereof or any Equityholding Vehicle) or the Borrower;
(p) Investments
constituting Permitted Acquisitions;
(q) any
additional Investments (including Investments in Minority Investments, Investments in Unrestricted Subsidiaries and Investments in Joint
Ventures or similar entities that do not constitute Restricted Subsidiaries), as valued at the Fair Market Value of such Investment at
the time each such Investment is made; provided that the aggregate amount of such Investment (as so valued) shall not cause the
aggregate amount of all such Investments made pursuant to this Section 10.5(q) measured at the time such Investment is made, to exceed,
after giving pro forma effect to such Investment, the sum of (i) the greater of (x) $25,000,000 and (y) 50% of Consolidated EBITDA of
the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior the date such Investment is made (measured
as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date, (ii) the Available Equity Amount
at such time and (iii) the Available Amount at such time; provided, however, that if any Investment pursuant to this Section
10.5(q) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes
a Restricted Subsidiary or such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary,
in each case, after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 10.5(i)(i) above and
shall cease to have been made pursuant to this Section 10.5(q) for so long as such Person continues to be a Restricted Subsidiary;
(r) Investments
arising as a result of Sale Leasebacks;
(s) Investments
held by any Person acquired by the Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged, consolidated or
amalgamated with or into the Borrower or merged, consolidated or amalgamated with or into a Restricted Subsidiary in accordance with
Section 10.3 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such
acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(t) Investments
consisting of Indebtedness, fundamental changes, Dispositions, Restricted Payments (other than Restricted Investments) and debt payments
permitted under Sections 10.1, 10.3 (but only any lettered paragraphs thereof), 10.4 (other than 10.4(e) or 10.4(i) (as such Section
10.4(i) relates to Section 10.5)), 10.6 (other than 10.6(c)(i)) and 10.7;
(u) the
forgiveness, capitalization or conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary
and permitted by Section 10.1;
(v) Restricted
Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the requirements
of Sections 9.10, 9.11 and 9.14, 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 permitted by this Section 10.5, and such new Restricted
Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the
closing of such transactions, such new Restricted Subsidiary shall not be required to take the actions set forth in Sections 9.10, 9.11
and 9.14 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);
(w) Investments
consisting of earnest money deposits required in connection with purchase agreements or other Acquisitions;
(x) Investments
consisting of loans and advances to Holdings (or any Parent Entity or any Equityholding Vehicle) and its Subsidiaries in connection with
the reimbursement of expenses incurred on behalf of the Borrower and its Restricted Subsidiaries in the ordinary course of business;
(y) Investment
Grade Securities maturing no more than 24 months from the date of acquisition;
(z) 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 Borrower or any of its Restricted Subsidiaries;
(aa) non-cash
or non-Cash Equivalent Investments in connection with tax planning and reorganization activities; provided that, after giving
pro forma effect to any such activities, the Liens on the Collateral securing the Obligations would not be materially impaired;
(bb) loans
and advances to customers in the ordinary course of business in respect of the payment of insurance premiums;
(cc) any
Investment made in connection with the Transactions, including the Mergers, the transactions set forth in the Acquisition Agreement and
any transactions in connection with the Existing Debt Refinancing;
(dd) Investments
consisting of purchases and acquisitions of assets or services in the ordinary course of business;
(ee) 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 and sublicensees;
(ff) Capital
Expenditures permitted or not restricted under this Agreement;
(gg) deposits
in the ordinary course of business to secure the performance of Non-Financing Lease Obligations or utility contracts, or in connection
with obligations in respect of tenders, statutory obligations, surety, stay and appeal bonds, bids, licenses, leases, government contracts,
trade contracts, performance and return-of-money bonds, completion guarantees and other similar obligations (exclusive of obligations
for the payment of borrowed money) incurred in the ordinary course of business;
(hh) Investments
made in the ordinary course of business in connection with (i) obtaining, maintaining or renewing client and customer contracts and (ii)
loans or advances made to, and guarantees with respect to obligations of, independent operators, distributors, suppliers, licensors,
sublicensors, licensees and sublicensees.
(ii) additional
Investments so long as, subject to Section 1.11, (x) no Event of Default shall have occurred and be continuing or would result therefrom
and (y) after giving pro forma effect to such Investment, the Borrower and the Restricted Subsidiaries would be in compliance, on a pro
forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test
Period most recently ended on or prior to the date of the making of such Investment, as if such Investment and any other transactions
being consummated in connection therewith occurred on the first day of such Test Period, of no greater than 4.75:1.00;
(jj) Investments
in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this Section
10.5(jj) that are at that time outstanding, not to exceed the greater of $15,000,000 and 30% of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date of such Investment (measured as of such date)
based upon the Section 9.1 Financials most recently delivered on or prior to such date; provided, however, that if any
Investment pursuant to this Section 10.5(jj) is made in any Person that is not a Restricted Subsidiary at the date of the making of such
Investment and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related transactions, is
merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into,
the Borrower or a Restricted Subsidiary, in each case, after such date, such investment shall thereafter be deemed to have been made
pursuant to Section 10.5(i) above and shall cease to have been made pursuant to this Section 10.5(jj) for so long as such Person continues
to be a Restricted Subsidiary;
(kk) to
the extent not required to be applied to prepay the Term Loans in accordance with Section 5.2(a)(i), Investments made in accordance with
clause (v) of the definition of “Net Cash Proceeds” with the proceeds received in connection with a Recovery Prepayment Event;
(ll) Investments
resulting from pledges and deposits permitted by Sections 10.2(a)(i), 10.2(b) (with respect to clause (d) of the definition of “Permitted
Encumbrances”) and 10.1(n);
(mm) any
Investment in any Subsidiary or any Joint Venture in connection with intercompany cash management arrangements or related activities
arising in the ordinary course of business or consistent with past practice;
(nn) Investments
in deposit accounts and securities accounts in the ordinary course of business;
(oo) Investments
solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this Section 10.5;
(pp) the
acquisition of additional Capital Stock of Restricted Subsidiaries from minority equityholders (it being understood that to the extent
that any Restricted Subsidiary that is not a Credit Party is acquiring Capital Stock from minority equityholders, then this clause (pp)
shall not in and of itself create, or increase the capacity under, any basket for Investments by Credit Parties in any Restricted Subsidiary
that is not a Credit Party);
(qq) Investments
in Capital Stock in any Subsidiary resulting from any sale, transfer or other Disposition by the Borrower or any Subsidiary permitted
by Section 10.4, including as a result of any contribution from any Parent Entity or distribution to any Subsidiary of such Capital Stock;
(rr) Term
Loans repurchased by the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with this
Agreement;
(ss) Guarantee
obligations of the 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 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;
(tt) Investments
in any Receivables Subsidiary that, in the good faith determination of the Borrower are necessary or advisable to effect any Qualified
Receivables Facility or any repurchase obligation in connection therewith;
(uu) additional
Investments in an aggregate amount not to exceed the portion, if any, of the Restricted Payment Amount, on the relevant date of determination
that the Borrower elects to apply pursuant to this clause (uu); and
(vv) Acquisitions
by the Borrower of obligations of one or more directors, officers, employees, member or management or consultants of Holdings, the Borrower
or its Subsidiaries in connection with such Person’s acquisition of Capital Stock of any Parent Entity or Equityholding Vehicle,
so long as no cash is actually advanced by the Borrower or any of its Subsidiaries to such Person in connection with the acquisition
of any such obligations.
10.6 Limitation
on Restricted Payments. The Borrower will not pay any dividends (other than dividends payable solely in the Qualified Capital Stock
of the Borrower) or return any capital to its equity holders or make any other distribution, payment or delivery of property or cash
to its equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares
of any class of its Capital Stock or the Capital Stock of any Parent Entity or any Equityholding Vehicle now or hereafter outstanding
(or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any
funds for any of the foregoing purposes (but excluding, in each case, the payment of compensation in the ordinary course of business
to equity holders of any such Capital Stock who are employees of the Borrower or any Restricted Subsidiary), or permit the Borrower or
any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted
by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or any Equityholding Vehicle or the
Capital Stock of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued
with respect to any of the Capital Stock of any Parent Entity of the Borrower or any Equityholding Vehicle or the Capital Stock of the
Borrower) or make any Restricted Investment (all of the foregoing, “Restricted Payments”); provided that:
(a) (i)
the Borrower may (or may pay Restricted Payments to permit any Parent Entity thereof or any Equityholding Vehicle to) redeem, repurchase,
retire or otherwise acquire in whole or in part any Capital Stock (“Treasury Capital Stock”) of the Borrower or any
Restricted Subsidiary or any Capital Stock of any Parent Entity or Equityholding Vehicle, in exchange for another class of Capital Stock
or rights to acquire its Capital Stock or with proceeds from equity contributions or sales or issuances (other than to the Borrower or
a Restricted Subsidiary) of new shares of such Capital Stock to the extent contributed to the Borrower (in each case other than Disqualified
Capital Stock, “Refunding Capital Stock”) substantially concurrently with such contribution or sale or issuance; provided
that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such Refunding Capital
Stock are at least as advantageous to the Lenders as those contained in the Capital Stock redeemed thereby and (ii) the Borrower, and
any Restricted Subsidiary may pay Restricted Payments payable solely in the Capital Stock (other than Disqualified Capital Stock not
otherwise permitted by Section 10.1) of such Person;
(b) so
long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase
(and the Borrower may declare and pay Restricted Payments to any Parent Entity thereof or any Equityholding Vehicle, the proceeds of
which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or equity appreciation
or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s Parent Entities or any Equityholding
Vehicle to so redeem, retire, acquire or repurchase their Capital Stock (or any options or warrants or equity appreciation or similar
rights issued with respect to any of its Capital Stock)) held by future, current or former officers, managers, consultants, directors,
employees and independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent
Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Subsidiaries of the Borrower, upon the death, disability, retirement
or termination of employment of any such Person or otherwise in accordance with any equity option or equity appreciation or similar rights
plan, any management, director and/or employee equity ownership or incentive plan, equity subscription plan or subscription agreement,
employment termination agreement or any other employment agreements or equity holders’ agreement (including, for the avoidance
of doubt, any principal or interest payable on any Indebtedness Incurred by the Borrower or any Parent Entity or Equityholding Vehicle
in connection with any such redemption, acquisition, retirement or repurchase); provided that, except with respect to non- discretionary
repurchases, acquisitions, retirements or redemptions pursuant to the terms of any equity option or equity appreciation rights plan,
any management, director and/or employee equity ownership or incentive plan, equity subscription plan or subscription agreement, employment
termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in
respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to
any of such Capital Stock) so redeemed, acquired, retired or repurchased, does not exceed the sum of (i) $10,000,000 in any calendar
year (which shall increase to $20,000,000 in any calendar year following the consummation of a Qualifying IPO); notwithstanding the foregoing,
100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving pro forma effect to any carry forward) may
be carried forward to succeeding calendar years and utilized to make payments pursuant to this Section 10.6(b) plus (ii) all proceeds
obtained by any Parent Entity or any Equityholding Vehicle (and contributed to the Borrower) or the Borrower after the Closing Date from
the sale of such Capital Stock to other future, current or former officers, managers, consultants, employees, directors and independent
contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) in connection with any plan or agreement
referred to above in this clause (b) plus (iii) all Net Cash Proceeds obtained from any key-man life insurance policies received
by the Borrower (or any Parent Entity or Equityholding Vehicle to the extent contributed to the Borrower) after the Closing Date less
(iv) the amount of any previous Restricted Payment made pursuant to clauses (ii) and (iii) of this Section 10.6(b); and provided,
further, that, the cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, current or
former employees, officers, managers, directors, consultants or independent contractors (or their respective Controlled Investment Affiliates
or Immediate Family Members) of any Parent Entity of the Borrower, any Equityholding Vehicle, Holdings or any of the Restricted Subsidiaries
in connection with a redemption, acquisition, retirement or repurchase of its Capital Stock will not be deemed to constitute a Restricted
Payment for purposes of this Agreement; provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount
utilizing the unused amounts available pursuant to this Section 10.6(b) shall reduce the amounts available pursuant to this Section 10.6(b);
(c) (i)
to the extent constituting Restricted Payments, (other than Restricted Investments), the Borrower and any Restricted Subsidiary may make
Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Restricted Payments to the Borrower and to Restricted
Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any Restricted
Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests);
(d) to
the extent constituting Restricted Payments, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly
permitted by any provision of Section 10.3 and 10.4 (other than 10.4(h)), and the Borrower may pay Restricted Payments to any Parent
Entity thereof or any Equityholding Vehicle as and when necessary to enable such Parent Entity or Equityholding Vehicle to effect the
transactions permitted by such section;
(e) the
Borrower may redeem, acquire, retire or repurchase Capital Stock of any Parent Entity or any Equityholding Vehicle of the Borrower or
the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion
of the exercise price of such options or warrants, and the Borrower may pay Restricted Payments to a Parent Entity or Equityholding Vehicle
thereof as and when necessary to enable such Parent Entity or Equityholding Vehicle to effect such repurchases;
(f) in
addition to the foregoing Restricted Payments (i) the Borrower may make additional Restricted Payments, so long as (x) no Event of Default
shall have occurred and be continuing or would result therefrom and (y) after giving pro forma effect to such Restricted Payment, the
Borrower would be in compliance, on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, calculated as of
the last day of the Test Period most recently ended on or prior to the date of payment of such Restricted Payment, as if such Restricted
Payment and any other transactions being consummated in connection therewith occurred on the first day of such Test Period, of no greater
than 4.25:1.00, (ii) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed an amount equal to the
Available Amount at the time such Restricted Payment is paid, so long as no Event of Default shall have occurred and be continuing or
would result therefrom, (iii) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed an amount equal
to the Available Equity Amount at the time such Restricted Payment is paid and (iv) so long as no Event of Default shall have occurred
and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount not to exceed
the portion, if any, of the Restricted Payment Amount, on the relevant date of determination, that the Borrower elects to apply pursuant
to this clause (iv); provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused
amounts available pursuant to this Section 10.6(f) shall reduce the amounts available pursuant to this Section 10.6(f);
(g) the
Borrower may make and pay Restricted Payments:
(i) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower to pay) any tax liability
in respect of income attributable to Holdings, the Borrower and its Subsidiaries, but not in excess of the tax liability that Holdings
and/or the Borrower would incur if it filed tax returns as the parent of a consolidated, combined, unitary or aggregate group for itself
and its Subsidiaries (and net of any payment already made and to be made by the Borrower to a taxing authority to satisfy such tax liability);
provided that a Restricted Payment attributable to any taxes attributable to an Unrestricted Subsidiary shall be permitted only
to the extent such Unrestricted Subsidiary distributed cash to the Borrower or its Restricted Subsidiaries;
(ii) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any Equityholding
Vehicle to pay) its operating expenses incurred in the ordinary course (including related to maintenance of organizational existence),
general administrative costs and other overhead costs and expenses (including administrative, legal, accounting, professional and similar
fees and expenses provided by third parties, including the Borrower’s proportionate share of such amount relating to such Parent
Entity being a Public Company), plus any indemnification claims made by employees, managers, consultants, independent contractors,
directors or officers of any Parent Entity of the Borrower or any Equityholding Vehicle;
(iii) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any Equityholding
Vehicle to pay) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, required to maintain its (or any
of its Parent Entities’ or Equityholding Vehicles’) corporate or other legal existence;
(iv) the
proceeds of which shall be used to make Investments contemplated by Section 10.5(c);
(v) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any Equityholding
Vehicle to pay) fees and expenses (other than to Affiliates of the Borrower) related to any successful or unsuccessful equity issuance
or offering or Incurrence of Indebtedness, Refinancing, Disposition or acquisition or Investment transaction permitted by this Agreement;
(vi) to
the extent not constituting a Restricted Investment, the proceeds of which shall be used to finance Investments that would otherwise
be permitted to be made pursuant to Section 10.5 or as a Restricted Investment pursuant to Section 10.6 if made by the Borrower or a
Restricted Subsidiary; provided that (i) such Restricted Payment shall be made substantially concurrently with the closing of
such Investment, (ii) such Parent Entity shall, immediately following the closing thereof, cause (A) all property acquired (whether assets
or Capital Stock) to be contributed to the capital of the Borrower or one of the Restricted Subsidiaries or (B) the merger, consolidation
or amalgamation of the Person formed or acquired with or into the Borrower or one of the Restricted Subsidiaries (to the extent not prohibited
by Section 10.3) in order to consummate such Investment and (iii) such Parent Entity and its Affiliates (other than the Borrower or a
Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Borrower
or a Restricted Subsidiary could have otherwise given such consideration or made such payment in compliance with this Agreement; and
(vii) the
proceeds of which shall be used to pay customary salary, bonus, severance and other benefits payable to directors, officers, managers,
employees, consultants or independent contractors of any Parent Entity of the Borrower or any Equityholding Vehicle to the extent such
salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries,
including the Borrower’s proportionate share of such amount relating to such Parent Entity being a Public Company;
(h) the
Borrower may (or may make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to) (i) pay cash in lieu of fractional
shares in connection with any Restricted Payment (including in connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Capital Stock), share split, reverse share split or combination thereof or any Acquisition or other
similar Investment and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional
shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the
Borrower may pay (or may make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to pay) Restricted Payments
in an amount equal to withholding or similar taxes payable or expected to be payable by any future, current or former employee, director,
manager, consultant or independent contractor (or any of their respective Immediate Family Members) of any Parent Entity of the Borrower,
any Equityholding Vehicle, the Borrower or any Subsidiary of the Borrower in connection with the exercise or vesting of Capital Stock
or other equity awards or any repurchases, redemptions, acquisitions, retirements or withholdings of Capital Stock in connection with
any exercise of Capital Stock or other equity options or warrants or the vesting of Capital Stock or other equity awards if such Capital
Stock represent all or a portion of the exercise price of, or withholding obligation with respect to, such options or, warrants or other
Capital Stock or equity awards;
(j) the
Borrower may make payments (or make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to make such payments)
described in Sections 10.11(c), (e), (h), (i), (j), (l) and (s) (subject to the conditions set out therein);
(k) the
Borrower may make Restricted Payments and distributions within sixty (60) days after the date of declaration thereof, if at the date
of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6;
(l) so
long as no Event of Default is continuing or would result therefrom, after a Qualifying IPO, the Borrower may make Restricted Payments
to any Parent Entity of the Borrower or any Equityholding Vehicle so that such Parent Entity or Equityholding Vehicle can make Restricted
Payments to its equity holders in an aggregate per annum amount not exceeding 6.0% of the Net Cash Proceeds of such Qualifying IPO; provided
that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant
to this Section 10.6(l) shall reduce the amounts available pursuant to this Section 10.6(l);
(m) the
Borrower and any Restricted Subsidiary may pay and make any Restricted Payment in connection with (i) the Transactions or Restricted
Payments necessary to consummate the Transactions, including (A) in respect of any payments required to be made after the Closing Date
in connection with, or necessary to consummate, the Transactions (including, for the avoidance of doubt, and to the extent constituting
a Restricted Payment, payments in respect of the 2017 Contingent Value Rights, the Deferred Blocker Consideration and the Deferred Company
Consideration), (B) the payment of the Transaction Expenses related thereto or used to fund amounts owed to Affiliates (including those
made to any Parent Entity of the Borrower or Equityholding Vehicle to permit payment by such Parent Entity or Equityholding Vehicle),
(C) in respect of working capital adjustments or purchase price adjustments or to satisfy indemnity and other similar obligations, in
each case as set forth in the Acquisition Agreement, (D) to holders of restricted stock, restricted stock units or similar equity awards
and (E) to dissenting equityholders in connection with, or as a result of, their exercise of appraisal rights and the settlement of any
claims or actions (whether actual, contingent or potential) with respect thereto (including any accrued interest) in connection with
the Transactions or any other Acquisition or other similar Investment, (ii) working capital adjustments or purchase price adjustments
in connection with any Acquisition or other similar Investment and (iii) the satisfaction of indemnity and other similar obligations
in connection with any Acquisition or other similar Investment; provided that any Indebtedness Incurred in reliance upon the Available
RP Capacity Amount utilizing the unused amounts available pursuant to this Section 10.6(m) shall reduce the amounts available pursuant
to this Section 10.6(m);
(n) the
Borrower may make payments made to optionholders or holders of profits interests of the Borrower or any Parent Entity or any Equityholding
Vehicle in connection with, or as a result of, any distribution being made to shareholders of the Borrower or any Parent Entity or any
Equityholding Vehicle (to the extent such distribution is otherwise permitted hereunder), which payments are being made to compensate
such optionholders or holders of profits interests as though they were shareholders at the time of, and entitled to share in, such distribution
(it being understood that no such payment may be made to an optionholder or holder of profits interests pursuant to this clause to the
extent such payment would not have been permitted to be made to such optionholder or holder of profits interests if it were a shareholder
pursuant to any other paragraph of this Section 10.6, and any payment hereunder shall reduce payments available under such other paragraph);
(o) the
Borrower may pay Restricted Payments to pay for the redemption, acquisition, retirement or repurchase, in each case for nominal value,
of Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower from a former investor of a
business acquired in an Acquisition or other similar Investment or a current or former employee, officer, director, manager or consultant
of a business acquired in an Acquisition or other similar Investment (or their Controlled Investment Affiliates or Immediate Family Members),
which Capital Stock was issued as part of an earn- out or similar arrangement in the acquisition of such business, and which redemption,
acquisition, retirement or repurchase relates the failure of such earn-out to fully vest;
(p) the
Borrower may make distributions, by Restricted Payment or otherwise, or other transfer or Disposition of shares of Capital Stock of Unrestricted
Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are Cash Equivalents); and
(q) the
Borrower may make payments or distributions to satisfy dissenters’ rights pursuant to or in connection with an acquisition, merger,
consolidation, amalgamation or transfer of assets that complies with Section 10.3;
(r) Holdings
may make Restricted Payments constituting interest payments on Disqualified Capital Stock, to the extent such Disqualified Capital Stock
constitutes Indebtedness, was Incurred in compliance with Section 10.1 and such Restricted Payments are included in the calculation of
Consolidated Interest Expense;
(s) the
Borrower may make Restricted Payments in an aggregate amount that does not exceed the aggregate amount of Excluded Contributions received
since the Closing Date (not otherwise building Available Equity Amount or constituting a Cure Amount or used to incur Indebtedness);
provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available
pursuant to this Section 10.6(s) shall reduce the amounts available pursuant to this Section 10.6(s);
(t) the
Borrower may make distributions or payments of Receivables Fees and purchases of Receivables in connection with any Qualified Receivables
Facility or any repurchase obligation in connection therewith;
(u) the
Restricted Subsidiaries may make Restricted Payments in connection with the acquisition of additional Capital Stock in any Restricted
Subsidiary from minority equityholders; and
(v) so
long as no Event of Default is continuing or would result therefrom, after a Qualifying IPO, the Borrower may make Restricted Payments
to any Parent Entity of the Borrower or any Equityholding Vehicle so that such Parent Entity or Equityholding Vehicle can make Restricted
Payments to its equity holders in an aggregate per annum amount not exceeding 7.0% of the Market Capitalization; provided that
any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to this Section
10.6(w) shall reduce the amounts available pursuant to this Section 10.6(w).
The
amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the assets
or securities proposed to be transferred or issued by the Borrower or any Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. For the avoidance of doubt, this Section 10.6 shall not restrict the making of any AHYDO Catch-Up Payment with respect
to, and required by the terms of, any Indebtedness of the Borrower or any of the Restricted Subsidiaries permitted to be incurred under
the terms of this Agreement. Indebtedness Incurred under Section 10.1(q) shall reduce availability under this Section 10.6 in an amount
equal to the aggregate principal amount incurred from time to time under Section 10.1(q), whether or not outstanding, except in respect
of amounts forgiven or cancelled without payment being made.
10.7 Limitations
on Debt Payments and Amendments.
(a) The
Borrower will not, and will not permit any of the Restricted Subsidiaries to, prepay, repurchase, redeem or otherwise defease or make
similar payments in respect of any Junior Debt prior to its stated maturity (it being understood that payments of regularly scheduled
interest, fees, expenses, indemnification obligations and, so long as no Event of Default under Section 11.1 or 11.5 is continuing or
would result therefrom, AHYDO Catch-Up Payments shall be permitted); provided, however, the Borrower or any Restricted
Subsidiary may prepay, repurchase, redeem, defease, acquire or otherwise make payments on any such Indebtedness (i) with the proceeds
of any Permitted Refinancing Indebtedness in respect of such Indebtedness, (ii) by converting or exchanging any such Indebtedness to
Capital Stock of Holdings or any of its Parent Entities and (iii) (A) so long as (x) no Event of Default has occurred and is continuing
or would result therefrom and (y) after giving pro forma effect to such prepayment, repurchase, redemption, defeasance, acquisition or
other payment, the Borrower would be in compliance, on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio,
calculated as of the last day of the Test Period most recently ended on or prior to the date of any such payment, as if such prepayment,
repurchase, redemption, defeasance, acquisition or other payment and any other transactions being consummated in connection therewith
occurred on the first day of such Test Period, of no greater than 4.25:1.00 after giving pro forma effect thereto, (B) in an aggregate
amount not to exceed the Available Amount at the time of such prepayment, repurchase, redemption, defeasance, acquisition or other payment,
so long as no Event of Default has occurred and is continuing or would result therefrom, (C) in an aggregate amount not to exceed the
Available Equity Amount at the time of such prepayment, redemption, repurchase, defeasance, acquisition or other payment, (D) in
an aggregate amount not to exceed the portion, if any, of the Restricted Payment Amount, on the relevant date of determination that the
Borrower elects to apply pursuant to this clause (D), (E) any purchase, repurchase, redemption, defeasance or other acquisition or retirement
of Junior Debt Incurred pursuant to Section 10.1(j) (other than Indebtedness Incurred (I) to provide all or any portion of the funds
utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary
or was otherwise acquired by the Borrower or a Restricted Subsidiary or (II) otherwise in connection with or contemplation of such acquisition),
so long as such purchase, repurchase, redemption, defeasance or other acquisition or similar payment is made or deposited with a trustee
or other similar representative of the holders of such Junior Debt contemporaneously with, or substantially simultaneously with, the
closing of the Acquisition under which such Junior Debt is Incurred, (F) any mandatory redemption, repurchase, retirement, termination
or cancellation of Disqualified Capital Stock (to the extent such Disqualified Capital Stock constitutes Indebtedness and was Incurred
in compliance with Section 10.1, (G) [reserved] and (H) the payment, redemption, repurchase, retirement, termination or cancellation
of Indebtedness within 60 days of the date of the Redemption Notice if, at the date of any payment, redemption, repurchase, retirement,
termination or cancellation notice in respect thereof (the “Redemption Notice”), such payment, redemption, repurchase,
retirement termination or cancellation would have complied with another provision of this Section 10.7(a); provided that such
payment, redemption, repurchase, retirement termination or cancellation shall reduce capacity under such other provision.
Notwithstanding
the foregoing and for the avoidance of doubt, nothing in this Section 10.7 shall prohibit (i) the repayment, prepayment, repurchase,
redemption or other payment of intercompany subordinated Indebtedness owed among the Borrower and/or the Restricted Subsidiaries, in
either case unless an Event of Default has occurred and is continuing and the Borrower has received a notice from the Collateral Agent
instructing it not to make or permit the Borrower and/or the Restricted Subsidiaries to make any such repayment or prepayment or (ii)
substantially concurrent transfers of credit positions in connection with intercompany debt restructurings so long as such Indebtedness
is permitted by Section 10.1 after giving pro forma effect to such transfer.
(b) The
Borrower will not, and will not permit any of the Restricted Subsidiaries to, waive, amend or modify any term or condition in any Subordinated
Indebtedness Documentation (or, in each case, any documentation governing any Permitted Refinancing Indebtedness in respect thereof)
to the extent that any such waiver, amendment or modification, taken as a whole, would be materially adverse to the interests of the
Lenders.
10.8 Negative
Pledge Clauses. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into or permit to exist any
Contractual Obligation (other than this Agreement, any other Credit Document, any Permitted Additional Debt Documents related to any
secured Permitted Additional Debt or any document governing any secured Credit Agreement Refinancing Indebtedness and any documentation
governing any Permitted Refinancing Indebtedness Incurred to Refinance any such Indebtedness) that limits the ability of the Borrower
or any Guarantor to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties
with respect to the Obligations or under the Credit Documents; provided that the foregoing shall not apply to Contractual Obligations
that in any material respect:
(i) (x)
exist on the Closing Date and (to the extent not otherwise permitted by this Section 10.8) are listed on Schedule 10.8 hereto and (y)
to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness or other obligations,
are set forth in any agreement evidencing any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness or obligation
so long as such Permitted Refinancing Indebtedness does not materially expand the scope of such Contractual Obligation (as determined
in good faith by the Borrower),
(ii) are
binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Borrower, so long
as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the
Borrower,
(iii) represent
Indebtedness of a Restricted Subsidiary of the Borrower that is not a Credit Party to the extent such Indebtedness is permitted by Section
10.1,
(iv) arise
pursuant to agreements entered into with respect to any sale, transfer, lease, license or other Disposition permitted by Section 10.4,
including customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been entered into for
the sale, transfer, lease, license or other Disposition of the Capital Stock of such Subsidiary, and applicable solely to assets under
such sale, transfer, lease, license or other Disposition,
(v) are
customary provisions in Joint Venture agreements, partnership agreements, limited liability company organizational governance document,
and other similar agreements applicable to partnerships, limited liability companies, Joint Ventures and similar Persons permitted by
Section 10.5 or Section 10.6 and applicable solely to such Persons or the transfer of ownership therein,
(vi) are
negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 10.1, but solely to the extent
any negative pledge relates to the property financed by or the subject of such Indebtedness,
(vii) are
customary restrictions on leases, subleases, service agreements, product sales, licenses and sublicenses (including with respect to Intellectual
Property) or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto,
(viii) comprise
restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 10.1 to the extent that such restrictions
apply only to the specific property or assets securing such Indebtedness,
(ix) are
customary provisions restricting subletting or assignment or transfers of any lease governing a leasehold interest of the Borrower or
any Restricted Subsidiary,
(x) are
customary provisions restricting assignment of any agreement (or the assets subject thereto) entered into in the ordinary course of business,
(xi) are
restrictions on cash or other deposits or net worth imposed (including by customers) under agreements entered into in the ordinary course
of business,
(xii) are
imposed by Applicable Law,
(xiii) are
customary net worth provisions contained in real property leases entered into by Subsidiaries of the Borrower, so long as the Borrower
has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Borrower and
its Subsidiaries to meet their ongoing obligation;
(xiv) comprise
restrictions imposed by any agreement governing Indebtedness entered into after the Closing Date and permitted under Section 10.1 that
are, taken as a whole, in the good-faith judgment of the Borrower, no more restrictive with respect to the Borrower or any Restricted
Subsidiary than customary market terms for Indebtedness of such type (and, in any event, are no more restrictive than the restrictions
contained in this Agreement), so long as the Borrower shall have determined in good faith that such restrictions will not materially
impair its obligation or ability to make any payments required hereunder,
(xv) arise
in connection with purchase money obligations for property acquired in the ordinary course of business or Financing Lease Obligations;
(xvi) arise
in connection with any agreement or other instrument of a Person or relating to Indebtedness or Capital Stock of a Person, which Person
is acquired by or merged, consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries, or any other transaction
is entered into with any such Acquisition, merger, consolidation or amalgamation, in existence at the time of such Acquisition or at
the time it merges, consolidates or amalgamates with or into the Borrower or any of its Restricted Subsidiaries or assumed in connection
with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or
the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired or redesignated;
(xvii) are
restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement
to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that
such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are the
subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property
of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xviii) are
provisions restricting the granting of a security interest in Intellectual Property contained in licenses or sublicenses by the Borrower
and its Restricted Subsidiaries of such Intellectual Property, which licenses and sublicenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such Intellectual Property);
(xix) arise
in connection with cash or other deposits imposed by agreement permitted under Section 10.2, Section 10.5 or Section 10.6 entered into
in the ordinary course of business;
(xx) 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 or restriction
does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such
Subsidiary;
(xxi) restrictions
created in connection with any Qualified Receivables Facility that, in the good faith determination of the Borrower, are necessary or
advisable to effect such Qualified Receivables Facility; and
(xxii) are
any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xxi) of this Section 10.8;
provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings
are, in the good-faith judgment of the Borrower, no more restrictive in any material respect with respect to such encumbrance and other
restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.
10.9 Passive
Holding Company; Etc.
(a) Holdings
will not conduct, transact or otherwise engage in any material business or material operations other than (i) the ownership and/or acquisition
of the Capital Stock (other than Disqualified Capital Stock) of the Borrower, (ii) the maintenance of its legal existence, including
the ability to incur fees, costs and expenses relating to such maintenance, (iii) to the extent applicable, participating in tax, accounting
and other administrative matters as a member of the consolidated group of Holdings and the Borrower, (iv) the performance of its obligations
under and in connection with the Credit Documents and any documents relating to other Indebtedness permitted under Section 10.1, (v)
any public offering of its Capital Stock or any other issuance or registration of its Capital Stock for sale or resale not prohibited
by Section 10, including the costs, fees and expenses related thereto, (vi) any transaction that Holdings is permitted to enter into
or consummate under this Section 10 and any transaction between Holdings and the Borrower or any Restricted Subsidiary permitted under
this Section 10, including (a) making any dividend or distribution or other transaction similar to a Restricted Payment (other than a
Restricted Investment) not prohibited by Section 10.6 (or the making of a loan to its Parent Entities or any Equityholding Vehicle in
lieu of any such Restricted Payment (other than a Restricted Investment) or distribution or other transaction similar to a Restricted
Payment (other than a Restricted Investment)) or holding any cash received in connection with Restricted Payments (other than Restricted
Investments) made by the Borrower in accordance with Section 10.6 pending application thereof by Holdings in the manner contemplated
by Section 10.6 (including the redemption in whole or in part of any of its Capital Stock (other than Disqualified Capital Stock) in
exchange for another class of Capital Stock (other than Disqualified Capital Stock) or rights to acquire its Capital Stock (other than
Disqualified Capital Stock) or with proceeds from substantially concurrent equity contributions or issuances of new shares of its Capital
Stock (other than Disqualified Capital Stock)), (b) making any Investment to the extent (1) payment therefor is made solely with the
Capital Stock of Holdings (other than Disqualified Capital Stock), the proceeds of Restricted Payments (other than Restricted Investments)
received from the Borrower and/or proceeds of the issuance of, or contribution in respect of the, Capital Stock (other than Disqualified
Capital Stock) of Holdings and (2) any property (including Capital Stock) acquired in connection therewith is contributed to the Borrower
or a Subsidiary Guarantor (or, if otherwise permitted by Section 10.5 or Section 10.6, a Restricted Subsidiary) or the Person formed
or acquired in connection therewith is merged with the Borrower or a Restricted Subsidiary and (c) the (w) provision of guarantees in
the ordinary course of business in respect of obligations of the Borrower or any of its Subsidiaries to suppliers, customers, franchisees,
lessors, licensees, sublicensees or distribution partners; provided, for the avoidance of doubt, that such guarantees shall not be in
respect of debt for borrowed money, (x) Incurrence of Indebtedness of Holdings contemplated by Sections 10.1(p) and 10.1(q), (y) Incurrence
of guarantees and the performance of its other obligations in respect of Indebtedness Incurred pursuant to Sections 10.1(a), 10.1(k)
and 10.1(s) and Permitted Additional Debt Incurred pursuant to Section 10.1(u) and (z) granting of Liens to the extent the Indebtedness
contemplated by subclause (y) is permitted to be secured under Sections 10.2(a), 10.2(u) and 10.2(bb), (vii) incurring fees, costs and
expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes,
(viii) providing indemnification to officers and directors and as otherwise permitted in Section 10, (ix) activities incidental to the
consummation of the Transactions, (x) organizational activities incidental to Acquisitions or similar Investments consummated by the
Borrower, including the formation of acquisition vehicle entities and intercompany loans and/or investments incidental to such Acquisitions
or similar Investments in each case consummated substantially contemporaneously with the consummation of the applicable Acquisitions
or similar Investments; provided that in no event shall any such activities include the incurrence of a Lien on any of the assets
of Holdings, (xi) the making of any loan to any officers or directors contemplated by Section 10.5, the making of any Investment in the
Borrower or any Subsidiary Guarantor or, to the extent otherwise allowed under Section 10.5 or Section 10.6, a Restricted Subsidiary
and (xii) activities incidental to the businesses or activities described in clauses (i) to (xi) of this Section 10.9.
(b) Except
in connection with the Transactions, Holdings will not consummate any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its assets and other properties,
except that Holdings may merge, amalgamate or consolidate with or into any other Person (other than the Borrower) or, in connection with
a Qualifying IPO, liquidate into the issuing entity, or otherwise Dispose of all or substantially all of its assets and property; provided
that (i) Holdings shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where Holdings
is not the continuing or surviving Person or where Holdings has been liquidated, or in connection with a Disposition of all or substantially
all of its assets, the Person formed by or surviving any such merger, amalgamation or consolidation or the Person into which Holdings
has been liquidated or to which Holdings has transferred such assets shall, in each case, be an entity organized or existing under the
laws of the United States, any state thereof, the District of Columbia or any territory thereof (Holdings or such Person, as the case
may be, being herein referred to as the “Successor Holdings”), (ii) the Successor Holdings (if other than Holdings)
shall expressly assume all the obligations of Holdings under this Agreement and the other applicable Credit Documents pursuant to a supplement
hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) each Subsidiary Guarantor, unless it is the other
party to such merger, amalgamation, consolidation, liquidation or Disposition or unless the Successor Holdings is Holdings, shall have
by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Holdings’ obligations under this Agreement,
(iv) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation, liquidation
or Disposition or unless the Successor Holdings is Holdings, shall have by a supplement to the applicable Credit Documents confirmed
that its obligations thereunder shall apply to the Successor Holdings’ obligations under this Agreement, (v) each mortgagor of
a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation, liquidation or Disposition or unless
the Successor Holdings is Holdings, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations
thereunder shall apply to the Successor Holdings’ obligations under this Agreement, (vi) Holdings shall have delivered to the Administrative
Agent an officer’s certificate stating that such merger, amalgamation, consolidation, liquidation or Disposition and any supplements
to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security
Documents, (vii) the Successor Holdings shall, immediately following such merger, amalgamation, consolidation, liquidation or Disposition,
directly or indirectly, own all Subsidiaries owned by Holdings immediately prior to such merger, amalgamation, consolidation, liquidation
or Disposition and (viii) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided
to the effect that such merger, amalgamation, consolidation, liquidation, or Disposition does not breach or result in a default under
this Agreement or any other Credit Document; provided, further, that if the foregoing are satisfied, the Successor Holdings
(if other than Holdings) will succeed to, and be substituted for, Holdings under this Agreement.
10.10 Consolidated
First Lien Debt to Consolidated EBITDA Ratio. Solely with respect to the Revolving Credit Facility and subject to the following proviso,
beginning with the Test Period ending December 31, 2017, the Borrower will not permit the Consolidated First Lien Debt to Consolidated
EBITDA Ratio as of the last day of any Test Period to be greater than 8.15:1.00; provided, however, that the Borrower shall
be required to be in compliance with this Section 10.10 with respect to any Test Period only if the sum of (A) the aggregate principal
amount of all Revolving Credit Loans and Swingline Loans plus (B) the aggregate Letter of Credit Obligations (other than (i) those Cash
Collateralized in an amount equal to the Stated Amount thereof or otherwise backstopped on terms reasonably acceptable to the Administrative
Agent and the applicable Letter of Credit Issuer and (ii) without duplication of amounts described in clause (i) above, Letter of Credit
Obligations, the aggregate Stated Amount of which do not exceed the greater of (x) $5,000,000 and (y) the Stated Amount of Existing Letters
of Credit outstanding on the Closing Date), in each case outstanding on the last day of such Test Period, exceeds 35.0% of the amount
of the Total Revolving Credit Commitment in effect on such date and.
10.11 Transactions
with Affiliates. The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, enter into any transaction with
any Affiliate of the Borrower involving aggregate payments or consideration in excess of the greater of (x) $2,500,000 and (y) 5% of
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such
transaction occurs (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date
except:
(a) such
transactions that are made on terms, when taken as a whole, not materially less favorable to the Borrower or such Restricted Subsidiary
as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with
a Person that is not an Affiliate;
(b) if
such transaction is among Holdings, the Borrower and one or more Subsidiary Guarantors or any Restricted Subsidiary or any entity that
becomes a Restricted Subsidiary as a result of such transaction;
(c) the
payment of Transaction Expenses, including the payment of all fees, expenses, bonuses and awards and the consummation of the Transactions;
(d) the
issuance of Capital Stock of any Parent Entity, any Equityholding Vehicle or the Borrower to the management of such Parent Entity, the
Borrower or any of its Subsidiaries pursuant to arrangements described in clause (m) below;
(e) the
payment of indemnities and other similar amounts and reasonable expenses incurred by the Investors and their respective Affiliates in
connection with the management or monitoring of, or the provision of other services rendered to, any Parent Entity of the Borrower, any
Equityholding Vehicle, the Borrower or any of its Subsidiaries;
(f) equity
issuances, repurchases, retirements, redemptions or other acquisitions or retirements of Capital Stock by any Parent Entity of the Borrower,
any Equityholding Vehicle or the Borrower permitted under Section 10.6 and any actions by the Borrower and its Restricted Subsidiaries
to permit the same;
(g) loans,
guarantees and other transactions by any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
to the extent permitted under Section 10 (other than by reliance on this Section 10.11);
(h) the
entry into, performance under, and making of any payments in respect of any employment, compensation and severance arrangements and health,
disability and similar insurance or benefit plans or supplemental executive retirement benefit plans or arrangements between any Parent
Entity of the Borrower, the Borrower and the Restricted Subsidiaries and their respective directors, officers, managers, employees, consultants
or independent contractors (including management and/or employee benefit plans or agreements, stock/equity/option plans, management equity
plans, subscription agreements or similar agreements pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar
rights with current or former employees, officers, managers, directors, consultants or independent contractors (or their respective Controlled
Investment Affiliates or Immediate Family Members) and stock option or incentive plans and other compensation arrangements) in the ordinary
course of business or as otherwise approved by the Board of Directors of any Parent Entity of the Borrower or the Borrower;
(i) the
payment of customary fees, compensation and reasonable out-of-pocket costs to, and benefits, indemnities and reimbursements and employment
and severance arrangements provided on behalf of, or for the benefit of, future, current or former, directors, managers, consultants,
officers, employees and independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) of
any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries in the ordinary course of
business to the extent attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(j) transactions
pursuant to permitted agreements in existence on the Closing Date and set forth on Schedule 10.11 or any amendment thereto to the extent
such an amendment is not adverse, taken as a whole, to the interests of the Lenders in any material respect as compared to the applicable
agreement in effect on the Closing Date (in the good-faith judgment of the Borrower);
(k) Restricted
Payments permitted under Section 10.6, and Investments permitted under Section 10.5;
(l) payments
(including reimbursement of out-of-pocket fees and expenses) by the Borrower and any Restricted Subsidiaries to the Investors and any
of their respective Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other
investment banking activities (including in connection with acquisitions or Dispositions, whether or not consummated), which payments
are approved by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors
of any Parent Entity of the Borrower, Holdings or the Borrower in good faith;
(m) any
issuance or transfer of Capital Stock, or other payments, awards or grants in cash, securities, Capital Stock or otherwise pursuant to,
or the funding of, employment arrangements, equity options and equity ownership plans approved by the Board of Directors of any Parent
Entity of the Borrower, any Equityholding Vehicle or the Borrower, as the case may be and the granting and performing of customary registration
rights;
(n) the
issuance and sale of any Qualified Capital Stock and any purchase by any Parent Entity of the Borrower of the Qualified Capital Stock
of the Borrower; provided that, to the extent required by Section 9.11, any Capital Stock of the Borrower so purchased shall be
pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to the Pledge Agreement;
(o) transactions
with wholly owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of
business in a manner consistent with prudent business practice followed by companies in the industry of the Borrower and its Subsidiaries;
(p) transactions
with customers, clients, suppliers, Joint Venture partners or purchasers or sellers of goods or services, in each case in the ordinary
course of business;
(q) any
contribution by any Parent Entity or Equityholding Vehicle to the capital of the Borrower;
(r) transactions
with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business and in
a manner consistent with prudent business practice followed by companies in the industry of the Borrower and its Subsidiaries;
(s) any
transaction between or among Holdings, the Borrower or any Restricted Subsidiary and any Affiliate of Holdings, the Borrower or a Joint
Venture or similar Person that would constitute an Affiliate transaction solely because Holdings, the Borrower or a Restricted Subsidiary
owns Capital Stock in or otherwise controls such Affiliate, Joint Venture or similar Person or due to the fact that a director of such
Joint Venture or similar Person is also a director of the Borrower or any Restricted Subsidiary (or any Parent Entity);
(t) Affiliate
repurchases of the Loans or Commitments to the extent permitted under this Agreement and the holding of such Loans or Commitments and
the payments and other transactions contemplated under this Agreement in respect thereof;
(u) customary
transactions effected as part of any Qualified Receivables Facility that are otherwise permitted under this Agreement;
(v) the
entering into, and payments by, any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
pursuant to tax sharing agreements among any such Parent Entity, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
on customary terms; provided that payments by Borrower and the Restricted Subsidiaries under any such tax sharing agreements shall
not exceed the excess (if any) of the amount they would pay on a standalone basis over the amount they actually pay to Governmental Authorities;
(w) transactions
in which the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent a letter from an Independent
Financial Advisor stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of view
or meets the requirements of clause (a) of this Section 10.11;
(x) payments,
loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors or
consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of the Restricted
Subsidiaries or any Parent Entity or Equityholding Vehicle and employment agreements, stock option plans and other compensatory arrangements
with any such employees, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members)
which, in each case, are approved by the Borrower in good faith;
(y) (i)
Investments by any of the Permitted Holders in securities of any Parent Entity, the Borrower or any Restricted Subsidiary (and payment
of out-of-pocket expenses incurred by such Permitted Holders in connection therewith) so long as the Investment is being offered generally
to other investors on the same or more favorable terms and (ii) payments to Permitted Holders in respect of securities or loans of the
Borrower or any of the Restricted Subsidiaries contemplated in the foregoing subclause (i) or that were acquired from Persons other than
any Parent Entity, the Borrower or any Restricted Subsidiary, in each case, in accordance with the terms of such securities or loans;
(z)
pledges of Capital Stock of Unrestricted Subsidiaries;
(aa)
the existence and performance of agreements and transactions with any Unrestricted Subsidiary that were entered into prior to the designation
of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction was permitted at the time that it was entered
into with such Restricted Subsidiary (and not entered into in contemplation of such designation) and transactions entered into by an
Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary (and
not entered into in contemplation of such designation); and
(bb)
the existence of, and performance under, customary obligations under the terms of any equityholders agreement, principal investors agreement
(including any registration rights or purchase agreement related thereto) to which any Parent Entity, Equityholding Vehicle, the Borrower
or any Restricted Subsidiary is a party as of the Closing Date (as such agreement may be amended or otherwise modified from time to time)
and any similar agreements relating to the Capital Stock of any of the foregoing which the relevant parties may enter into after the
Closing Date (except to the extent the performance of such obligations is otherwise prohibited under the terms of this Agreement).
SECTION
11. Events of Default. Upon the occurrence
of any of the following specified events (each an “Event of Default”):
11.1 Payments.
The Borrower shall (a) default in the payment when due of any principal of the Loans or (b) default, and such default shall continue
for five or more Business Days, in the payment when due of any interest on the Loans or any fees or of any other amounts owing hereunder
or under any other Credit Document (other than any amount referred to in clause 11.1(a)); or
11.2 Representations,
Etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or in any other Credit Document or
any certificate, statement, report or other document delivered or required to be delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made; or
11.3 Covenants.
Any Credit Party shall (a) default in the due performance or observance by it of any term, covenant or agreement contained in Section
9.1(e)(i), Section 9.5 (with respect to the existence of the Borrower only) or Section 10; provided that with respect to Section
10.10, (i) an Event of Default (a “Financial Performance Covenant Event of Default”) shall not occur until the expiration
of the 10th Business Day subsequent to the date the certificate calculating compliance with Section 10.10 as of the last day of any fiscal
quarter is required to be delivered pursuant to Section 9.1(d) (without giving pro forma effect to any grace period for such delivery)
with respect to such fiscal quarter or fiscal year, as applicable, and (ii) any default under Section 10.10 shall not constitute an Event
of Default with respect to any Loans or Commitments hereunder, other than the Revolving Credit Loans and the Revolving Credit Commitments,
until the date on which the Revolving Credit Loans (if any) have been accelerated, and the Revolving Credit Commitments have been terminated,
in each case, by the Required Revolving Credit Lenders, or (b) default in the due performance or observance by it of any term, covenant
or agreement (other than those referred to in Section 11.1, Section 11.2 and clause (a) of this Section 11.3) contained in this Agreement
or any other Credit Document and such default shall continue unremedied for a period of at least 30 days after receipt of written notice
by the Borrower from the Administrative Agent or the Required Lenders; or
11.4
Default Under Other Agreements. (a) The Borrower or any of the Restricted Subsidiaries shall (i) fail to make any required
payment with respect to any Indebtedness (other than any Indebtedness described in Section 11.1) in excess of $20,000,000 beyond the period
of grace, if any, provided in the instrument or agreement under which such Indebtedness was created or (ii) fail to observe or perform
any agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist (other than, (i) with respect to Indebtedness consisting of any Hedging Agreements,
termination events or equivalent events pursuant to the terms of such Hedging Agreements and (ii) secured Indebtedness that becomes due
solely as a result of the sale, transfer or other Disposition (including as a result of Recovery Event) of the property or assets securing
such Indebtedness), the effect of which default or other event or condition 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, any such Indebtedness to become due prior to its stated maturity;
provided that such failure remains unremedied or has not been waived (including in the form of an amendment) by the holders of
such Indebtedness or (b) without limiting the provisions of clause (a) above, any such Indebtedness shall be declared to be due and payable,
or required to be prepaid prior to the stated maturity thereof other than by (x) a regularly scheduled required prepayment or (y) as a
mandatory prepayment or redemption; provided that this clause (b) shall not apply to (A) Indebtedness outstanding under any Hedging
Agreements that becomes due pursuant to a termination event or equivalent event under the terms of such Hedging Agreements, (B) secured
Indebtedness that becomes due as a result of a Disposition or a Recovery Event with respect to the property or assets securing such Indebtedness
or (C) Indebtedness that is convertible into Capital Stock and converts to Capital Stock in accordance with its terms; or
11.5
Bankruptcy, Etc. Holdings, the Borrower or any Specified Subsidiary shall commence a voluntary case, proceeding or action
concerning itself under the Bankruptcy Code; or an involuntary case, proceeding or action is commenced against Holdings, the Borrower
or any Specified Subsidiary under the Bankruptcy Code and the petition is not dismissed within 60 days after commencement of the case,
proceeding or action; or Holdings, the Borrower or any Specified Subsidiary commences any other proceeding or action under any other Debtor
Relief Law of any jurisdiction whether now or hereafter in effect relating to Holdings, the Borrower or any Specified Subsidiary; or a
custodian (as defined in the Bankruptcy Code), receiver, receiver manager, trustee or similar person is appointed for, or takes charge
of, all or substantially all of the property of Holdings, the Borrower or any Specified Subsidiary; or there is commenced against Holdings,
the Borrower or any Specified Subsidiary under any other Debtor Relief Law any such proceeding or action that remains undismissed for
a period of 60 days; or any order of relief or other order approving any such case or proceeding or action is entered; or Holdings, the
Borrower or any Specified Subsidiary suffers any appointment of any custodian, receiver, receiver manager, trustee or the like for it
or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or Holdings, the Borrower or any
Specified Subsidiary makes a general assignment for the benefit of creditors; or
11.6 ERISA.
(a) With respect to any Pension Plan, the failure by Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA
Affiliate to satisfy the minimum funding standard required for any plan year or part thereof, whether or not waived, under Section
412 of the Code; with respect to any Multiemployer Plan, the failure to make any required contribution or payment; a determination
that any Pension Plan is in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA or
any Multiemployer Plan is in “endangered or critical status” within the meaning of Section 432 of the Code or Section
305 of ERISA; any Pension Plan is or shall have been terminated or is the subject of termination proceedings by the PBGC under Title
IV of ERISA (including the giving of written notice thereof); a determination that a Pension Plan or Multiemployer Plan is
“insolvent” within the meaning of Section 4245 of ERISA; with respect to any Multiemployer Plan, notification by the
administrator of such Multiemployer Plan that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred or
will be assessed Withdrawal Liability to such Multiemployer Plan; the PBGC provides written notice of its intent to terminate any
Pension Plan or to appoint a trustee to administer any Pension Plan in a manner that results in a liability under Title IV of ERISA
to the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate; an event shall have occurred or a condition shall exist
entitling the PBGC to provide written notice of its intent to terminate any Pension Plan; the Borrower, any Restricted Subsidiary
thereof or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Pension Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064 or 4069 of ERISA or Section 4971 or 4975 of the Code (including the receipt by
Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate of written notice thereof); any termination of a Foreign Plan has
occurred that gives rise to liability for Holdings, the Borrower or any Restricted Subsidiary; or any non-compliance with the
funding requirements under Applicable Law for any Foreign Plan has occurred; (b) there could result from any event or events set
forth in clause (a) of this Section 11.6 the imposition of a Lien, the granting of a security interest, or a liability, or the
reasonable likelihood of incurring a Lien, security interest or liability; and (c) such Lien, security interest or liability will or
would be reasonably likely to have a Material Adverse Effect; or
11.7
Guarantee. The Guarantee or any material provision thereof shall cease to be in full force or effect or any Guarantor thereunder
or any Credit Party shall deny or disaffirm in writing any Guarantor’s obligations under the Guarantee; or
11.8
Security Document. Any Security Document or any material provision thereof shall cease to be in full force or effect (other
than pursuant to the terms hereof or thereof or as a result of acts or omissions of the Administrative Agent, the Collateral Agent or
any Lender), or any grantor, pledgor or mortgagor thereunder or any Credit Party shall deny or disaffirm in writing any grantor’s,
pledgor’s or mortgagor’s obligations under such Security Document; or
11.9
Judgments. One or more judgments or decrees shall be entered against Holdings, the Borrower or any of the Restricted Subsidiaries
for the payment of money in an aggregate amount in excess of $20,000,000 for all such judgments and decrees for Holdings, the Borrower
and the Restricted Subsidiaries (to the extent not paid or fully covered by insurance provided by a carrier not disputing coverage) and
any such judgments or decrees shall not have been satisfied, vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof; or
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11.10
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Change of Control. A Change of Control shall occur;
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then, and in any such event, and
at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent shall, upon the written request of
the Required Lenders, by written notice to the Borrower, take any or all of the following actions: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, (ii) require that the Letter of Credit Obligations be Cash Collateralized as provided
in Section 3.8(b) and (iii) declare the principal of and any accrued interest and fees in respect of all Loans and all Obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower without prejudice to the rights of any Agent or any Lender to enforce
its claims against the Borrower, except as otherwise specifically provided for in this Agreement (provided that, if an Event of
Default specified in Section 11.5 with respect to the Borrower shall occur, no written notice by the Administrative Agent shall be required
and the Commitments shall automatically terminate and all amounts in respect of all Loans and all Obligations shall automatically become
forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower).
Notwithstanding
the foregoing, during any period during which solely a Financial Performance Covenant Event of Default has occurred and is continuing,
the Administrative Agent may with the consent of, and shall at the request of, the Required Revolving Credit Lenders take any of the foregoing
actions described in the immediately preceding paragraph solely as they relate to the Revolving Credit Lenders (versus the Lenders), the
Revolving Credit Commitments (versus the Commitments), the Revolving Credit Loans and the Swingline Loans (versus the Loans), and the
Letters of Credit.
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11.11
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Borrower’s Right to Cure.
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(a)
Financial Performance Covenant. Notwithstanding anything to the contrary contained in this Section 11, in the event that
the Borrower reasonably expects to fail (or has failed) to comply with the requirements of the Financial Performance Covenant as of the
end of any Test Period, at any time during the last fiscal quarter of such Test Period through and until the expiration of the 10th Business
Day subsequent to the date the financial statements are required to be delivered pursuant to Section 9.1(a) or Section 9.1(b) with respect
to such fiscal quarter (the “Cure Deadline”), the Borrower (or any Parent Entity thereof) shall have the right to issue
Capital Stock (other than Disqualified Capital Stock) for cash or otherwise receive cash contributions to (or, in the case of any Parent
Entity of Holdings, receive equity interests in Holdings for its cash contributions to) the Capital Stock (other than Disqualified Capital
Stock) of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of the net proceeds of
such issuance or contribution (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right; provided
such Cure Amount is received by the Borrower on or before the applicable Cure Deadline, compliance with the Financial Performance Covenant
for such Test Period shall be recalculated giving pro forma effect to the following pro forma adjustments:
(i)
Consolidated EBITDA shall be increased with respect to such applicable fiscal quarter with respect to which such Cure Amount is
received by the Borrower and any Test Period that includes such fiscal quarter, solely for the purpose of determining whether an Event
of Default has occurred and is continuing as a result of a violation of the Financial Performance Covenant and, subject to clause (c)
below, not for any other purpose under this Agreement, by an amount equal to the Cure Amount and any prepayment of Indebtedness with the
Cure Amount shall be disregarded for purposes of measuring the Financial Performance Covenant for such Test Period;
(ii)
if, after giving pro forma effect to such increase in Consolidated EBITDA, the Borrower shall then be in compliance with the requirements
of the Financial Performance Covenant, the Borrower shall be deemed to have satisfied the requirements of the Financial Performance Covenant
as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and
the applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for purposes of this Agreement;
and
(iii)
Consolidated First Lien Debt in the Test Period for which the Cure Amount is deemed applied shall be decreased solely to the extent
proceeds of the Cure Amount are applied to prepay any Indebtedness (provided that any such Indebtedness so prepaid shall be a permanent
repayment of such Indebtedness and termination of commitments thereunder) included in the calculation of Consolidated First Lien Debt;
provided that the Borrower shall have notified
the Administrative Agent in writing of the exercise of such Cure Right within five Business Days of the receipt of the Cure Amounts.
(b)
Limitation on Exercise of Cure Right. Notwithstanding anything herein to the contrary, (i) in each four fiscal-quarter period
there shall be no more than two fiscal quarters with respect to which the Cure Right is exercised, (ii) there shall be no more than five
exercises of Cure Right in the aggregate, (iii) the Cure Amount shall be no greater than the amount required for purposes of complying
with the Financial Performance Covenant as of the end of such fiscal quarter (such amount, the “Necessary Cure Amount”);
provided that, if the Cure Right is exercised prior to the date financial statements are required to be delivered for such fiscal
quarter then the Cure Amount shall be equal to the amount reasonably determined by the Borrower in good faith that is required for purposes
of complying with the Financial Performance Covenant for such fiscal quarter (such amount, the “Expected Cure Amount”),
(iv) subject to clause (c) below, all Cure Amounts shall be disregarded for purposes of determining the Applicable Margin, any baskets,
with respect to the covenants contained in the Credit Documents, any “incurrence” based financial ratio or the usage of the
Available Amount or the Available Equity Amount and (v) no borrowing shall be made under the Revolving Credit Facility (or Letters of
Credit issued, increased or extended) following a breach of the Financial Maintenance Covenant until the Cure Amount has actually been
received by the Borrower.
(c)
Expected Cure Amount. Notwithstanding anything herein to the contrary, to the extent that the Expected Cure Amount is (i)
greater than the Necessary Cure Amount, then such difference may be used for the purposes of determining any baskets (other than any previously
contributed Cure Amounts), with respect to the covenants contained in the Credit Documents, the Available Amount or the Available Equity
Amount and (ii) less than the Necessary Cure Amount, then not later than the applicable Cure Deadline, the Borrower must receive the cash
proceeds of the Cure Amount or a cash capital contribution to Holdings, which cash proceeds received by Borrower shall be equal to the
shortfall between such Expected Cure Amount and such Necessary Cure Amount.
SECTION 12. The Administrative Agent and the Collateral
Agent.
(a)
Each Lender hereby irrevocably designates and appoints UBS AG, Stamford Branch (together with any successor Administrative Agent
pursuant to Section 12.11) as Administrative Agent as the agent of such Lender under this Agreement and the other Credit Documents, and
each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Credit Document
or otherwise exist against the Administrative Agent.
(b)
Each Lender hereby appoints UBS AG, Stamford Branch (together with any successor Collateral Agent pursuant to Section 12.11) as
the Collateral Agent hereunder and authorizes the Collateral Agent to (i) take such action on its behalf and to exercise all rights, powers
and remedies and perform the duties as are expressly delegated to the Collateral Agent under such Credit Documents and (ii) exercise such
powers as are reasonably incidental thereto. For purposes of the exculpatory, liability-limiting, indemnification and other similar provisions
of this Section 12, references to the “Administrative Agent” shall be deemed to include the Collateral Agent in its
capacity as such. Each Lender hereby appoints the Collateral Agent to enter into, and sign for and on behalf of the Lenders as Secured
Parties, the Security Documents for the benefit of the Lenders and the Secured Parties.
(c)
Each Lead Arranger and each Joint Bookrunner, in its capacity as such, shall not have any obligations, duties or responsibilities
under this Agreement but shall be entitled to all benefits of this Section 12.
12.2
Limited Duties. Under the Credit Documents, the Administrative Agent (i) is acting solely on behalf of the Lenders (except
to the limited extent provided in Section 2.5(e)), with duties that are entirely administrative in nature, notwithstanding the use of
the defined term “Administrative Agent,” the terms “agent,” “administrative agent” and “collateral
agent” and similar terms in any Credit Document to refer to the Administrative Agent, which terms are used for title purposes only,
(ii) is not assuming any obligation under any Credit Document other than as expressly set forth therein or any role as agent, fiduciary
or trustee of or for any Lender or any other Secured Party and (iii) shall have no implied functions, responsibilities, duties, obligations
or other liabilities under any Credit Document, and each Lender hereby waives and agrees not to assert any claim against the Administrative
Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above.
12.3
Binding Effect. Each Lender agrees that (i) any action taken by the Administrative Agent or the Required Lenders (or, if
expressly required hereby, a greater proportion of the Lenders) or the Required Revolving Credit Lenders in accordance with the provisions
of the Credit Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of Required Lenders (or,
where so required, such greater proportion) or the Required Revolving Credit Lenders and (iii) the exercise by the Administrative Agent
or the Required Lenders (or, where so required, such greater proportion) or the Required Revolving Credit Lenders of the powers set forth
herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the
Secured Parties.
12.4
Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Credit
Documents by or through agents or attorneys-in-fact, or through their respective Related Parties, and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The exculpatory provisions of this Section 12 shall apply to any such sub-agent and
to the Related Parties of the Administrative Agent and any such sub agent. The Administrative Agent shall not be responsible for the negligence
or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment
that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
12.5 Exculpatory
Provisions. Neither the Administrative Agent nor any of its respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall (a) be liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection
with this Agreement or any other Credit Document, including, for the avoidance of doubt, any action taken by it in good faith in
connection with the entry into, or any amendment of, or any action taken in connection with, any Customary Intercreditor Agreement
contemplated by the terms hereof (except for its or such Person’s own gross negligence or willful misconduct as determined in
a final and non-appealable decision of a court of competent jurisdiction), (b) be responsible for or have any duty to ascertain or
inquire into (i) any recitals, statements, representations or warranties contained in this Agreement or any other Credit Document or
in any certificate, report, statement, agreement or other document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Credit Document, (ii) the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Credit Document, (iii) the creation, perfection priority
of any Lien purported to be created by the Credit Documents, (iv) any failure of the Borrower, any Guarantor or any other Credit
Party to perform its obligations hereunder or thereunder or the occurrence of any Default or (v) the value or the sufficiency of any
Collateral, (c) be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(d) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in
the other Credit Documents), provided that the Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Credit Document
or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor
Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any
Debtor Relief Law and (e) except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any other Credit Document, or to inspect the properties,
books or records of the Borrower. The Administrative Agent shall have no responsibility, duty or liability for monitoring or
enforcing the list of, or prohibitions on assignments or participations to, Disqualified Lenders or for any assignment or
participation to a Disqualified Lender.
12.6
Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying,
upon any writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex, electronic mail message or teletype message,
statement, order or other document or conversation believed by it to be genuine and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and treat the Lender specified in the Register with respect to
any amount owing hereunder as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Credit Document unless it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement and the other Credit Documents in accordance with a request
of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans.
12.7
Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event
that the Administrative Agent receives such a written notice, the Administrative Agent shall give notice thereof to the Lenders and the
Collateral Agent. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of the Lenders (except to the extent that this Agreement
requires that such action be taken only with the approval of the Required Lenders or each of the Lenders, as applicable).
12.8
Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents, attorneys-in- fact or Affiliates has made any representations
or warranties to it and that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Borrower,
any Guarantor or any other Credit Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent 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 appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the
Borrower, any Guarantor and any other Credit Party and made its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender or any
of their Related Parties, and based on such documents and information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make
such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and
creditworthiness of the Borrower, any Guarantor and any other Credit Party. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the business, assets, operations, properties, financial condition,
prospects or creditworthiness of the Borrower, any Guarantor or any other Credit Party that may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys- in-fact or Affiliates.
12.9
Indemnification. The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent required
to be reimbursed by the Borrower and not so reimbursed by the Borrower, and without limiting the obligation of the Borrower to do so),
ratably according to their respective portions of the Total Credit Exposure in effect on the date on which indemnification is sought (or,
if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with their respective portions of the Total Credit Exposure in effect immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents
or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent’s gross negligence or willful misconduct as determined in a final and non-appealable decision
of a court of competent jurisdiction. The agreements in this Section 12.9 shall survive the payment of the Loans and all other amounts
payable hereunder.
12.10 Agent
in Its Individual Capacity. Each of UBS AG, Stamford Branch and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower, any Guarantor and any other Credit Party as though UBS AG, Stamford
Branch was not the Administrative Agent hereunder and under the other Credit Documents. With respect to the Loans made by it, UBS
AG, Stamford Branch shall have the same rights and powers under this Agreement and the other Credit Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall
include UBS AG, Stamford Branch in its individual capacity.
12.11
Successor Agent. The Administrative Agent and/or the Collateral Agent may resign as the Administrative Agent and/or Collateral
Agent, as the case may be, upon 20 days’ prior written notice to the Lenders, the Letter of Credit Issuer, the Swingline Lender,
the other Agents and the Borrower. If the Administrative Agent and/or Collateral Agent becomes a Defaulting Lender, then such Administrative
Agent or Collateral Agent, as the case may be, may be removed as the Administrative Agent or Collateral Agent, as the case may be, at
the reasonable request of the Borrower and the Required Lenders. If the Administrative Agent and/or Collateral Agent shall resign or be
removed as the Administrative Agent and/or the Collateral Agent under this Agreement and the other Credit Documents, then (a) the Required
Lenders shall appoint from among the Lenders a successor for the Lenders within 30 days, or (b) in the case of a resignation, the Administrative
Agent and/or the Collateral Agent may, on behalf of the Lenders, appoint a successor Administrative Agent and/or the Collateral Agent,
as applicable, selected from among the Lenders. In either case, the successor shall be approved by the Borrower (which approval shall
not be unreasonably withheld and shall not be required if an Event of Default under Section 11.1 or 11.5 shall have occurred and be continuing),
whereupon such successor shall succeed to the rights, powers and duties of the Administrative Agent and/or the Collateral Agent, and the
term “Administrative Agent,” and/or “Collateral Agent,” as applicable, shall mean such successor
effective upon such appointment and approval, and the former Administrative Agent’s and/or Collateral Agent’s rights, powers
and duties as the Administrative Agent and/or the Collateral Agent shall be terminated without any other or further act or deed on the
part of such former Administrative Agent and/or Collateral Agent or any of the parties to this Agreement or any Lenders or other holders
of the Loans. If no successor has accepted appointment as Administrative Agent and/or the Collateral Agent by the date which is 30 days
following the retiring Administrative Agent’s and/or Collateral Agent’s notice of resignation, as the case may be, (x) the
retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor as provided for above
and (y) the retiring Collateral Agent’s resignation shall nevertheless thereupon become effective at such time as a successor Collateral
Agent shall have been appointed, and such successor Collateral Agent shall have accepted such appointment, in accordance with the terms
of this Section 12.11 and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments
or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may
reasonably request, in order to continue the perfection of the Liens granted or purported to be granted by the Security Documents. After
any retiring or removed Administrative Agent’s and/or the Collateral Agent’s resignation or removal as the Administrative
Agent and/or Collateral Agent, the provisions of this Section 12 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Administrative Agent and/or Collateral Agent under this Agreement and the other Credit Documents.
Any
resignation or replacement by UBS AG, Stamford Branch as Administrative Agent pursuant to this Section shall also constitute its
resignation or replacement as Letter of Credit Issuer and Swingline Lender. If UBS AG, Stamford Branch resigns or is replaced as
Letter of Credit Issuer, it shall retain all the rights, powers, privileges and duties of the Letter of Credit Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its resignation or replacement as Letter of Credit Issuer
and all Letter of Credit Obligations with respect thereto, including the right to require the Lenders to make Revolving Credit Loans
or fund risk participations in Unpaid Drawings pursuant to Sections 3.3 and 3.4. At the time such resignation or replacement shall
become effective, the Borrower shall pay to UBS AG, Stamford Branch all accrued and unpaid fees pursuant to Sections 4.1(b) and
4.1(d). After such resignation or replacement, UBS AG, Stamford Branch shall not be required to issue additional Letters of Credit
or amend or renew existing Letters of Credit or issue additional Swingline Loans. If UBS AG, Stamford Branch resigns as Swingline
Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the Lenders to make Revolving Credit Loans
or fund risk participations in outstanding Swingline Loans pursuant to Section 2.1(d)(ii). Upon the appointment by the Borrower of a
successor Letter of Credit Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other than a
Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of
the retiring Letter of Credit Issuer or Swingline Lender, as applicable, (b) the retiring Letter of Credit Issuer and Swingline
Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Credit Documents, and
(c) the successor Letter of Credit Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to UBS AG, Stamford Branch to effectively assume
the obligations of UBS AG, Stamford Branch with respect to such Letters of Credit.
12.12
Withholding Tax. To the extent the Administrative Agent reasonably believes that it is required by any Applicable Law, the
Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting
or expanding the obligations of the Credit Parties under Section 5.4, if the United States Internal Revenue Service or any authority of
the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid
to or for the account of any Lender (because the appropriate form was not delivered, was not properly executed, or because such Lender
failed to notify the Administrative Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including penalties and interest, together with all expenses incurred, including
legal expenses, allocated staff costs and any out-of-pocket expenses. The agreements in this Section 12.12 shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable hereunder. The Administrative Agent shall be entitled to
set off any amounts owing to it under Section 12.12 against any amounts otherwise payable to the applicable Lender.
12.13
Duties as Collateral Agent and as Paying Agent. Without limiting the generality of Section 12.1 above, the Collateral Agent
shall have the sole and exclusive right and authority (to the exclusion of the Lenders each Hedge Bank and each Cash Management Bank),
and is hereby authorized, to (i) act as the disbursing and collecting agent for the Secured Parties with respect to all payments and collections
arising in connection with the Credit Documents (including in any proceeding described in Section 11.5 or any other proceeds under any
other Debtor Relief Laws, and each Person making any payment in connection with any Credit Document to any Secured Party is hereby authorized
to make such payment to the Collateral Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the
claims of the Secured Parties with respect to any Obligation in any proceeding described in Section 11.5 or any other proceeds under any
other Debtor Relief Laws (but not to vote, consent or otherwise act on behalf of such Secured Party), (iii) act as collateral agent for
each Secured Party for purposes of the perfection of all Liens created by such agreements and all other purposes stated therein, (iv)
manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection
and priority of the Liens created or purported to be created by the Credit Documents, (vi) except as may be otherwise specified in any
Credit Document, exercise all remedies given to the Collateral Agent and the other Secured Parties with respect to the Collateral, whether
under the Credit Documents, applicable requirements of law or otherwise, (vii) negotiate the form of any Mortgage and (viii) execute any
amendment, consent or waiver under the Security Documents on behalf of the Secured Parties, to the extent consented to in accordance with
Section 13.1 and the terms thereof; provided, however, that the Collateral Agent hereby appoints, authorizes and directs
each Lender to act as collateral sub-agent for the Collateral Agent and the other Secured Parties for purposes of the perfection of all
Liens with respect to the Collateral, including any deposit account maintained by a Credit Party with, and cash and Cash Equivalents held
by such Secured Party and may further authorize and direct the Secured Parties to take further actions as collateral sub-agents for purposes
of enforcing such Liens or otherwise to transfer the Collateral subject thereto to the Collateral Agent, and each Secured Party hereby
agrees to take such further actions to the extent, and only to the extent, so authorized and directed.
12.14
Authorization to Release Liens and Guarantees. The Administrative Agent and the Collateral Agent are hereby irrevocably
authorized by each of the Lenders to effect any release or subordination of Liens or the Guarantees contemplated by Section 13.17 without
further action or consent by the Lenders.
12.15 Intercreditor
Agreements. The Collateral Agent is hereby authorized to enter into any Customary Intercreditor Agreement to the extent
contemplated by the terms hereof, and the parties hereto acknowledge that such Customary Intercreditor Agreement is binding upon
them. Each Lender (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Customary
Intercreditor Agreement and (b) hereby authorizes and instructs the Collateral Agent to enter into the Customary Intercreditor
Agreement and to subject the Liens on the Collateral securing the Obligations to the provisions thereof. In addition, each Lender
hereby authorizes the Collateral Agent to enter into (i) any amendments to any Customary Intercreditor Agreement, and (ii) any other
intercreditor arrangements, in the case of clauses (i), and (ii) to the extent required to give effect to the establishment of
intercreditor rights and privileges as contemplated and required by Section 10.2 of this Agreement.
Each Lender
acknowledges and agrees that any of the Agents (including UBS AG, Stamford Branch) (or one or more of their respective Affiliates) may
(but are not obligated to) act as the “Representative” or like term for the holders of Credit Agreement Refinancing Indebtedness
under the security agreements with respect thereto and/or under a Customary Intercreditor Agreement. Each Lender waives any conflict of
interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against any Agent or any of its affiliates
any claims, causes of action, damages or liabilities of whatever kind or nature relating thereto.
12.16
Secured Cash Management Agreements and Secured Hedge Agreements. Except as otherwise expressly set forth herein or in any
Guarantee or any Security Document, no Cash Management Bank or Hedge Bank that obtains the benefits of any Guarantee or any Collateral
by virtue of the provisions hereof or of any Guarantee or any Security Document shall have any right to notice of any action or to consent
to, direct or object to any action hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the
release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided
in the Credit Documents. Notwithstanding any other provision of this Section 12 to the contrary, the Administrative Agent shall not be
required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured
Cash Management Agreements and Secured Hedging Agreements unless the Administrative Agent has received written notice of such Obligations,
together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge
Bank, as the case may be.
12.17
Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or
any other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan
shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent
shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of
Credit Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders, the Letter of Credit Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, Letter of Credit Issuer and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders, Letter of Credit Issuer and the Administrative Agent under Sections 4.1 and
13.5) allowed in such judicial proceeding; and
(b)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the
Letter of Credit Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and Letter of Credit Issuer, to pay to the Administrative Agent any amount due
for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other
amounts due the Administrative Agent under Sections 4.1 and 13.5.
Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the Letter of Credit Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or Letter of Credit Issuer or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Letter
of Credit Issuer in any such proceeding.
The Secured Parties hereby
irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the
Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed
in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all
or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States,
including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar laws in any other
jurisdictions to which a Credit Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt
conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in
accordance with any Applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties
shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated
claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims
in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in
the asset or assets so purchased (or in the Capital Stock or debt instruments of the acquisition vehicle or vehicles that are used
to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more
acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles
(provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any
disposition of the assets or Capital Stock thereof shall be governed, directly or indirectly, by the vote of the Required Lenders,
irrespective of the termination of this Agreement and without giving pro forma effect to the limitations on actions by the Required
Lenders contained in clauses (i) through (vii) of Section 13.1 of this Agreement, (iii) the Administrative Agent shall be
authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of
the Lenders shall be deemed to have received a pro rata portion of any Capital Stock and/or debt instruments issued by such an
acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or
acquisition vehicle to take any further action, and (iv) to the extent that Obligations that are assigned to an acquisition vehicle
are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of
Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such
Obligations shall automatically be reassigned to the Lenders pro rata and the Capital Stock and/or debt instruments issued by any
acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be
cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
SECTION 13. Miscellaneous.
13.1
Amendments and Waivers. Except as expressly set forth in this Agreement, neither this Agreement nor any other Credit Document
(other than the Fee Letter), nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions
of this Section 13.1. Except with respect to any amendment, modification or waiver contemplated in clause (i) below, which shall only
require the consent of the Lenders expressly set forth therein and not the Required Lenders or any other majority or required percentage
of Lenders of any Class of Loans or Commitments, the Required Lenders may, or, with the written consent of the Required Lenders, the Administrative
Agent and/or the Collateral Agent shall, from time to time, (a) enter into with the relevant Credit Party or Credit Parties written amendments,
supplements or modifications hereto and to the other Credit Documents for the purpose of adding any provisions to this Agreement or the
other Credit Documents or changing in any manner the rights of the Lenders or the Credit Parties hereunder or thereunder or (b) waive,
on such terms and conditions as the Required Lenders, the Administrative Agent and/or the Collateral Agent, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Credit Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver, amendment, supplement or modification shall directly:
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(i)
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without the written consent of each Lender directly and adversely affected thereby:
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(A)
reduce or forgive the principal of any Loan (it being understood that a waiver of any condition precedent set forth in Section
6 and 7 or waiver or amendment of any Default, Event of Default or mandatory prepayment shall not constitute a reduction or forgiveness
of principal);
(B) extend
the date of any scheduled amortization payment (including any scheduled Initial Term Loan Repayment Date or any date scheduled for
the repayment of any installment of Incremental Term Loans) or the final scheduled maturity date of any Loan (other than as a result
of waiving the conditions precedent set forth in Sections 6 and 7 or other than as a result of a waiver or amendment of any Default,
Event of Default or mandatory prepayment (which shall not constitute an extension, forgiveness or postponement of any maturity
date)); provided that the foregoing shall not apply to extensions effected in accordance with Section 2.15;
(C)
reduce the amount of any fee payable hereunder or reduce the stated interest rate applicable to the Loans (it being understood
that any change (x) to the definition of “Consolidated First Lien Debt to Consolidated EBITDA Ratio” or (y) in the component
definitions thereof shall not constitute a reduction in the rate); provided that only the consent of the Required Lenders shall
be necessary (i) to waive any obligation of the Borrower to pay interest at the “default rate,” (ii) to amend Section 2.8(c)
or (iii) to waive any requirement of Section 2.14(b);
(D)
extend the date for the payment of any interest or fee payable hereunder (other than as a result of waiving the applicability of
any post-default increase in interest rates and other than as a result of a waiver or amendment of any Default, Event of Default or mandatory
prepayment (which shall not constitute an extension, forgiveness or postponement of any date for payment of principal, interest or fees));
(E)
extend the final expiration date of any Lender’s Commitment (provided that any Lender, upon the request of the Borrower,
may extend the final expiration date of its Commitments without the consent of any other Lender, including the Required Lenders); provided
that the foregoing shall not apply to extensions effected in accordance with Section 2.15;
(F)
extend the final expiration date of any Letter of Credit beyond the date specified in Section 3.1(b);
(G)
increase the aggregate amount of any Commitment of any Lender (other than (i) with respect to any Incremental Facility to which
such Lender has agreed, (ii) as a result of waiving the conditions precedent set forth in Sections 6 and 7 or (iii) as a result of a waiver
or amendment of any Default or Event of Default (which shall not constitute an extension or increase of any commitment));
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(H)
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decrease or forgive any Repayment Amount; or
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(I)
amend the application of proceeds under Section 5.4 of the Security Agreement or Section 12(b) of the Pledge Agreement; or
(ii)
reduce the percentages specified in the definition of the term “Required Revolving Credit Lenders” without the
written consent of all Revolving Credit Lenders, or
(iii)
amend, modify or waive any provision of this Section 13.1 or reduce the percentages specified in the definition of the term “Required
Lenders” or consent to the assignment or transfer by the Borrower of its rights and obligations under any Credit Document to which
it is a party (except as permitted pursuant to Section 10.3), in each case without the written consent of each Lender, or
(iv)
amend, modify or waive any provision of Section 12 without the written consent of then- current Administrative Agent and/or the
Collateral Agent, as applicable, or
(v)
amend, modify or waive any provision of Section 2.16 (to the extent applicable to it) or Section 3 without the written consent
of the Letter of Credit Issuer, or
(vi)
amend, modify or waive any provisions hereof relating to Swingline Loans without the written consent of the Swingline Lender, or
(vii)
subject to any applicable Customary Intercreditor Agreement, release all or substantially all of the value of the Guarantors under
the Guarantee (except as expressly permitted by the Guarantee), or release all or substantially all of the Collateral under the Security
Documents (except as expressly permitted by the Security Documents), in each case without the prior written consent of each Lender.
provided, further,
that (A) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement
of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class)
may be effected by an agreement or agreements in writing entered into by Holdings, the Borrower, and the requisite percentage in
interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were
the only Class of Lenders hereunder at the time and (B) any provision of this Agreement or any other Credit Document may be amended
by an agreement in writing entered into by Holdings, the Borrower and the Administrative Agent to cure any ambiguity, omission,
defect or inconsistency (including, without limitation, amendments, supplements or waivers to any of the Security Documents,
guarantees, intercreditor agreements or related documents executed by any Credit Party or any other Subsidiary in connection with
this Agreement if such amendment, supplement or waiver is delivered in order to cause such Security Documents, guarantees,
intercreditor agreements or related documents to be consistent with this Agreement and the other Credit Documents) so long as, in
each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative
Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the
Required Lenders stating that the Required Lenders object to such amendment; provided that the consent of the Lenders or the
Required Lenders, as the case may be, shall not be required to make any such changes necessary to be made in connection with (w) any
borrowing of Incremental Term Loans to effect the provisions of Section 2.14, (x) the provision of any Incremental Revolving Credit
Commitment Increase or any Additional/Replacement Revolving Credit Commitments, (y) in connection with an amendment that addresses
solely a re-pricing transaction in which any Class of Term Loans is refinanced with a replacement Class of term loans bearing (or is
modified in such a manner such that the resulting term loans bear) a lower Effective Yield for which only the consent of the Lenders
holding Term Loans subject to such permitted repricing transaction that will continue as a Lender in respect of the repriced tranche
of Term Loans or modified Term Loans or (z) changes otherwise to effect the provisions of Section 2.14, 2.15, 2.17 or 10.2(a) and
(C) Holdings, the Borrower and the Administrative Agent may, without the input or consent of the other Lenders, (i) negotiate the
form of any Mortgage as may be necessary or appropriate in the opinion of the Collateral Agent and (ii) effect changes to this
Agreement that are necessary and appropriate to provide for the mechanics contemplated by the offering process set forth in Section
13.6(g)(i)(B) herein.
Notwithstanding
the foregoing, only the consent of the Required Revolving Credit Lenders shall be required to (and only the Required Revolving Credit
Lenders shall have the ability to) waive, amend, supplement or modify the covenant set forth in Section 10.10 (including any defined terms
as they relate thereto).
Notwithstanding
the foregoing, the Administrative Agent and the Collateral Agent may, without the consent of any Lender, enter into any amendment to the
Security Documents or a Customary Intercreditor Agreement contemplated by Section 10.2(a) or 10.2(u).
To the extent
notice has been provided to the Administrative Agent pursuant to the definition of Credit Agreement Refinancing Indebtedness, Permitted
Additional Debt or Permitted Refinancing Indebtedness or pursuant to Sections 2.14(c), 10.1(k)(i) or 10.1(s) with respect to the inclusion
of any Previously Absent Financial Maintenance Covenant, this Agreement shall be automatically and without further action on the part
of any Person hereunder and notwithstanding anything to the contrary in this Section 13.1 deemed modified to include such Previously Absent
Financial Maintenance Covenant on the date of the Incurrence of the applicable Indebtedness to the extent required by the terms of such
definition or section.
13.2
Notices; Electronic Communications. Notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:
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(a)
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if to the Borrower, Holdings or any other Credit Party, to it at:
c/o Wirepath LLC
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1800 Continental Boulevard, Suite 200
Charlotte, NC 28273
Attention: [*****]
Tel: [*****]
Electronic mail: [*****]
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(b)
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if to the Administrative Agent, Collateral Agent or Swingline Lender to it at:
UBS AG, Stamford Branch
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Attention: Structured Finance Processing
600 Washington Blvd., 9th Floor
Stamford, CT 06901
Facsimile: [*****]
Telephone: [*****]
Email: [*****]
and
(c)
if to a Lender or Letter of Credit Issuer, to it at its address (or fax number) set forth on Schedule 13.2 or in the Assignment
and Acceptance, Incremental Agreement or documents relating to any Refinancing pursuant to which such Lender shall have become a party
hereto.
All notices
and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch
by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this
Section 13.2 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 13.2. Notices
and other communications may also be delivered by e-mail to the email address of a representative of the applicable Person provided from
time to time by such Person.
The Borrower
hereby agrees, unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below has not been
provided by the Administrative Agent to the Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative Agent
all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit Documents
or to the Lenders under Section 9, including all notices, requests, financial statements, financial and other reports, certificates and
other information materials, but excluding any such communication that (i) is or relates to a Notice of Borrowing or a notice pursuant
to Section 2.6, (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor,
(iii) provides notice of any Default or Event of Default under this Agreement or any other Credit Document or (iv) is required to be delivered
to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder
(all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium that is properly identified in a format reasonably acceptable to the Administrative Agent
to an electronic mail address as directed by the Administrative Agent. In addition, the Borrower agrees, and agrees to cause its Subsidiaries,
to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the
Credit Documents but only to the extent requested by the Administrative Agent.
The
Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the
Borrower Materials on Intralinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non- public information
with respect to Holdings (or any Parent Entity thereof) or the Borrower or any of their respective securities) (each, a
“Public Lender”). The Borrower hereby agrees that (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Agents and the Lenders to treat the Borrower Materials as not containing any
material non-public information with respect to Holdings (or any Parent Entity thereof) or the Borrower or any of their respective
securities for purposes of United States federal securities laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 13.16); (y) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public
Investor”; and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.”
Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the
Borrower notifies the Administrative Agent promptly that any such document contains material non-public information: (1) the Credit
Documents, (2) notification of changes in the terms of the Credit Facilities and (3) all information delivered pursuant to Section
9.01(a) and (b).
Each Public Lender
agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender’s compliance procedures and Applicable Law, including United States federal securities laws, to make reference
to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to Holdings (or any Parent Entity thereof) or the Borrower or any of their respective securities
for purposes of United States federal securities laws.
THE PLATFORM
IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED
PARTIES WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY
FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE
ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE
AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY OTHER AGENT OR ANY OTHER PERSON FOR DAMAGES
OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR NOTICES THROUGH THE PLATFORM, ANY OTHER ELECTRONIC PLATFORM OR ELECTRONIC MESSAGING
SERVICE, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL DECISION BY A COURT OF COMPETENT JURISDICTION TO HAVE
RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT.
The Administrative
Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that receipt
of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute
effective delivery of the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees to notify the Administrative
Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing
notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice
the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Credit Document in any other
manner specified in such Credit Document.
The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices, Notices of Borrowing and Letter
of Credit Requests) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. All telephonic notices to the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.
The words “execution,”,
“execute” “signed,” “signature,” and words of like import in or related to any document to be signed
in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Acceptances, amendments
or other modifications, Notices of Borrowing, waivers and consents) shall be deemed to include electronic signatures, the electronic matching
of assignment terms and contract formations on electronic platforms approved by the Administrative Agent or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary
the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly
agreed to by the Administrative Agent pursuant to procedures approved by it; provided, further, that electronic signatures
from Lenders (including assignees) delivered pursuant to procedures in effect on the site maintained by the Administrative Agent with
respect to the Facilities as of the Closing Date shall be acceptable to the Administrative Agent. For the avoidance of doubt, delivery
of an executed counterpart of a signature page by facsimile or other electronic imaging means (e.g. “.pdf” or “.tif”)
shall be effective as delivery of a manually executed counterpart, and shall not be considered an electronic signature.
13.3
No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent,
the Collateral Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Credit Documents shall operate
as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
13.4
Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Credit Documents
and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery
of this Agreement and the making of the Loans hereunder.
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13.5
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Payment of Expenses; Indemnification.
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(a) The
Borrower agrees (i) to pay or reimburse each of the Agents, the Lead Arrangers and the Joint Bookrunners for all their reasonable
and documented or invoiced out-of-pocket costs and expenses (without duplication) associated with the syndication of the Initial
Term Loan Facility and the Revolving Credit Facility and incurred in connection with the development, preparation, execution and
delivery of, and any amendment, supplement, modification to, waiver and/or enforcement of this Agreement and the other Credit
Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges of Davis Polk &
Wardwell LLP and, to the extent necessary, a single firm of local counsel in each appropriate local jurisdiction (which may include
a single special counsel acting in multiple jurisdictions) or otherwise retained with the Borrower’s consent (such consent not
to be unreasonably withheld or delayed), and (ii) to pay or reimburse each of the Agents for all their reasonable and documented or
invoiced out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents, including the reasonable fees, disbursements and other charges
of one firm or counsel to the Agents, and, to the extent necessary, a single firm of local counsel in each appropriate local
jurisdiction (which may include a single special counsel acting in multiple jurisdictions) or otherwise retained with the
Borrower’s consent (such consent not to be unreasonably withheld or delayed), and (iii) to pay, indemnify and hold harmless
each Lender, each Agent, the Letter of Credit Issuer, the Swingline Lender, each Lead Arranger and each Joint Bookrunner and their
respective Related Parties (without duplication) (the “Indemnified Parties”) from and against any and all losses,
claims, damages, liabilities or penalties (collectively, “Losses”) of any kind or nature whatsoever and the
reasonable and documented and invoiced out-of-pocket expenses, joint or several, to which any such Indemnified Party may become
subject, in each case to the extent of any such Losses and related expenses, to the extent arising out of, resulting from, or in
connection with any action, claim, litigation, investigation or other proceeding (including any inquiry or investigation of the
foregoing) (any of the foregoing, a “Proceeding”) (regardless of whether such Indemnified Party is a party
thereto or whether or not such Proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any other
third person) and, subject to Section 13.5(e) to reimburse each such Indemnified Party promptly for any reasonable and documented
and invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to or defending any of the
foregoing (which in the case of legal fees shall be limited to the reasonable and documented or invoiced out-of-pocket fees,
expenses, disbursements and other charges of a single firm of counsel for all Indemnified Parties, taken as a whole and, to the
extent necessary, a single firm of local counsel in each appropriate local jurisdiction (which may include a single special counsel
acting in multiple jurisdictions) (and, in the case of an actual or perceived conflict of interest where the Indemnified Party
affected by such conflict notifies the Borrower of any existence of such conflict and in connection with the investigating,
responding to or defending any of the foregoing has retained its own counsel, of one other firm of counsel for such affected
Indemnified Party)), relating to the Transactions or the execution, delivery, enforcement, performance and administration of this
Agreement, the other Credit Documents and any such other documents or the use of the proceeds of the Loans or Letters of Credit (all
the foregoing in this clause (iii), collectively, the “indemnified liabilities”); provided that this
clause (iii) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax
claim; and provided, further, that the Borrower shall have no obligation hereunder to any Indemnified Party with
respect to indemnified liabilities to the extent arising from (a) the gross negligence, bad faith or willful misconduct of such
Indemnified Party or any of its Related Parties as determined in a final and non-appealable decision of a court of competent
jurisdiction, (b) a material breach of the obligations of such Indemnified Party or any of its Related Parties under the terms of
this Agreement or any other Credit Document by such Indemnified Party or any of its Related Parties as determined in a final and
non-appealable decision of a court of competent jurisdiction, (c) in addition to clause (b) above, in the case of any Proceeding
initiated by Holdings, the Borrower or any Restricted Subsidiary against the relevant Indemnified Party, a breach of the obligations
of such Indemnified Party or its Related Parties under the terms of this Agreement or any other Credit Document as determined in a
final and non-appealable decision by a court of competent jurisdiction, or (d) any Proceeding brought by any Indemnified Party
against any other Indemnified Party that does not involve an act or omission by Holdings, the Borrower or its Restricted
Subsidiaries; provided that each of the Agents, the Letter of Credit Issuer, the Swingline Lender, the Lead Arrangers and the
Joint Bookrunners, in each case to the extent fulfilling their respective roles in their capacities as such, shall remain
indemnified in respect of such a Proceeding, to the extent that none of the exceptions set forth in clause (a), (b) or (c) of the
immediately preceding proviso applies to such Person at such time. All amounts payable under this Section 13.5(a) shall be paid
within 30 days after receipt by the Borrower of written demand and an invoice relating thereto setting forth such expense in
reasonable detail. The agreements in this Section 13.5 shall survive repayment of the Loans and all other amounts payable hereunder
and the termination of the Obligations.
(b)
No Credit Party nor any Indemnified Party shall have any liability for any special, punitive, indirect or consequential damages
(including any loss of profits, business or anticipated savings) in connection with this Agreement or any other Credit Document or arising
out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing shall
not limit the Borrower’s indemnification and reimbursement obligations to the Indemnified Parties pursuant to Section 13.5(a)(iii),
to the extent that such special, punitive, indirect or consequential damages are included in any claim by a third party unaffiliated with
any of the Indemnified Parties with respect to which the applicable Indemnified Party is entitled to indemnification under Section 13.5(a)(iii).
No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent that such damages have resulted from
the willful misconduct, bad faith or gross negligence of any Indemnified Party or any of its Related Parties as determined by a final
and non-appealable decision of a court of competent jurisdiction.
(c) No
Credit Party shall be liable for any settlement of any Proceeding effected without written consent of the Borrower (which consent
shall not be unreasonably withheld or delayed, it being understood that the withholding of consent due to non-satisfaction of any of
the conditions described in clauses (i) and (ii) of paragraph (d) below
(with “the Borrower” being substituted for “Indemnified Party” in each such clause) shall be deemed
reasonable), but if settled with the Borrower’s written consent or if there is a final and non-appealable judgment by a court
of competent jurisdiction for the plaintiff in any such Proceeding, each Credit Party agrees to indemnify and hold harmless each
Indemnified Party from and against any and all Losses and reasonable and documented or invoiced legal or other out-of-pocket
expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this
Section 13.5. If any Person has reimbursed any Indemnified Party for any legal or other expenses in accordance with such request and
there is a final and non-appealable determination by a court of competent jurisdiction that the Indemnified Party was not entitled
to indemnification or contribution rights with respect to such payment pursuant to this Section 13.5, then the Indemnified Party
shall promptly refund such amount.
(d)
No Credit Party shall without the prior written consent of any Indemnified Party (which consent shall not be unreasonably withheld
or delayed, it being understood that the withholding of consent due to non- satisfaction of any of the conditions described in clauses
(i) and (ii) of this sentence shall be deemed reasonable), effect any settlement of any pending or threatened Proceeding in respect of
which indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release
of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability or claims that are
the subject matter of such Proceeding and (ii) does not include any statement as to or any admission of fault, culpability, wrongdoing
or a failure to act by or on behalf of any Indemnified Party.
(e)
In case any proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such
Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any proceeding; provided,
however, that the failure to do so will not relieve the Borrower from any liability that it may have to such Indemnified Party
hereunder, except to the extent that the Borrower is materially prejudiced by such failure. Notwithstanding the above, following such
notification, the Borrower may elect in writing to assume the defense of such proceeding, and, upon such election, the Borrower will not
be liable for any legal costs subsequently incurred by such Indemnified Party (other than reasonable costs of investigation and providing
evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Party
in a timely manner, (ii) counsel provided by the Borrower reasonably determines its representation of such Indemnified Party would present
it with a conflict of interest or (iii) the Indemnified Party reasonably determines that there are actual conflicts of interest between
the Borrower and the Indemnified Party, including situations in which there may be legal defenses available to the Indemnified Party which
are different from or in addition to those available to the Borrower.
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13.6
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Successors and Assigns; Participations and Assignments.
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(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except that
(i) except as set forth in Section 10.3, the 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 the 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 this Section. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), Participants (to
the extent provided in Section 13.6(d)) and, to the extent expressly contemplated hereby, the Indemnified Parties) 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 13.6(b)(ii), 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 its Commitments and the Loans at the time
owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the
Borrower; provided that no consent of the Borrower shall be required (x) for an assignment of any Term Loan to a Lender, an
Affiliate of a Lender or an Approved Fund (unless increased costs would result therefrom) or (y) if an Event of Default under
Section 11.1 or an Event of Default with respect to the Borrower under Section 11.5 has occurred and is continuing; provided, further,
that the Borrower shall be deemed to have consented to any such assignment of a Term Loan unless it shall object thereto by written
notice to the Administrative Agent within ten Business Days after having received written notice thereof; provided, further, that it
shall be understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in
order for such assignment to comply with Applicable Law, the Borrower would be required to obtain the consent of, or make any filing
or registration with, any Governmental Authority, and
(B)
(i) in the case of Term Loans or Commitments in respect of Term Loans, the Administrative Agent; provided that no consent
of the Administrative Agent shall be required for an assignment of any Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund or to any Purchasing Borrower Party or any Affiliated Lender and (ii) in the case of Revolving Credit Commitments, Revolving Credit
Loans, Additional/Replacement Revolving Credit Commitments or Additional/Replacement Revolving Credit Loans, the Administrative Agent,
the Swingline Lender and the Letter of Credit Issuer.
Notwithstanding the foregoing or
anything to the contrary set forth herein, any assignment of any Loans to a Purchasing Borrower Party or any Affiliated Lender shall also
be subject to the requirements of Section 13.6(g).
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(ii)
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Assignments shall be subject to the following additional conditions:
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(A)
except in the case of (i) an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) an assignment of the
entire remaining amount of the assigning Lender’s Commitments or Loans of the applicable Class, the amount of the Commitments or
Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less than, in the case of Revolving Credit Commitments or Revolving
Credit Loans, Additional/Replacement Revolving Credit Commitments or Additional/Replacement Revolving Credit Loans, $5,000,000 (or an
integral multiple of
$1,000,000 in excess thereof), or,
in the case of Initial Term Loan Commitments, Incremental Term Loan Commitments or Term Loans, $1,000,000 (or an integral multiple of
$1,000,000 in excess thereof), unless each of the Borrower and the Administrative Agent otherwise consents; provided that no such
consent of the Borrower shall be required if an Event of Default under Section 11.1 or Section 11.5 with respect to the Borrower has occurred
and is continuing; provided, further, that contemporaneous assignments to a single assignee made by Affiliated Lenders or
related Approved Funds or by a single assignor to related Approved Funds shall be aggregated for purposes of meeting the minimum assignment
amount requirements stated above;
(B)
subject to the terms of Section 13.7(c), the parties to each assignment shall (x) execute and deliver to the Administrative Agent
an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent or (y) if previously agreed with
the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Acceptance, in each case, together
with a processing fee of $3,500 (it being understood that such recordation fee shall not apply to any assignment by any of the Lead Arrangers,
Joint Bookrunners or any of their respective Affiliates hereunder in connection with the primary syndication of the Initial Term Loan
Facility); provided that the Administrative Agent may, in its sole discretion, elect to waive or reduce such processing and recordation
fee in the case of any assignment, including assignments effected pursuant to the provisions of Section 13.7;
(C)
the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax form required by Section 5.4 and an
administrative questionnaire in a form approved by the Administrative Agent in which the assignee designates one or more credit contacts
to whom all syndicate-level information (which may contain material non-public information about the Credit Parties and their Related
Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s
compliance procedures and Applicable Laws, including Federal and state securities laws; and
(D)
each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (D) shall not prohibit any Lender from
assigning all or a portion of its rights and obligations among separate tranches of Loans (if any) on a non-pro rata basis.
Notwithstanding
the foregoing or anything to the contrary set forth herein (i) any assignment of any Loans or Commitments to a Purchasing Borrower Party
or an Affiliated Lender shall also be subject to the requirements set forth in Section 13.6(g) and (ii) no natural person may be an Eligible
Assignee with respect to any Loans or Commitments.
For the purpose of this Section 13.6(b), the term “Approved
Fund” has the following meaning:
“Approved
Fund” means any Person (other than a natural person) that is primarily engaged or advises funds or other investment vehicles
that are engaged in making, purchasing, holding or investing in commercial loans, bonds and similar extensions of credit or securities
in the ordinary course of business and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers, advises or manages a Lender.
(iii)
Subject to acceptance and recording thereof pursuant to Section 13.6(b)(vi), from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall
cease to be a party hereto, but shall continue to be entitled to the benefits and subject to the requirements of Sections 2.10, 2.11,
5.4 and 13.5); provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting
Lender will constitute a waiver or release of any claim of any other party hereto against such Defaulting Lender arising from such Lender’s
having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this Section 13.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 13.6(d).
(iv) By
executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed
to confirm to 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 its Initial Term Loan
Commitment, Incremental Term Loan Commitment, Revolving Credit Commitment and Additional/Replacement Revolving Credit Commitment,
and the outstanding balances of its Loans, in each case without giving pro forma effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (B) except as set forth in (A) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto, or the financial condition of
Holdings, the Borrower or any Subsidiary or the performance or observance by Holdings, the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto; (C) such
assignee represents and warrants that (x) it is legally authorized to enter into such Assignment and Acceptance and (y) to the
extent that such assignee has received, upon its request, a list of Disqualified Lenders, it is not a Disqualified Lender or an
Affiliate of a Disqualified Lender; (D) such assignee confirms that it has received a copy of this Agreement, together with copies
of the most recent financial statements referred to in Section 8.9 or delivered pursuant to Section 9.1 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;
(E) such assignee will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender
or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the
other Credit Documents as are delegated to the Administrative Agent and the Collateral Agent, respectively, 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.
(v)
The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative
Agent’s Office in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans (and interest thereon) and any payment
made by the Letter of Credit Issuer under any Letter of Credit owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). Further, the Register shall contain the name and address of the Administrative Agent and the lending office
through which each such Person acts under this Agreement. The entries in the Register shall be conclusive, absent manifest error, and
the Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders shall treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection
by (x) the Borrower and each Letter of Credit Issuer, (y) any Agent and (z) any Lender (solely with respect to its own outstanding Loans
and Commitments), in each case, at any reasonable time and from time to time upon reasonable prior notice.
(vi)
Upon its receipt of and, if required, consent to, a duly completed Assignment and Acceptance executed by an assigning Lender and
an assignee, the assignee’s completed administrative questionnaire and any tax form required by Section 5.4 (unless the assignee
shall already be a Lender hereunder) and any written consent to such assignment required by Section 13.6(b)(i), the Administrative Agent
shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall
be effective for purposes of this Agreement unless and until it has been recorded in the Register as provided in this paragraph.
(c)
Notwithstanding any provision to the contrary, any Lender may assign to one or more wholly owned special purpose funding vehicles
(each, an “SPV”) all or any portion of its funded Loans (without the corresponding Commitment), without the consent
of any Person or the payment of a fee, by execution of a written assignment agreement in a form agreed to by such assigning Lender and
such SPV, and may grant any such SPV the option, in such SPV’s sole discretion, to provide the Borrower all or any part of any Loans
that such assigning Lender would otherwise be obligated to make pursuant to this Agreement. Such SPVs shall have all the rights which
a Lender making or holding such Loans would have under this Agreement, but no obligations. Any such assigning Lender shall remain liable
for all its original obligations under this Agreement, including its Commitment (although the unused portion thereof shall be reduced
by the principal amount of any Loans held by an SPV). Notwithstanding such assignment, the Administrative Agent and the Borrower may deliver
notices to such assigning Lender (as agent for the SPV) and not separately to the SPV unless the Administrative Agent and the Borrower
are requested in writing by the SPV to deliver such notices separately to it. Notwithstanding anything herein to the contrary, (i) neither
the grant to the SPV nor the exercise by any SPV of such option will increase the costs or expenses or otherwise change the obligations
of the Borrower under this Agreement and the other Credit Documents, except, in the case of Sections 2.10, 2.11, 3.5 or 5.4, where (A)
the increase or change results from a change in any Applicable Law after the SPV becomes an SPV and the assigning Lender notifies the
Borrower in writing of such increase or change no later than ninety (90) days after such change in Applicable Law becomes effective or
(B) the grant was made with the Borrower’s prior written consent, (ii) the assigning Lender shall for all purposes, including the
approval of any amendment, waiver or other modification of any provision of any Credit Document and the receipt of any notices provided
by the Administrative Agent and the Borrower (as agent for the SPV) remain the Lender of record hereunder and (iii) no SPV shall be liable
for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the assigning Lender).
The Borrower shall, at the request of any such assigning Lender, execute and deliver to such Person as such assigning Lender may designate,
a Note, substantially in the form of Exhibit F-1 or F-2, in the amount of such assigning Lender’s original Note to evidence the
Loans of such assigning Lender and related SPV.
(d) (i)
Any Lender may, without the consent of the Borrower, the Administrative Agent, the Collateral Agent, any Letter of Credit Issuer or
the Swingline Lender, sell participations to one or more banks or other entities, other than to any Disqualified Lender (to the
extent that the list of Disqualified Lenders has been made available to the Lenders), Holdings, the Borrower or any of its
Subsidiaries, (each, 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 Borrower, the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer 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 a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement or any other Credit Document; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 13.1 that affects such Participant. Subject to paragraph (d)(ii) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits (and subject to the requirements) of Sections 2.10,
2.11, 5.4 and 13.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section
13.6(b). To the extent permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section 13.8(b) as
though it were a Lender; provided such Participant agrees to be subject to Section 13.8(a) as though it were a Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under Sections 2.10, 2.11, 3.5 or 5.4 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant, unless (A) the entitlement to a
greater payment resulted from a change in any Applicable Law after the Participant became a Participant and the participating Lender
notifies the Borrower in writing of such entitlement to a greater payment no later than ninety (90) days after such change in
Applicable Law becomes effective or (B) the sale of the participation to such Participant is made with the Borrower’s prior
written consent. Each Lender having sold a participation in any of its Obligations, acting as a non-fiduciary agent of the Borrower
solely for this purpose, shall establish and maintain at its address a record of ownership, in which such Lender shall register by
book entry (A) the name and address of each such Participant (and each change thereto, whether by assignment or otherwise) and (B)
the rights, interest or obligation of each such Participant in any Obligation, in any Commitment and in any right to receive any
interest or principal payment hereunder (such register, a “Participant Register”); provided that no Lender
shall have any obligation to disclose all or any portion of its Participant Register (including the identity of any Participant or
any information relating to a Participant’s interest in any Obligation or Commitment) to any Person except to the extent that
such disclosure is necessary to establish that such Obligation or Commitment is in registered form under Section 5f.103-1(c) of the
United States Treasury Regulations. The entries in the Participant Register shall be conclusive, absent manifest error, and the
parties shall treat the Person listed in the Participant Register as the Participant for all purposes of this Agreement,
notwithstanding notice to the contrary.
(e)
Any Lender may, without the consent of the Borrower, the Collateral Agent or the Administrative Agent, at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge
or assignment to secure obligations to a Federal Reserve Bank or any other central bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. In order to
facilitate such pledge or assignment, the Borrower hereby agrees that, upon request of any Lender at any time and from time to time after
the Borrower has made its initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower’s own expense,
a Note evidencing the Loans owing to such Lender.
(f)
Subject to Section 13.16, the Borrower authorizes each Lender to disclose to any Participant, secured creditor of such Lender or
assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s
possession concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower and its Affiliates
pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower and its Affiliates in connection
with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement.
(g)
(i) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of its Term
Loans to any Purchasing Borrower Party or any Affiliated Lender in accordance with Section 13.6(b) (which assignment, if to a Purchasing
Borrower Party, will not, except for purposes of making the calculations set forth in Section 5.2(a)(ii), constitute a prepayment of Loans
for any purposes of this Agreement and the other Credit Documents); provided that:
(A)
with respect to any assignment to a Purchasing Borrower Party, no Event of Default has occurred or is continuing or would result
therefrom;
(B)
with respect to any such assignment to a Purchasing Borrower Party, either (x) such Purchasing Borrower Party shall offer to all
Lenders within any Class of Term Loans (but not, for the avoidance of doubt, to every Class) to buy the Term Loans within such Class on
a pro rata basis based on the then outstanding principal amount of all Term Loans of such Class, pursuant to procedures to be reasonably
agreed between the Administrative Agent and the Borrower or (y) such assignment shall be effected pursuant to an open market purchase;
(C)
the assigning Lender and Purchasing Borrower Party or Non-Debt Fund Affiliate purchasing such Lender’s Term Loans, as applicable,
shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit I or such other form
as shall be reasonably acceptable to the Borrower and the Administrative Agent (an “Affiliated Lender Assignment and Acceptance”)
in lieu of an Assignment and Acceptance;
(D)
for the avoidance of doubt, Lenders shall not be permitted to assign Revolving Credit Commitments, Revolving Credit Loans, Additional/Replacement
Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments, Extended Revolving Credit Commitments or Extended Revolving
Credit Loans to any Purchasing Borrower Party or any Affiliated Lender;
(E) any
Term Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness of such
assignment and will thereafter no longer be outstanding for any purpose hereunder;
(F) no
Purchasing Borrower Party may use the proceeds from Revolving Credit Loans, Extended Revolving Credit Loans or Swingline Loans or Additional/Replacement
Revolving Credit Loans (or any other revolving credit facility that is effective in reliance on Section 10.1(a) or Section 10.1(u)) to
purchase any Term Loans;
(G)
no Term Loan may be assigned to a Non-Debt Fund Affiliate pursuant to this Section 13.6(g) if, after giving pro forma effect to
such assignment, Non-Debt Fund Affiliates in the aggregate would own in excess of 25% of the Term Loans of any Class then outstanding
(determined as of the time of such purchase);
(H)
any purchases or assignments of Loans by a Purchasing Borrower Party or a Non-Debt Fund Affiliate made through “dutch auctions”
shall (i) be conducted pursuant to procedures to be established by the applicable “auction agent” that are consistent with
this Section 13.6(g) and are otherwise reasonably acceptable to the Borrower and (ii) require that such Person clearly identify itself
as a Purchasing Borrower Party or an Affiliated Lender, as the case may be, in any assignment and acceptance agreement executed in connection
with such purchases or assignments; and
(I)
with respect to any assignment to a Purchasing Borrower Party, the assigning Lender waives any right to bring actions (whether
in contract, tort or otherwise) against the Administrative Agent in its capacity as such or to challenge the Administrative Agent’s
attorney-client privilege.
(ii)
Notwithstanding anything to the contrary in this Agreement, no Non-Debt Fund Affiliate shall have any right to (A) attend (including
by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent, the Collateral Agent or any Lender to which
representatives of the Credit Parties are not invited, (B) receive any information or material prepared by the Administrative Agent, the
Collateral Agent or any Lender or any communication by or among the Administrative Agent, the Collateral Agent and/or one or more Lenders,
except to the extent such information or materials have been made available to any Credit Party or its representatives (and in any case,
other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered
to Lenders pursuant to Sections 2, 3, 4 and 5 of this Agreement) or (C) make or bring (or participate in, other than as a passive participant
in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent or the Collateral
Agent with respect to any duties or obligations or alleged duties or obligations of such Agent under the Credit Documents or to challenge
such Agent’s attorney-client privilege.
(iii)
By its acquisition of Term Loans, a Non-Debt Fund Affiliate shall be deemed to have acknowledged and agreed that if a case under
the Bankruptcy Code is commenced against any Credit Party, such Credit Party shall seek (and each Non-Debt Fund Affiliate shall consent)
to provide that the vote of any Non-Debt Fund Affiliate (in its capacity as a Lender) with respect to any plan of reorganization or liquidation
of such Credit Party shall not be counted except that such Non-Debt Fund Affiliate’s vote (in its capacity as a Lender) may be counted
to the extent any such plan of reorganization or liquidation proposes to treat the Obligations held by such Non-Debt Fund Affiliate in
a manner that is less favorable to such Non-Debt Fund Affiliate than the proposed treatment of similar Obligations held by Lenders that
are not Affiliates of the Borrower; each Non-Debt Fund Affiliate hereby irrevocably appoints the Administrative Agent (such appointment
being coupled with an interest) as such Non-Debt Fund Affiliate’s attorney-in-fact, with full authority in the place and stead of
such Non-Debt Fund Affiliate and in the name of such Non-Debt Fund Affiliate (solely in respect of Loans and participations therein and
not in respect of any other claim or status such Non-Debt Fund Affiliate may otherwise have) from time to time in the Administrative Agent’s
discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the
provisions of this clause (iii);
(iv)
Any Lender may assign all or a portion of the Term Loans of any Class (but not any Revolving Credit Commitments, Revolving Credit
Loans, Additional/Replacement Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments, Extended Revolving Credit Loans
or Extended Revolving Credit Commitments) held by it to a Debt Fund Affiliate in accordance with Section 13.6(b).
(h)
Notwithstanding anything in Section 13.1 or the definition of “Required Lenders” to the contrary, for purposes
of determining whether the Required Lenders or any other requisite Class vote required by this Agreement have (i) consented (or not consented)
to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Credit Document or any departure
by any Credit Party therefrom, (ii) otherwise acted on any matter related to any Credit Document, or (iii) directed or required the Administrative
Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Credit
Document, (A) all Term Loans held by any Non-Debt Fund Affiliate shall be deemed to be not outstanding for all purposes of calculating
whether the Required Lenders (or requisite vote of any Class of Lenders) have taken any actions and (B) the aggregate amount of Term Loans
held by Debt Fund Affiliates will be excluded to the extent in excess of 49.9% of the amount required to constitute “Required Lenders”
(including in respect of a specific Class) (any such excess amount shall be deemed to be not outstanding on a pro rata basis among
all Debt Fund Affiliates).
(i)
Upon any contribution of Term Loans to the Borrower or any Restricted Subsidiary and upon any purchase of Term Loans by a Purchasing
Borrower Party, (A) the aggregate principal amount (calculated on the face amount thereof) of such Term Loans shall automatically be cancelled
and retired or extinguished by the Borrower on the date of such contribution or purchase (and, if requested by the Administrative Agent,
with respect to a contribution of Term Loans, any applicable contributing Lender shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant
to which the respective Lender assigns its interest in such Loans to the Borrower for immediate cancellation) and (B) the Administrative
Agent shall record such cancellation or retirement or extinguishment in the Register.
(j)
The Administrative Agent shall not (a) be required to serve as the auction agent for, or have any other obligations to participate
in (other than mechanical administrative duties), or facilitate any, “dutch auction” unless it is reasonably satisfied
with the terms and restrictions of such auction or (b) have any obligation to participate in, arrange, sell or otherwise facilitate, and
will have no liability in connection with, any open market purchases by any Purchasing Borrower Party.
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13.7
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Replacements of Lenders Under Certain Circumstances.
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(a) The
Borrower, at its sole expense, shall be permitted to replace any Lender (or any Participant) that (i) requests reimbursement for
amounts owing pursuant to Section 2.10, 2.11, 3.5 or 5.4, (ii) is affected in the manner described in Section 2.10(a)(iii) and as a
result thereof any of the actions described in such Section is required to be taken or (iii) becomes a Defaulting Lender, with a
replacement bank, financial institution or other institutional lender or investor that is an Eligible Assignee; provided that
(A) such replacement does not conflict with any Applicable Law, (B) no Event of Default shall have occurred and be continuing at the
time of such replacement, (C) the Borrower shall repay (or such replacement bank, financial institution or other institutional
lender or investor shall purchase, at par) all Loans and pay all other amounts (other than any disputed amounts) owing to such
replaced Lender hereunder (including, for the avoidance of doubt, pursuant to Section 2.10, 2.11, 3.5 or 5.4, as the case may be)
and under the other Credit Documents prior to the date of replacement of such Lender, (D) such replacement bank, financial
institution or other institutional lender or investor (if not already a Lender) and the terms and conditions of such replacement,
shall be reasonably satisfactory to the Administrative Agent, (E) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 13.6 and (F) any such replacement shall not be deemed to be a waiver of any rights that
the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender or that the replaced Lender shall
have against the Borrower and the other parties for indemnity, contribution, payment of disputed and other unpaid amounts and
otherwise.
(b) If
any Lender (such Lender a “Non-Consenting Lender”) has failed to consent to a proposed amendment, modification,
supplement, waiver, discharge or termination, which pursuant to the terms of Section 13.1 requires the consent of all of the Lenders
affected or each Lender and with respect to which the Required Lenders shall have granted their consent, then, provided no
Event of Default has occurred and is continuing, the Borrower shall have the right (unless such Non-Consenting Lender grants such
consent), at its own cost and expense, to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its
Loans and Commitments to one or more Eligible Assignees reasonably acceptable to the Administrative Agent; provided that (i)
all Obligations of the Borrower under this Agreement owing to such Non-Consenting Lender being replaced shall be paid in full
(including any applicable premium under Section 5.1(b)) to such Non-Consenting Lender concurrently with such assignment, (ii) the
replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount
thereof plus accrued and unpaid interest thereon, (iii) the replacement Lender shall consent to the proposed amendment,
modification, supplement, waiver, discharge or termination, (iv) all Lenders required to have consented to such proposed amendment,
modification, supplement, waiver, discharge or termination (other than Non-Consenting Lenders which are simultaneously replaced)
shall have consented thereto, and (v) the assignment of such Non-Consenting Lenders Loans to one or more Eligible Assignees does not
otherwise conflict with Applicable Law. In connection with any such assignment, the Borrower, the Administrative Agent, such
Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 13.6(a).
(c)
Notwithstanding anything herein to the contrary, each party hereto agrees that any assignment pursuant to the terms of this Section
13.7 may be effected pursuant to an Assignment and Acceptance executed by the Borrower, the Administrative Agent and the assignee and
that the Lender making such assignment need not be a party thereto.
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13.8
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Adjustments; Set-off.
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(a) Except
as otherwise set forth herein, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all
or part of the Loans of any Class and/or the participations in letter of credit obligations or swingline loans held by it, or
receive any collateral in respect thereof (whether voluntarily or involuntarily, by set- off, pursuant to events or proceedings of
the nature referred to in Section 11.5, or otherwise), in a greater proportion than any such payment to or collateral received by
any other Lender, if any, in respect of such other Lender’s Loans of such Class or participations in letter of credit
obligations or swingline loans, as applicable, such Benefited Lender shall (i) notify the Administrative Agent of such fact, and
(ii) purchase for cash at face value from the other Lenders a participating interest in such portion of each such other
Lender’s Loans of such Class or participations in letter of credit obligations or swingline loans, as applicable, or shall
provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably in accordance with the aggregate
principal of their respective Loans of the applicable Class or participations in letter of credit obligations or swingline loans, as
applicable; provided that, (A) if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without
interest and (B) the provisions of this paragraph shall not be construed to apply to (x) any payment made by Holdings, the Borrower
or any other Credit Party pursuant to and in accordance with the express terms of this Agreement and the other Credit Documents, (y)
any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, Commitments
or participations in a Letter of Credit Obligations or Swingline Loans to any assignee or participant or (z) any disproportionate
payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some
but not all Loans or Commitments of that Class or any increase in the Applicable Margin (or other pricing term, including any fee,
discount or premium) in respect of Loans or Commitments of Lenders that have consented to any such extension to the extent such
transaction is permitted hereunder. Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so
under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such
Credit Party rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of such Credit Party in the amount of such participation.
(b)
After the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided
by Applicable Law, each Lender, the Swingline Lender and each Letter of Credit Issuer shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent permitted by Applicable Law, upon any amount becoming due
and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise) to setoff and appropriate and apply
against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any
time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, as the case may
be; provided that, in the event that any Defaulting Lender shall exercise any such right of set-off, (x) all amounts so set off
shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and,
pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent, the Swingline Lender, each Letter of Credit Issuer and the Lenders, and (y) the Defaulting Lender shall provide
promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to
which it exercised such right of set-off. Each Lender, the Swingline Lender and each Letter of Credit Issuer agrees promptly to notify
the Borrower and the Administrative Agent after any such set-off and application made by such Person; provided that the failure
to give such notice shall not affect the validity of such set-off and application. Notwithstanding anything in this Section 13.8(b) to
the contrary, no Lender, no Swingline Lender and no Letter Credit Issuer will exercise, or attempt to exercise, any right of set off,
banker’s lien or the like against any deposit account or property of the Borrower or any other credit party held or maintained by
such Lender, Swingline Lender or Letter of Credit Issuer, as applicable, in each case to the extent the deposits or other proceeds of
such exercise, or attempt to exercise, any right of set off, banker’s lien or the like are, or are intended to be or are otherwise
are held out to be applied to the Obligations hereunder or otherwise secured by the Collateral, without the prior written consent of the
Collateral Agent.
13.9
Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts
(including by facsimile or other electronic transmission (i.e., a “pdf” or “tif”)), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with Holdings, the Borrower and each Agent.
13.10
Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
13.11
Integration. This Agreement and the other Credit Documents represent the agreement of Holdings, the Borrower, the Administrative
Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Collateral Agent, the Administrative Agent, the Letter of Credit Issuer or any Lender
relative to subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents.
13.12
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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13.13
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Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
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(a)
submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Credit Documents
to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of
the courts of the State of New York located in the County of New York, the courts of the United States of America for the Southern District
of New York and appellate courts from any thereof;
(b)
consents that any such action or proceeding shall be brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c)
agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the applicable party at its respective address set forth in Section
13.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;
(d)
agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e)
waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding
referred to in this Section 13.13 any special, exemplary, punitive or consequential damages.
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13.14
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Acknowledgments. Each of Holdings and the Borrower hereby acknowledges that:
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(a)
it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Credit Documents;
(b)
none of the Administrative Agent, the Collateral Agent, any Lead Arranger, any Joint Bookrunner or any Lender has any fiduciary
relationship with or duty to Holdings or the Borrower arising out of or in connection with this Agreement or any of the other Credit Documents,
and the relationship between the Administrative Agent, the Collateral Agent and the Lenders, on one hand, and Holdings or the Borrower
on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c)
no Joint Venture is created hereby or by the other Credit Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among Holdings, the Borrower and the Lenders.
13.15
WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, EACH LETTER OF CREDIT ISSUER,
THE SWINGLINE LENDER AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16 Confidentiality.
Each Agent, each Letter of Credit Issuer, the Swingline Lender and each Lender shall hold all non-public information furnished by or
on behalf of Holdings and the Borrower and their Subsidiaries in connection with such Lender’s evaluation of whether to become
a Lender hereunder or obtained by such Lender, such Agent or the Letter of Credit Issuer pursuant to the requirements of this
Agreement (“Confidential Information”) confidential in accordance with its customary procedure for handling
confidential information of this nature and, in the case of a Lender that is a bank, in accordance with safe and sound banking
practices and in any event may make disclosure (a) as required or requested by any Governmental Authority or representative thereof
or regulatory authority having jurisdiction over it (including any self-regulatory authority or representative thereof) or pursuant
to legal process or otherwise as required by Applicable Law based on the reasonable advice of counsel, (b) to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any
actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be
made by reference to the Borrower and its obligations, this Agreement or payments hereunder; provided that, in the case of
each of clauses (i) and (ii), the relevant Person is advised of and agrees to be bound by the provisions of this Section 13.16 or
other provisions at least as restrictive as this Section 13.16, (c) to such Lender’s or such Agent’s or the Letter of
Credit Issuer’s trustees, attorneys, professional advisors or independent auditors or Related Parties, in each case who need
to know such information in connection with the administration of the Credit Documents and are informed of the confidential nature
of such information or are subject to customary confidentiality obligations of professional practice or who agree in writing to be
bound by the terms of this paragraph (or language substantially similar to this paragraph) (and to the extent a person’s
compliance is within the control of an Agent, Letter of Credit Issuer or Lender, such Agent, Letter of Credit Issuer or Lender will
be responsible for such compliance), (d) with the written consent of the Borrower, (e) to the extent such Confidential Information
(i) becomes publicly available other than as a result of a breach of this Section 13.16, (ii) becomes available to any Agent, any
Lender, the Letter of Credit Issuer or any of their respective Affiliates on a non-confidential basis from a source that is not
subject to these confidentiality provisions or (iii) to the extent such information is independently developed by such Agent,
Lender, Letter of Credit Issuer, or Affiliate without the use of confidential information in breach of this Section 13.16 or (f) for
purposes of establishing a “due diligence” defense; provided that unless specifically prohibited by Applicable
Law or court order, each Lender, each Agent and the Letter of Credit Issuer shall notify the Borrower of any request by any
Governmental Authority or representative thereof (other than any such request in connection with an audit or examination of the
financial condition of such Lender, such Agent or the Letter of Credit Issuer by such Governmental Authority) for disclosure of any
such non-public information prior to disclosure of such information; and provided, further, that, in no event shall
any Lender, any Agent or the Letter of Credit Issuer be obligated or required to return any materials furnished by Holdings, the
Borrower or any Subsidiary of the Borrower. Each Lender, each Agent and the Letter of Credit Issuer agrees that it will not provide
to prospective Transferees, pledgees referred to in Section 13.16 or to prospective direct or indirect contractual counterparties
under Hedging Agreements to be entered into in connection with Loans made hereunder any of the Confidential Information unless such
Person is advised of and agrees to be bound by the provisions of this Section 13.16. The confidentiality provisions contained herein
shall not prohibit disclosures to any trustee, administrator, collateral manager, servicer, backup servicer, lender, rating agency
or secured party of any SPV in connection with the evaluation, administration, servicing of, or the reporting on, the assets or
securitization activities of such SPV; provided that any such Person is advised of and agrees to be bound by the provisions
of this Section 13.16.
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13.17
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Release of Collateral and Guarantee Obligations; Subordination of Liens.
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(a) The
Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any Collateral shall be
automatically released (i) in full, as set forth in clause (b) below, (ii) upon the sale, transfer or other Disposition (including
any disposition by means of a distribution or Restricted Payment) of such Collateral (including as part of or in connection with any
other sale, transfer or other Disposition permitted hereunder) to any Person other than another Credit Party, to the extent such
sale, transfer or other Disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely
conclusively on a certificate to that effect provided to it by any Credit Party upon its reasonable request without further
inquiry), (iii) to the extent such Collateral is comprised of property leased to a Credit Party by a Person that is not a Credit
Party, upon termination or expiration of such lease, (iv) if the release of such Lien is approved, authorized or ratified in writing
by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance with Section 13.1), (v)
to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its
obligations under the Guarantee (in accordance with the second succeeding sentence and Section 25 of the Guarantee), (vi) as
required by the Collateral Agent to effect any sale, transfer or other disposition of Collateral in connection with any exercise of
remedies of the Collateral Agent pursuant to the Security Documents and (vii) to the extent such Collateral otherwise becomes
Excluded Capital Stock or Excluded Property. Any such release shall not in any manner discharge, affect, or impair the Obligations
or any Liens (other than those being released) upon (or Obligations (other than those being released) of the Credit Parties in
respect of) all interests retained by the Credit Parties, including the proceeds of any disposition, all of which shall continue to
constitute part of the Collateral except to the extent otherwise released in accordance with the provisions of the Credit Documents.
Additionally, the Lenders hereby irrevocably agree that the Guarantors shall be released from the Guarantee upon consummation of any
transaction permitted hereunder resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary, or otherwise becoming an
Excluded Subsidiary (including in connection with any designation of an Unrestricted Subsidiary), or, in the case of a Previous
Holdings, in accordance with the conditions set forth in the definition of Holdings. The Lenders hereby authorize the Administrative
Agent and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, and agreements necessary or
desirable to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph,
all without the further consent or joinder of any Lender. Any representation, warranty or covenant contained in any Credit Document
relating to any such Collateral or Guarantor shall no longer be deemed to be repeated.
(b)
Notwithstanding anything to the contrary contained herein or any other Credit Document, when all Obligations (other than (i) Hedging
Obligations in respect of any Secured Hedging Agreements, (ii) Cash Management Obligations in respect of any Secured Cash Management Agreements
and (iii) any contingent obligations or contingent indemnification obligations not then due and payable) have been paid in full, all Commitments
have terminated or expired and no Letter of Credit shall be outstanding that is not Cash Collateralized or back-stopped on terms reasonably
satisfactory to the Letter of Credit Issuer, upon request of the Borrower, the Administrative Agent and/or the Collateral Agent, as applicable,
shall (without notice to, or vote or consent of, any Secured Party) take such actions as shall be required to release its security interest
in all Collateral, and to release all obligations under any Credit Document, whether or not on the date of such release there may be any
(i) Hedging Obligations in respect of any Secured Hedging Agreements, (ii) Cash Management Obligations in respect of any Secured Cash
Management Agreements and (iii) any contingent obligations or contingent indemnification obligations not then due and payable. Any such
release of Obligations shall be deemed subject to the provision that such Obligations shall be reinstated if after such release any portion
of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part
of its property, or otherwise, all as though such payment had not been made.
(c)
Notwithstanding anything to the contrary contained herein or in any other Credit Document, upon reasonable request of the Borrower
in connection with any Liens permitted by the Credit Documents, the Collateral Agent shall (without notice to, or vote or consent of,
any Secured Party) take such actions as shall be required to give effect to (by means of an acknowledgment reasonably satisfactory to
the Administrative Agent), or to subordinate the Lien on any Collateral to, any Lien permitted under Sections 10.2(c), (e) (solely as
it relates to clauses (c) and (f) of Section 10.2), (f), (l), (m), (n), (o), (q), (r), (s), (v), (w), (x), (y), (aa), (ff) and clauses
(d), (e), (f), (g), (i) and (n) of the definition of “Permitted Encumbrances.” In addition, notwithstanding anything
to the contrary contained herein or in any other Credit Document, upon reasonable request of the Borrower, the Administrative Agent and
the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party) enter into subordination or intercreditor agreements
with respect to Indebtedness to the extent the Administrative Agent or Collateral Agent is otherwise contemplated herein as a party to
such subordination or intercreditor agreements, in each case to the extent consistent with the provisions of Section 12.15.
(d)
Notwithstanding the foregoing or anything in the Credit Documents to the contrary, at the direction of the Required Lenders, the
Administrative Agent may, in exercising remedies, take any and all necessary and appropriate action to effectuate a credit bid of all
Loans (or any lesser amount thereof) for the Credit Parties’ assets in a bankruptcy, foreclosure or other similar proceeding, forbear
from exercising remedies upon an Event of Default, or in a proceeding under any Debtor Relief Law, enter into a settlement agreement on
behalf of all Lenders.
13.18
USA PATRIOT ACT. Each Lender hereby notifies the Borrower and each Credit Party that pursuant to the requirements of the
PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower and each Credit Party, which information
includes the name and address of the Borrower and each Credit Party and other information that will allow such Lender to identify the
Borrower and Credit Parties in accordance with the PATRIOT Act.
13.19
Legend. THE TERM LOANS WILL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE
PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF THESE TERM LOANS MAY BE OBTAINED BY WRITING TO THE BORROWER AT THE ADDRESS SET
FORTH IN SECTION 13.2.
13.20 Payments
Set Aside. To the extent that any payment by or on behalf of Holdings or the Borrower is made to any Agent or any Lender, or any
Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time
to time in effect.
13.21
Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any
Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject
to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be
bound by:the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an EEA Financial Institution; and
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(b)
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the effects of any Bail-in Action on any such liability, including, if applicable:
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(i)
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a reduction in full or in part or cancellation of any such liability;
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(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA 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 Credit
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 EEA
Resolution Authority.
13.22
Execution by Target, Amplify and Subsidiaries. Notwithstanding any other provision contained herein, the Target, Amplify,
Surviving Company and the Subsidiaries of the Target, Amplify and Surviving Company shall have no rights or obligations under any of the
Credit Documents until the consummation of the Mergers, and any covenants hereunder relating to the Target, Amplify and the Subsidiaries
of the Target and Amplify in any Credit Document shall not become effective until such time. Upon consummation of the Mergers, the signature
pages to this Agreement and each other Credit Documents executed on behalf of the Target, Amplify and any of their respective Subsidiaries
shall be deemed released.
[SIGNATURE PAGES FOLLOW]
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
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CRACKLE
PURCHASER CORP., as Holdings
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[*****]
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[*****]
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Title: Chief Financial Officer and Secretary
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[SIGNATURE PAGE TO
CREDIT AGREEMENT]
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CRACKLE
MERGER SUB I CORP., as initial Borrower prior to
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the
consummation of the Amplify Merger
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By: [*****]
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Title: Chief Financial
Officer and Secretary
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WIREPATH LLC, after giving effect to the Amplify
Merger, as
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Borrower
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By: [*****]
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Title: Chief Financial
Officer and Secretary
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[SIGNATURE PAGE TO CREDIT AGREEMENT]
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UBS
AG, STAMFORD BRANCH as Adminisrative Agent, Collateral Agent,
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Letter of Credit Issuer and Lender
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By: [*****]
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Title: Director
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By: [*****]
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Title: Associate Director
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[SIGNATURE PAGE TO CREDIT AGREEMENT]
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SUNTRUST BANK as Letter of Credit Issuer
and Lender
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By: [*****]
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[SIGNATURE PAGE TO CREDIT AGREEMENT]
SCHEDULE 1.1(a)
Commitments of Lenders
[*****]
SCHEDULE 1.1(b)
Existing Letters of Credit
None.
SCHEDULE 1.1(c)
Mortgaged Property
None.
SCHEDULE 8.12
Subsidiaries
[*****]
SCHEDULE 8.15
Owned Real Property
None.
SCHEDULE 9.17
Post-Closing Obligations
1. Within
60 days of the Closing Date (or such longer period as agreed by the Administrative Agent), the Borrower shall deliver to the Administrative
Agent insurance certificates as to coverage under the insurance policies required by Section 9.3 of the Credit Agreement, together with
endorsements for each insurance certificate, thereby naming the Collateral Agent, for the benefit of the Secured Parties, as additional
insured, loss payee and/or mortgagee, as applicable, in each case, in form and substance reasonably satisfactory to the Collateral Agent.
SCHEDULE 10.1
Indebtedness
None.
SCHEDULE 10.2
Liens
None.
SCHEDULE 10.4
Dispositions
None.
SCHEDULE 10.5
Investments
None.
SCHEDULE 10.8
Negative Pledge Clauses
None.
SCHEDULE 10.11
Transactions with Affiliates
None after the Closing Date.
SCHEDULE 13.2
Addresses for Notices
Administrative Agent’s Office and if to UBS,
AG as Letter of Credit Issuer:
UBS AG, Stamford Branch
Attention: Structured Finance Processing
600 Washington
Blvd., 9th Floor
Stamford, CT 06901
Facsimile: [*****]
Telephone: [*****]
Email: [*****]
If to SunTrust Bank as Letter of Credit Issuer:
SunTrust
Bank
211 Perimeter Ctr Pkwy, Ste 500
Atlanta,
GA 30326
Attn: [*****]
Tel: [*****]
Fax: [*****]
Email: [*****]
If to SunTrust Bank as Revolving Credit Lender:
SunTrust Bank 3333 Peachtree Rd, 7th Floor
Atlanta,
GA 30326
Attn: [*****]
Tel: [*****]
Email: [*****]
EXHIBIT A
TO THE CREDIT AGREEMENT
FORM OF GUARANTEE
[See Execution Version]
EXHIBIT B
TO THE CREDIT AGREEMENT
FORM OF SECURITY AGREEMENT
[See Execution Version]
EXHIBIT C
TO THE CREDIT AGREEMENT
FORM OF PLEDGE AGREEMENT
[See Execution Version]
EXHIBIT D
TO THE CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING
UBS AG, Stamford Branch
600 Washington Blvd., 9th Floor
Stamford, CT 06901
Attn: Structured Finance Processing
Tel: [*****]
Facsimile: [*****]
Email: [*****]
, ______
Ladies and Gentlemen:
The undersigned, [CRACKLE MERGER
SUB I CORP.][WIREPATH LLC], a Delaware [corporation][limited liability company] (the “Borrower”), refers to the
Credit Agreement, dated as of August 4, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation, the Borrower, the Lenders from time to time party
thereto, UBS AG, STAMFORD BRANCH (the “Administrative Agent”), as the Administrative
Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer, and the other parties from time to time party thereto.
Capitalized terms used herein and
not otherwise defined herein are used herein as defined in the Credit Agreement.
The Borrower hereby gives you notice
pursuant to Section 2.3 of the Credit Agreement that it hereby requests a Borrowing under the Credit Agreement and, in connection therewith,
sets forth below the terms on which such Borrowing is requested to be made:
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(A)
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Date
of Borrowing ________, 1
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(B)
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Aggregate
Principal amount of $ _____________2
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Borrowing
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(C)
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Class of Borrowing __________3
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1 In
the case of the Initial Term Loans, the Closing Date; in the case of the Incremental Term Loans, the applicable Incremental Facility Closing
Date in respect of such Class. In the case of all other Borrowings, a Business Day.
2 The
aggregate principal amount of each Borrowing of Term Loans or Revolving Credit Loans (except for Revolving Credit Loans on the Closing
Date) shall be in a multiple of $500,000 and of each Borrowing of Swingline Loans and Revolving Credit Loans on the Closing Date shall
be in a multiple of $100,000.
3 Specify
Revolving Credit Loans, Swingline Loans, Initial Term Loans, Incremental Term Loans (of a Class), Extended Term Loans (of the same Extension
Series), Extended Revolving Credit Loans (of the same Extension Series) or Additional/Replacement Revolving Credit Loans.
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(D)
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Type of Borrowing ___________ 4
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(E)
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[Interest Period ___________
]5
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[The undersigned hereby certifies
that (a) subject to the provisions of Section 7.1 of the Credit Agreement, all representations and warranties made by any Credit Party
contained in the Credit Agreement or in the other Credit Documents shall be true and correct in all material respects with the same effect
as though such representations and warranties had been made on and as of the date of the Borrowing requested hereby (except where such
representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct
in all material respects as of such earlier date, and except where such representations and warranties are qualified by materiality, “Material
Adverse Effect” or similar language, in which case such representations and warranties shall be true and correct in all respects),
and (b) no Default or Event of Default shall have occurred and be continuing as of the date of the Borrowing requested hereby nor, after
giving effect to the Borrowing requested hereby, would a Default or Event of Default occur.]6
If any
Borrowing of Eurodollar Loans is not made as a result of a withdrawn Notice of Borrowing or failure to satisfy the conditions of Section
6 and Section 7 of the Credit Agreement, the Borrower shall, after receipt of a written request by any Lender (which request shall set
forth in reasonable detail the basis for requesting such amount and, absent clearly demonstrable error, the amount requested shall be
final and conclusive and binding upon all parties hereto), pay to the Administrative Agent for the account of such Lender within ten
Business Days of such request any amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender
may reasonably incur as a result of such payment, failure to borrow, failure to convert, failure to continue, failure to prepay, reduction
or failure to reduce, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Eurodollar Loan.
[Signature pages follow]
4 Specify ABR Loans
or Eurodollar Loans.
5 Applicable
only to Eurodollar Borrowings and subject to the definition of “Interest Period” and Section 2.9 of the Credit Agreement.
6 Not
to be included in Notice of Borrowing for the Borrowing to occur on the Closing Date, and to be included for subsequent Borrowings
only to the extent required by Section 7.
WIREPATH LLC
EXHIBIT E
TO THE CREDIT AGREEMENT
FORM OF CLOSING CERTIFICATE
OMNIBUS CLOSING CERTIFICATE
[See Execution Version]
EXHIBIT F-1
TO THE CREDIT AGREEMENT
FORM OF PROMISSORY NOTE
(REVOLVING
CREDIT LOANS AND SWINGLINE LOANS)
New York
FOR VALUE RECEIVED, the undersigned,
WIREPATH LLC, a Delaware limited liability company (the “Borrower”), hereby unconditionally promises to pay
to the order of [REVOLVING CREDIT LENDER] [SWINGLINE LENDER] or its registered successors or assigns (the “Lender”),
at the Administrative Agent’s Office or such other place as UBS AG, STAMFORD BRANCH (the “Administrative Agent”)
shall have specified, in U.S. Dollars and in immediately available funds, in accordance with Section 2.5 of the Credit Agreement
(as defined below; capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit
Agreement) on the [Revolving Credit Maturity Date] [Swingline Maturity Date] the principal amount of $[ ] or, if less, the
aggregate unpaid principal amount of all advances made by the Lender to the Borrower as [Revolving Credit Loans] [Swingline Loans] pursuant
to the Credit Agreement. The Borrower further unconditionally promises to pay interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates per annum and on the dates specified in Section 2.8 of the Credit Agreement.
This promissory note (the “Promissory
Note”) is one of the promissory notes referred to in Section 13.6 of the Credit Agreement, dated as of August 4, 2017 (as the
same may be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among CRACKLE PURCHASER CORP., a Delaware corporation, the Borrower, the Lenders from time to time party thereto, UBS
AG, STAMFORD BRANCH (the “Administrative Agent”), as the Administrative Agent, Collateral Agent, Swingline
Lender and Letter of Credit Issuer, and the other parties from time to time party thereto. This Promissory Note is subject to, and the
Lender is entitled to the benefits of, the provisions of the Credit Agreement, and the [Revolving Credit Loans] [Swingline Loans] evidenced
hereby are guaranteed and secured as provided therein and in the other Credit Documents. The [Revolving Credit Loans] [Swingline Loans]
evidenced hereby are subject to prepayment prior to the [Revolving Credit Maturity Date] [Swingline Maturity Date], in whole or in part,
as provided in the Credit Agreement.
All parties now and hereafter liable
with respect to this Promissory Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive diligence, presentment,
demand, protest and notice of any kind whatsoever in connection with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power or privilege hereunder or under the Credit Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. A waiver by the Administrative
Agent or the Lender of any right, remedy, power or privilege hereunder or under any Credit Document on any one occasion shall not be construed
as a bar to any right or remedy that the Administrative Agent or the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights, remedies,
powers and privileges provided by law.
All payments in respect of the principal
of and interest on this Promissory Note shall be made to the Person recorded in the Register as the holder of this Promissory Note and
such Person shall be treated as the Lender hereunder for all purposes of the Credit Agreement.
THIS PROMISSORY NOTE 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.
EXHIBIT F-2
TO THE CREDIT AGREEMENT
FORM OF PROMISSORY NOTE
(INITIAL
TERM LOANS)
New York
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$
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[____________________], 20[ ]
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FOR VALUE RECEIVED, the undersigned,
WIREPATH LLC, a Delaware limited liability company (the “Borrower”), hereby unconditionally promises to pay
to the order of [Lender] or its registered successors or assigns (the “Lender”), at the Administrative Agent’s
Office or such other place UBS AG, STAMFORD BRANCH (the “Administrative Agent”) shall have specified, in U.S.
Dollars and in immediately available funds, in accordance with Section 2.5 of the Credit Agreement (as defined below; capitalized
terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement) on the Initial Term
Loan Maturity Date, the principal amount of $[ ] or, if less, the aggregate unpaid principal amount of all Initial Term Loans, if any,
made by the Lender to the Borrower pursuant to the Credit Agreement. The Borrower further unconditionally promises to pay interest in
like money at such office on the unpaid principal amount hereof from time to time outstanding at the rates per annum and on the dates
specified in Section 2.8 of the Credit Agreement.
This promissory note (the “Promissory
Note”) is one of the promissory notes referred to in Section 13.6 of the Credit Agreement, August 4, 2017 (as the same may be
amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”), among
CRACKLE PURCHASER CORP., a Delaware corporation, the Borrower, the Lenders from time to time party thereto, UBS
AG, STAMFORD BRANCH (the “Administrative Agent”), as the Administrative Agent, Collateral Agent, Swingline
Lender and Letter of Credit Issuer, and the other parties from time to time party thereto. This Promissory Note is subject to, and the
Lender is entitled to the benefits of, the provisions of the Credit Agreement, and the Initial Term Loans evidenced hereby are guaranteed
and secured as provided therein and in the other Credit Documents. The Initial Term Loans evidenced hereby are subject to prepayment prior
to the Initial Term Loan Maturity Date, in whole or in part, as provided in the Credit Agreement.
All parties now and hereafter liable
with respect to this Promissory Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive diligence, presentment,
demand, protest and notice of any kind whatsoever in connection with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power or privilege hereunder or under the Credit Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. A waiver by the Administrative
Agent or the Lender of any right, remedy, power or privilege hereunder or under any Credit Document on any one occasion shall not be construed
as a bar to any right or remedy that the Administrative Agent or the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights, remedies,
powers and privileges provided by law.
All payments in respect of the principal
of and interest on this Promissory Note shall be made to the Person recorded in the Register as the holder of this Promissory Note, as
described more fully in Section 2.5(e) of the Credit Agreement, and such Person shall be treated as the Lender hereunder for all
purposes of the Credit Agreement.
THIS PROMISSORY NOTE 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.
EXHIBIT G-1
TO THE CREDIT
AGREEMENT
FORM OF EQUAL PRIORITY
INTERCREDITOR AGREEMENT
EQUAL PRIORITY INTERCREDITOR AGREEMENT
among
CRACKLE PURCHASER CORP
as Holdings,
WIREPATH LLC,
as the Borrower,
and the other Grantors party hereto,
UBS
AG, STAMFORD BRANCH,
as Credit Agreement Collateral
Agent
UBS AG, STAMFORD BRANCH,
as Authorized Representative for
the Credit Agreement Secured Parties,
and
each additional Authorized Representative
from time to time party hereto
dated as of [ ]
EQUAL PRIORITY INTERCREDITOR
AGREEMENT, dated as of [ ] (this “Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation (or
any successor thereof), WIREPATH LLC, a Delaware limited liability company, the other Grantors (as defined below) party hereto, UBS
AG, STAMFORD BRANCH (“UBS”), as collateral agent for the Credit Agreement Secured Parties, the Initial Additional
Credit Agreement Secured Parties and Additional Credit Agreement Secured Parties (each, as defined below) (in such capacity and
together with its successors in such capacity, the “Credit Agreement Collateral Agent”), UBS, as Authorized
Representative for the Credit Agreement Secured Parties (as each such term is defined below) and each additional Authorized
Representative from time to time party hereto for the other Additional Secured Parties of the Series (as defined below) with respect
to which it is acting in such capacity.
In consideration
of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Collateral Agent, the Administrative Agent (for itself and on behalf of the Credit Agreement Secured Parties) and each additional
Authorized Representative (for itself and on behalf of the Additional Secured Parties of the applicable Series) agree as follows:
ARTICLE I
Definitions
SECTION 1.01
Certain Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Credit Agreement
or, if defined in the New York UCC, the meanings specified therein. As used in this Agreement, the following terms have the meanings specified
below:
“Additional Class Debt” has the meaning
assigned to such term in Section 5.13.
“Additional Class Debt Parties” has the
meaning assigned to such term in Section 5.13.
“Additional
Class Debt Representative” has the meaning assigned to such term in Section 5.13.
“Additional
Collateral Agent” means the collateral agent for the Additional Secured Parties, other than the Initial Additional Secured Parties
and the Additional Credit Agreement Secured Parties, together with its successors in such capacity.
“Additional
Credit Agreement Obligations” means “Additional First Lien Obligations” as such term is defined in the Credit Agreement
Security Agreement (which for the avoidance of doubt shall not include any Initial Additional Credit Agreement Obligations).
“Additional
Credit Agreement Secured Party” means the holders of any Additional Credit Agreement Obligations and any Authorized Representative
with respect thereto.
“Additional
Documents” means, with respect to the Initial Additional Obligations or any Series of Additional Class Debt, the notes,
credit agreements, loan agreements, note purchase agreements, indentures, security documents and other operative agreements
evidencing or governing such indebtedness and liens securing such indebtedness, including the Initial Additional Security Documents
and the Additional Security Documents and each other agreement entered into for the purpose of securing the Initial Additional
Obligations or any Series of Additional Class Debt; provided that, in each case, the Indebtedness thereunder (other than the
Initial Additional Obligations) has been designated as Additional Obligations pursuant to Section 5.13 hereto.
“Additional
Obligations” shall mean the Additional Credit Agreement Obligations and all advances to, and debts, liabilities, obligations,
covenants and duties of, any Grantor arising under any Additional Documents relating to any Series of Additional Class Debt relating to
Indebtedness Incurred by, or provided to, the Borrower and/or any other Credit Party, whether direct or indirect (including those acquired
by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Grantor of any proceeding under any Bankruptcy Law naming such Person as the debtor in such proceeding
(or that would accrue but for the operation of applicable Bankruptcy Law), regardless of whether such interest and fees are allowed claims
in such proceeding, in each case, that have been designated as Additional Obligations pursuant to and in accordance with Section 5.13(ii).
“Additional
Secured Party” means the holders of any Additional Obligations and any Authorized Representative and Collateral Agent with respect
thereto, and shall include the Initial Additional Secured Parties.
“Additional
Security Documents” means any security agreement or any other document now existing or entered into after the date hereof that
create Liens on any assets or properties of any Grantor to secure the Additional Obligations.
“Administrative
Agent” has the meaning assigned to such term in the definition of “Credit Agreement”.
“Agreement”
has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Applicable
Authorized Representative” means, with respect to any Shared Collateral, (a) until the earlier of (i) the Discharge of Credit
Agreement Obligations and (ii) the Non-Controlling Authorized Representative Enforcement Date, the Administrative Agent and (b) from and
after the earlier of (i) the Discharge of Credit Agreement Obligations and (ii) the Non-Controlling Authorized Representative Enforcement
Date, the Major Non-Controlling Authorized Representative.
“Applicable
Collateral Agent” means at any time, the Collateral Agent with respect to the Series of Obligations represented by the Authorized
Representative that is the Applicable Authorized Representative at such time.
“Authorized
Representative” means, at any time, (a) in the case of any Credit Agreement Obligations or the Credit Agreement Secured Parties,
the Administrative Agent, (b) in the case of the Initial Additional Obligations or the Initial Additional Secured Parties, the Initial
Additional Authorized Representative, and (c) in the case of any other Series of Additional Obligations or Additional Secured Parties
that become subject to this Agreement after the date hereof, the Authorized Representative named for such Series in the applicable Joinder
Agreement.
“Bankruptcy Case”
has the meaning assigned to such term in Section 2.05(b).
“Bankruptcy Code”
means Title 11 of the United States Code, as amended.
“Bankruptcy
Law” means the Bankruptcy Code and any other federal, state or foreign law, including common law, from time to time in
effect in respect of voluntary or involuntary insolvency, liquidation, dissolution, wind-up, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership, reorganization, or debtor relief.
“Borrower”
has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Collateral”
means all assets and properties subject to Liens created pursuant to any Security Document to secure one or more Series of Obligations.
“Collateral
Agent” means (a) in the case of any Credit Agreement Obligations, any Initial Additional Credit Agreement Obligations and any
Additional Credit Agreement Obligations, the Credit Agreement Collateral Agent, (b) in the case of the Initial Additional Obligations,
other than Initial Additional Credit Agreement Obligations, the Initial Additional Collateral Agent, and (c) in the case of the Additional
Obligations, other than Additional Credit Agreement Obligations, the Additional Collateral Agent.
“Controlling
Secured Parties” means, with respect to any Shared Collateral, (a) at any time when the Credit Agreement Collateral Agent is
the Applicable Collateral Agent, the Credit Agreement Secured Parties and (b) at any other time, the Series of Secured Parties whose Authorized
Representative is the Applicable Authorized Representative for such Shared Collateral.
“Credit Agreement”
means that certain Credit Agreement, dated as of August 4, 2017, among Holdings, the Borrower, the lenders from time to time party thereto,
UBS, as administrative agent (in such capacity, the “Administrative Agent”), and the other parties thereto.
“Credit
Agreement Collateral Agent” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Credit
Agreement Collateral Documents” means the Security Agreement and Pledge Agreement (each, as defined in the Credit Agreement),
the other Security Documents (as defined in the Credit Agreement) and each other agreement entered into in favor of the Credit Agreement
Collateral Agent for the purpose of securing any Credit Agreement Obligations.
“Credit
Agreement Obligations” means “Obligations” as defined in the Credit Agreement.
“Credit
Agreement Secured Parties” means the “Secured Parties” as defined in the Credit Agreement.
“Credit Agreement Security
Agreement” means the Security Agreement dated as of August 4, 2017 among the Credit Agreement Collateral Agent and the Grantors
party thereto.
“DIP Financing”
has the meaning assigned to such term in Section 2.05(b).
“DIP Financing Liens” has the meaning
assigned to such term in Section 2.05(b).
“DIP Lenders”
has the meaning assigned to such term in Section 2.05(b).
“Discharge”
means, with respect to any Shared Collateral and any Series of Obligations, the date on which such Series of Obligations is no longer
secured by such Shared Collateral. The term “Discharged” shall have a corresponding meaning.
“Discharge
of Credit Agreement Obligations” means, with respect to any Shared Collateral, the Discharge of the Credit Agreement Obligations
with respect to such Shared Collateral; provided that the Discharge of Credit Agreement Obligations shall not be deemed to have
occurred in connection with a Refinancing of such Credit Agreement Obligations with additional Obligations secured by such Shared Collateral
under an Additional Document that has been designated in writing by the Administrative Agent (under the Credit Agreement so Refinanced)
to the Initial Additional Collateral Agent or Additional Collateral Agent and each other Authorized Representative as the “Credit
Agreement” for purposes of this Agreement.
“Event
of Default” means an “Event of Default” (or similarly defined term) as defined in any Secured Credit Document.
“Grantors”
means the Borrower, Holdings, and each of the other Guarantors (as defined in the Credit Agreement) and each other Subsidiary of the Borrower
that has granted a security interest pursuant to any Security Document to secure any Series of Obligations. The Grantors existing on the
date hereof are set forth in Annex I hereto.
“Holdings”
has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Impairment”
has the meaning assigned to such term in Section 1.03.
“Initial
Additional Authorized Representative” means, in the case of any Initial Additional Obligations or Initial Additional Secured
Parties that are subject to this Agreement on the date hereof, [ ].
“Initial Additional Collateral
Agent” means the collateral agent for the Initial Additional Secured Parties, together with its successors in such capacity.
“Initial Additional Credit
Agreement Obligations” means Additional Credit Agreement Obligations existing as at the date hereof, if any.
“Initial Additional Credit
Agreement Secured Party” means the holders of any Initial Additional Credit Agreement Obligations and any Authorized Representative
with respect thereto.
“Initial
Additional Obligations” shall mean the Initial Additional Credit Agreement Obligations and all advances to, and debts, liabilities,
obligations, covenants and duties of, any Grantor arising under any Additional Documents relating to Indebtedness Incurred by, or provided
to, the Borrower and/or any other Credit Party, whether direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against
any Grantor of any proceeding under any Bankruptcy Law naming such Person as the debtor in such proceeding (or that would accrue but for
the operation of applicable Bankruptcy Law), regardless of whether such interest and fees are allowed claims in such proceeding, in each
case, to the extent, but only to the extent permitted by the provisions of the Credit Agreement and the Additional Documents to be Incurred
and secured by Liens on the Shared Collateral on a priority basis that is equal to the Liens on the Shared Collateral securing the Credit
Agreement Obligations.
“Initial
Additional Secured Party” means the holders of any Initial Additional Obligations and any Authorized Representative and Collateral
Agent with respect thereto.
“Initial Additional
Security Documents” means any security agreement or any other document now existing or entered into after the date hereof that
create Liens on any assets or properties of any Grantor to secure the Initial Additional Obligations.
“Insolvency or Liquidation Proceeding”
means:
(1)
any case or other proceeding commenced by or against the Borrower or any other Grantor under any Bankruptcy Law, any other proceeding
for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Borrower or any other Grantor,
any receivership or assignment for the benefit of creditors relating to the Borrower or any other Grantor or any similar case or proceeding
relative to the Borrower or any other Grantor or its creditors, as such, in each case whether or not voluntary;
(2)
any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Borrower or any other
Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3)
any other proceeding of any type or nature in which substantially all claims of creditors of the Borrower or any other Grantor
are determined and any payment or distribution is or may be made on account of such claims.
“Intervening Creditor” has the meaning
assigned to such term in Section 2.01(a).
“Joinder
Agreement” means a joinder to this Agreement in the form of Annex II hereof required to be delivered by an Authorized
Representative to each Collateral Agent and each Authorized Representative pursuant to Section 5.13 hereof in order to establish
an additional Series of Additional Obligations and add Additional Secured Parties (other than Initial Additional Secured Parties) hereunder.
“Lien”
means any mortgage, pledge, deed of trust, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance,
and any easement, right-of-way, license, restriction (including zoning restrictions), defect, exception or irregularity in title or similar
charge or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or
any lease in the nature thereof); provided that in no event shall a straight-line or operating lease be deemed to be a Lien.
“Major
Non-Controlling Authorized Representative” means, with respect to any Shared Collateral, the Authorized Representative of the
Series of Additional Obligations or Initial Additional Obligations that constitutes the largest outstanding principal amount of any then
outstanding Series of Obligations with respect to such Shared Collateral; provided, however, that if there are two outstanding
Series of Additional Obligations or Initial Additional Obligations (as the case may be) which have an equal outstanding principal amount,
the Series of Additional Obligations or Initial Additional Obligations (as the case may be) with the earlier maturity date shall be considered
to have the larger outstanding principal amount for purposes of this definition.
“New
York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.
“Non-Controlling
Authorized Representative” means, at any time with respect to any Shared Collateral, any Authorized Representative that is not
the Applicable Authorized Representative at such time with respect to such Shared Collateral.
“Non-Controlling
Authorized Representative Enforcement Date” means, with respect to any Non-Controlling Authorized Representative, the date which
is 90 days (throughout which 90 day period such Non-Controlling Authorized Representative was the Major Non-Controlling Authorized Representative)
after the occurrence of both (A) an Event of Default (under and as defined in the Additional Document under which such Non-Controlling
Authorized Representative is the Authorized Representative) and (b) each Collateral Agent’s and each other Authorized Representative’s
receipt of written notice from such Non-Controlling Authorized Representative certifying that (i) such Non- Controlling Authorized Representative
is the Major Non-Controlling Authorized Representative and that an Event of Default (under and as defined in the Additional Document under
which such Non-Controlling Authorized Representative is the Authorized Representative) has occurred and is continuing and (ii) the Additional
Obligations or Initial Additional Obligations of the Series with respect to which such Non- Controlling Authorized Representative is the
Authorized Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance
with the terms of the applicable Additional Document; provided that the Non-Controlling Authorized Representative Enforcement Date
shall be stayed and shall not occur and shall be deemed not to have occurred with respect to any Shared Collateral (A) at any time the
Administrative Agent or the Credit Agreement Collateral Agent has commenced and is diligently pursuing any enforcement action with respect
to such Shared Collateral or (B) at any time the Grantor which has granted a security interest in such Shared Collateral is then a debtor
under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Non-Controlling
Secured Parties” means, with respect to any Shared Collateral, the Secured Parties which are not Controlling Secured Parties
with respect to such Shared Collateral.
“Obligations”
means, collectively, (a) the Credit Agreement Obligations, (b) the Initial Additional Obligations, and (c) each Series of Additional Obligations.
“Possessory
Collateral” means any Shared Collateral in the possession of a Collateral Agent (or its agents or bailees), to the extent that
possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without
limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession
of the Collateral Agent under the terms of the Security Documents.
“Proceeds”
has the meaning assigned to such term in Section 2.01(a).
“Refinance”
means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund,
replace or repay, or to Incur other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness
(in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each
case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case,
through any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” have correlative meanings.
“Secured
Credit Document” means (a) the Credit Agreement and each Credit Document (as defined in the Credit Agreement), (b) each Additional
Document with respect to the Initial Additional Obligations, and (c) each Additional Document with respect to any Series of Additional
Class Debt.
“Secured
Parties” means (a) the Credit Agreement Secured Parties, (b) the Initial Additional Secured Parties with respect to the Initial
Additional Obligations, and (c) the Additional Secured Parties with respect to each Series of Additional Obligations.
“Security
Documents” means, collectively, (a) the Credit Agreement Collateral Documents, (b) the Initial Additional Security Documents,
and (c) the Additional Security Documents.
“Series”
means (a) with respect to the Secured Parties, each of (i) the Credit Agreement Secured Parties (in their capacities as such), (ii) the
Initial Additional Secured Parties (in their capacities as such), and (iii) the Additional Secured Parties that become subject to this
Agreement after the date hereof that are represented by a common Authorized Representative (in its capacity as such for such Additional
Secured Parties) and (b) with respect to any Obligations, each of (i) the Credit Agreement Obligations, (ii) the Initial Additional Obligations,
and (iii) the Additional Obligations Incurred pursuant to any Additional Document, which pursuant to any Joinder Agreement, are to be
represented hereunder by a common Authorized Representative (in its capacity as such for such Additional Obligations).
“Shared
Collateral” means, at any time, Collateral in which the holders of two or more Series of Obligations hold a valid and perfected
security interest at such time. If more than two Series of Obligations are outstanding at any time and the holders of less than all Series
of Obligations hold a valid and perfected security interest in any Collateral at such time, then such Collateral shall constitute Shared
Collateral for those Series of Obligations that hold a valid security interest in such Collateral at such time and shall not constitute
Shared Collateral for any Series which does not have a valid and perfected security interest in such Collateral at such time.
“UBS”
has the meaning assigned to such term in the introductory paragraph of this Agreement.
SECTION 1.02 Terms
Generally. The rules of construction and other interpretive provisions set forth in Sections 1.2, 1.3, 1.5, 1.6, 1.7, 1.8 and 1.11
of the Credit Agreement shall apply to this Agreement, including terms defined in the preamble and recitals to this Agreement..
SECTION
1.03 Impairments. It is the intention of the Secured Parties of each Series that the holders of Obligations of such Series
(and not the Secured Parties of any other Series) bear the risk of (a) any
determination by a court of competent jurisdiction that (i) any of the Obligations of such Series are unenforceable under Applicable
Law or are subordinated to any other obligations (other than another Series of Obligations), (ii) any of the Obligations of such
Series do not have an enforceable security interest in any of the Collateral securing any other Series of Obligations and/or (iii)
any intervening security interest exists securing any other obligations (other than another Series of Obligations) on a basis
ranking prior to the security interest of such Series of Obligations but junior to the security interest of any other Series of
Obligations or (b) the existence of any Collateral for any other Series of Obligations that is not Shared Collateral (any such
condition referred to in the foregoing clauses (a) or (b) with respect to any Series of Obligations, an
“Impairment” of such Series); provided, that the existence of a maximum claim with respect to any real
property subject to a mortgage which applies to all Obligations shall not be deemed to be an Impairment of any Series of
Obligations. In the event of any Impairment with respect to any Series of Obligations, the results of such Impairment shall be borne
solely by the holders of such Series of Obligations, and the rights of the holders of such Series of Obligations (including, without
limitation, the right to receive distributions in respect of such Series of Obligations pursuant to Section 2.01) set forth
herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the
Series of such Obligations subject to such Impairment. Additionally, in the event the Obligations of any Series are modified
pursuant to Applicable Law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code or any equivalent
provision of any other Bankruptcy Law), any reference to such Obligations or the Security Documents governing such Obligations shall
refer to such obligations or such documents as so modified.
ARTICLE II
Priorities and Agreements
with Respect to Shared Collateral
SECTION 2.01 Priority of Claims.
(a)
Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03),
if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any Secured Party is taking action to enforce
rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of
Holdings, the Borrower or any other Grantor or any Secured Party receives any payment pursuant to any intercreditor agreement (other than
this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral
by any Secured Party or received by the Applicable Collateral Agent or any Secured Party pursuant to any such intercreditor agreement
with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence
immediately following) to which the Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds
of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred
to as “Proceeds”), shall be applied (i) FIRST, to the payment in full in cash of all amounts owing to each Collateral Agent
(in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in
full in cash of the Obligations of each Series on a ratable basis, with such Proceeds to be applied to the Obligations of a given Series
in accordance with the terms of the applicable Secured Credit Documents; and (iii) THIRD, after payment in full in cash of all Obligations,
to the Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully
entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a),
any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which
it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit
of all Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared
Collateral for which a third party (other than a Secured Party) has a lien or security interest that is junior in priority to the security
interest of any Series of Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security
interest of any other Series of Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral
or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or
Proceeds to be distributed in respect of the Series of Obligations with respect to which such Impairment exists.
(b)
It is acknowledged that the Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit
Documents and subject to Section 2.08, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded,
Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the
provisions of this Agreement defining the relative rights of the Secured Parties of any Series.
(c)
Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of
Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or
any other Applicable Law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the Obligations of any Series
or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each Secured Party hereby agrees that the Liens securing
each Series of Obligations on any Shared Collateral shall be of equal priority.
SECTION
2.02 Actions with Respect to Shared Collateral; Prohibition on Contesting Liens.
(a)
Only the Applicable Collateral Agent shall act or refrain from acting with respect to any Shared Collateral (including with respect
to any intercreditor agreement with respect to any Shared Collateral). At any time when the Credit Agreement Collateral Agent is the Applicable
Collateral Agent, no Additional Secured Party shall or shall instruct any Collateral Agent to, commence any judicial or nonjudicial foreclosure
proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action
to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest
in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor
agreement with respect to any Shared Collateral), whether under any Additional Security Document, Applicable Law or otherwise, it being
agreed that only the Credit Agreement Collateral Agent or any person authorized by it, acting in accordance with the Credit Agreement
Collateral Documents, shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral at such
time.
(b)
With respect to any Shared Collateral at any time when the Additional Collateral Agent or the Initial Additional Collateral Agent
is the Applicable Collateral Agent, (i) the Applicable Collateral Agent shall act only on the instructions of the Applicable Authorized
Representative, (ii) the Applicable Collateral Agent shall not follow any instructions with respect to such Shared Collateral (including
with respect to any intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Authorized Representative
(or any other Secured Party other than the Applicable Authorized Representative) and (iii) no Non-Controlling Authorized Representative
or other Secured Party (other than the Applicable Authorized Representative) shall or shall instruct the Applicable Collateral Agent to,
commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar
official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise
take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared
Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral), whether under any Security Document,
Applicable Law or otherwise, it being agreed that only the Applicable Collateral Agent, acting on the instructions of the Applicable Authorized
Representative and in accordance with the Additional Security Documents or Initial Additional Security Documents (as applicable), shall
be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral.
(c)
Notwithstanding the equal priority of the Liens securing each Series of Obligations, the Applicable Collateral Agent (in the case
of the Additional Collateral Agent or the Initial Additional Collateral Agent, acting on the instructions of the Applicable Authorized
Representative) may deal with the Shared Collateral as if such Applicable Collateral Agent had a senior Lien on such Collateral. No Non-Controlling
Authorized Representative or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought
by the Applicable Collateral Agent, the Applicable Authorized Representative or the Controlling Secured Party or any other exercise by
the Applicable Collateral Agent, the Applicable Authorized Representative or the Controlling Secured Party of any rights and remedies
relating to the Shared Collateral, or to cause the Applicable Collateral Agent to do so. The foregoing shall not be construed to limit
the rights and priorities of any Secured Party, the Applicable Collateral Agent or any Authorized Representative with respect to any Collateral
not constituting Shared Collateral.
(d) Each
of the Secured Parties agrees that it will not (and hereby waives any right to) question or contest or support any other Person in
contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity, attachment
or enforceability of a Lien held by or on behalf of any of the Secured Parties in all or any part of the Collateral, or the
provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any
Collateral Agent or any Authorized Representative to enforce this Agreement.
SECTION 2.03 No Interference; Payment Over.
(a) Each
Secured Party agrees that (i) it will not challenge or question in any proceeding the validity or enforceability of any Obligations
of any Series or any Security Document or the validity, attachment, perfection or priority of any Lien under any Security Document
or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement; (ii) it
will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any
manner, whether by judicial proceedings or otherwise, any Disposition of the Shared Collateral by the Applicable Collateral Agent,
(iii) except as provided in Section 2.02, it shall have no right to (A) direct the Applicable Collateral Agent or any other Secured
Party to exercise any right, remedy or power with respect to any Shared Collateral (including pursuant to any intercreditor
agreement) or (B) consent to the exercise by the Applicable Collateral Agent or any other Secured Party of any right, remedy or
power with respect to any Shared Collateral, (iv) it will not institute any suit, Insolvency or Liquidation Proceeding or any other
proceeding any claim against the Applicable Collateral Agent or any other Secured Party seeking damages from or other relief by way
of specific performance, instructions or otherwise with respect to any Shared Collateral, and none of the Applicable Collateral
Agent, any Applicable Authorized Representative or any other Secured Party shall be liable for any action taken or omitted to be
taken by the Applicable Collateral Agent, such Applicable Authorized Representative or other Secured Party with respect to any
Shared Collateral in accordance with the provisions of this Agreement, (v) it will not seek, and hereby waives any right, to have
any Shared Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral and (vi) it will
not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision
of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the
Applicable Collateral Agent or any other Secured Party to enforce this Agreement.
(b)
Each Secured Party hereby agrees that if it shall obtain possession of any Shared Collateral or shall realize any proceeds or payment
in respect of any such Shared Collateral, pursuant to any Security Document or by the exercise of any rights available to it under Applicable
Law or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies (including pursuant to any intercreditor
agreement), at any time prior to the Discharge of each of the Obligations, then it shall hold such Shared Collateral, proceeds or payment
in trust for the other Secured Parties and promptly transfer such Shared Collateral, proceeds or payment, as the case may be, to the Applicable
Collateral Agent, to be distributed in accordance with the provisions of Section 2.01 hereof.
SECTION 2.04 Automatic Release of Liens.
(a)
If, at any time the Applicable Collateral Agent forecloses upon or otherwise exercises remedies against any Shared Collateral resulting
in a sale or disposition thereof, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor
of the other Collateral Agent for the benefit of each Series of Secured Parties upon such Shared Collateral will automatically be released
and discharged as and when, but only to the extent, such Liens of the Applicable Collateral Agent on such Shared Collateral are released
and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01.
(b)
Each Collateral Agent and Authorized Representative agrees to execute and deliver (at the sole cost and expense of the Grantors)
all such authorizations and other instruments as shall reasonably be requested by the Applicable Collateral Agent to evidence and confirm
any release of Shared Collateral provided for in this Section 2.04.
SECTION
2.05 Certain Agreements with Respect to Insolvency or Liquidation Proceedings.
(a)
This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy
Code or any other Bankruptcy Law, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law by or against
Holdings, the Borrower or any of its Subsidiaries.
(b)
If Holdings, the Borrower and/or any other Grantor shall become subject to a case or other proceedings under the Bankruptcy Code
or any other Bankruptcy Law (a “Bankruptcy Case”) and shall, as debtor(s)-in-possession, move for approval of financing
(“DIP Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of
the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law or the use of cash collateral under Section 363 of the Bankruptcy
Code or any equivalent provision of any other Bankruptcy Law, each Secured Party (other than any Controlling Secured Party or Authorized
Representative of any Controlling Secured Party) agrees that it will raise no objection to any such financing or to the Liens on the Shared
Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Shared Collateral,
unless the Authorized Representative of any Controlling Secured Party, shall then oppose or object to such DIP Financing or such DIP Financing
Liens or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral
for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party will subordinate its Liens with respect to such
Shared Collateral on the same terms as the Liens of the Controlling Secured Parties (other than any Liens of any Secured Parties constituting
DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank equal in priority with the Liens
on any such Shared Collateral granted to secure the Obligations of the Controlling Secured Parties, each Non-Controlling Secured Party
will confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the Secured Parties
of each Series retain the benefit of their Liens on all such Shared Collateral pledged to the DIP Lenders, including proceeds thereof
arising after the commencement of such proceeding, with the same priority vis-à-vis all the other Secured Parties (other than any
Liens of the Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the Secured
Parties of each Series are granted Liens on any additional collateral pledged to any Secured Parties as adequate protection or otherwise
in connection with such DIP Financing or use of cash collateral, with the same priority vis-à-vis the Secured Parties (other than
any Liens of the Secured Parties constituting DIP Financing Liens) as set forth in this Agreement, (C) if any amount of such DIP Financing
or cash collateral is applied to repay any of the Obligations, such amount is applied pursuant to Section 2.01, and (D) if any Secured
Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash
collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01; provided that the Secured Parties of
each Series shall have a right to object to the grant of a Lien to secure the DIP Financing over any Collateral subject to Liens in favor
of the Secured Parties of such Series or its Authorized Representative that shall not constitute Shared Collateral; and provided,
further, that the Secured Parties receiving adequate protection shall not object to any other Secured Party receiving adequate
protection comparable to any adequate protection granted to such Secured Parties in connection with a DIP Financing or use of cash collateral.
SECTION 2.06
Reinstatement. In the event that any of the Obligations shall be paid in full and such payment or any part thereof shall subsequently,
for whatever reason (including an order or judgment for disgorgement or avoidance of a preference under or fraudulent transfer any Bankruptcy
Law, or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions
of this Article II shall be fully applicable thereto until all such Obligations shall again have been paid in full in cash.
SECTION 2.07 Insurance.
As between the Secured Parties, the Applicable Collateral Agent (and in the case of the Additional Collateral Agent, acting at the direction
of the Applicable Authorized Representative) shall have the right to adjust or settle any insurance policy or claim covering or constituting
Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting
the Shared Collateral.
SECTION 2.08 Refinancings.
The Obligations of any Series may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent
a consent is otherwise required to permit the Refinancing transaction under any Secured Credit Document) of any Secured Party of any other
Series, all without affecting the priorities provided for herein or the other provisions hereof; provided that the Authorized Representative
of the holders of any such Refinancing indebtedness shall have executed a Joinder Agreement on behalf of the holders of such Refinancing
indebtedness.
SECTION 2.09 Possessory Collateral Agent as Gratuitous
Bailee for Perfection.
(a)
The Possessory Collateral shall be delivered to the Credit Agreement Collateral Agent and the Credit Agreement Collateral Agent
agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or
in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of each other Secured Party and any assignee
solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Security
Documents, in each case, subject to the terms and conditions of this Section 2.09; provided that at any time the Credit Agreement
Collateral Agent is not the Applicable Collateral Agent, the Credit Agreement Collateral Agent shall, at the request of the Applicable
Collateral Agent, promptly deliver all Possessory Collateral to the Applicable Collateral Agent together with any necessary endorsements
(or otherwise allow the Applicable Collateral Agent to obtain control of such Possessory Collateral). The Borrower shall take such further
action as is required to effectuate the transfer contemplated hereby and shall indemnify each Collateral Agent for loss or damage suffered
by such Collateral Agent as a result of such transfer except for loss or damage suffered by such Collateral Agent as a result of its own
willful misconduct, gross negligence or bad faith.
(b)
The Applicable Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its
possession, as gratuitous bailee for the benefit of each other Secured Party and any assignee, solely for the purpose of perfecting the
security interest granted in such Possessory Collateral, if any, pursuant to the applicable Security Documents, in each case, subject
to the terms and conditions of this Section 2.09.
(c)
The duties or responsibilities of each Collateral Agent under this Section 2.09 shall be limited solely to holding any Shared Collateral
constituting Possessory Collateral as gratuitous bailee for the benefit of each other Secured Party for purposes of perfecting the Lien
held by such Secured Parties therein.
SECTION 2.10 Amendments to Security Documents.
(a)
Without the prior written consent of the Credit Agreement Collateral Agent, the Additional Collateral Agent and the Initial Additional
Collateral Agent agree that no Additional Security Document or Initial Additional Security Document may be amended, supplemented or otherwise
modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Additional Security Document
or new Initial Additional Security Document would be prohibited by, or would require any Grantor to act or refrain from acting in a manner
that would violate, any of the terms of this Agreement.
(b)
Without the prior written consent of the Additional Collateral Agent and the Initial Additional Collateral Agent, the Credit Agreement
Collateral Agent agrees that no Credit Agreement Collateral Document may be amended, supplemented or otherwise modified or entered into
to the extent such amendment, supplement or modification, or the terms of any new Credit Agreement Collateral Document would be prohibited
by, or would require any Grantor to act or refrain from acting in a manner that would violate, any of the terms of this Agreement.
(c)
In making determinations required by this Section 2.10, each Collateral Agent may conclusively rely on an officer’s certificate
of the Borrower.
ARTICLE III
Existence and Amounts of Liens
and Obligations
SECTION 3.01
Determinations with Respect to Amounts of Liens and Obligations. Whenever a Collateral Agent or any Authorized Representative shall
be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence
or amount of any Obligations of any Series, or the Shared Collateral subject to any Lien securing the Obligations of any Series, it may
request that such information be furnished to it in writing by each other Authorized Representative or Collateral Agent and shall be entitled
to make such determination or not make any determination on the basis of the information so furnished; provided, however,
that if an Authorized Representative or a Collateral Agent shall fail or refuse reasonably promptly to provide the requested information,
the requesting Collateral Agent or Authorized Representative shall be entitled to make any such determination by such method as it may,
in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Borrower. Each Collateral Agent
and each Authorized Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it
in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall
have no liability to any Grantor, any Secured Party or any other person as a result of such determination.
ARTICLE IV
The Applicable Collateral
Agent
SECTION 4.01 Authority.
(a)
Notwithstanding any other provision of this Agreement, nothing herein shall be construed to impose any fiduciary or other duty
on any Applicable Collateral Agent to any Non- Controlling Secured Party or give any Non-Controlling Secured Party the right to direct
any Applicable Collateral Agent, except that each Applicable Collateral Agent shall be obligated to distribute proceeds of any Shared
Collateral in accordance with Section 2.01 hereof.
(b)
In furtherance of the foregoing, each Non-Controlling Secured Party acknowledges and agrees that the Applicable Collateral Agent
shall be entitled, for the benefit of the Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral
as provided herein and in the Security Documents, as applicable, for which the Applicable Collateral Agent is the collateral agent of
such Shared Collateral, without regard to any rights to which the Non-Controlling Secured Parties would otherwise be entitled as a result
of the Obligations held by such Non-Controlling Secured Parties. Without limiting the foregoing, each Non-Controlling Secured Party agrees
that none of the Applicable Collateral Agent, the Applicable Authorized Representative or any other Secured Party shall have any duty
or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the Obligations),
or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any Obligations),
in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any
such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured
Parties from such realization, sale, disposition or liquidation. Each of the Secured Parties waives any claim it may now or hereafter
have against any Collateral Agent or the Authorized Representative of any other Series of Obligations or any other Secured Party of any
other Series arising out of (i) any actions which any Collateral Agent, Authorized Representative or the Secured Parties take or omit
to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect
to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect
to the collection of any claim for all or any part of the Obligations from any account debtor, guarantor or any other party) in accordance
with the Security Documents or any other agreement related thereto or to the collection of the Obligations or the valuation, use, protection
or release of any security for the Obligations, (ii) any election by any Applicable Collateral Agent, any Applicable Authorized Representative
or any holders of Obligations, in any proceeding instituted under the Bankruptcy Code or any other applicable Bankruptcy Law, of the application
of Section 1111(b) of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, or (iii) subject to Section 2.05,
any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent
provision of any other Bankruptcy Law, by Holdings, the Borrower or any of its Subsidiaries, as debtor-in-possession. Notwithstanding
any other provision of this Agreement, the Applicable Collateral Agent shall not accept any Shared Collateral in full or partial satisfaction
of any Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction or similar provision of any foreign law,
without the consent of each Authorized Representative representing holders of Obligations for whom such Collateral constitutes Shared
Collateral.
ARTICLE V
Miscellaneous
SECTION 5.01
Notices. 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 telecopy, as follows:
(a) if to the Credit Agreement Collateral Agent, to it at:
UBS AG, Stamford Branch
600 Washington Blvd., 9th Floor
Stamford, CT 06901
Attn: Structured Finance Processing
Tel: [*****]
Facsimile: [*****]
Email: [*****]
(b)
if to the Credit Agreement Administrative Agent, to it at:
UBS AG, Stamford Branch
600 Washington Blvd., 9th Floor
Stamford, CT 06901
Attn: Structured Finance Processing
Tel: [*****]
Facsimile: [*****]
Email: [*****]
(c) if to Holdings, the Borrower or any Grantor, to the Borrower, at its address at:
c/o Wirepath LLC
1800 Continental Boulevard, Suite 200
Charlotte, NC 28273
Attention:
[*****]
Tel: [*****]
Email: [*****]
(d) if to the Initial Additional Collateral Agent and the Initial Additional Authorized Representative, to it at:
[ ]
(e) if to any other Authorized Representative, to it at the address set forth in the applicable Joinder Agreement.
Any party hereto may change its
address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the
date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier
service or sent by telecopy or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered,
sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance with the latest unrevoked direction
from such party given in accordance with this Section 5.01. As agreed to in writing among each Collateral Agent and each Authorized
Representative from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative
of the applicable person provided from time to time by such person.
SECTION 5.02 Waivers; Amendment; Joinder Agreements.
(a) No
failure or delay on the part of any party hereto in exercising any right or power hereunder 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 parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section 5.02, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances.
(b)
Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified (other than pursuant to any Joinder
Agreement) except pursuant to an agreement or agreements in writing entered into by each Authorized Representative and each Collateral
Agent (and with respect to any such termination, waiver, amendment or modification which by the terms of this Agreement requires the Borrower’s
consent or which increases the obligations or reduces the rights of the Borrower or any other Grantor, with the consent of the Borrower).
(c)
Notwithstanding the foregoing, without the consent of any Secured Party, any Authorized Representative may become a party hereto
by execution and delivery of a Joinder Agreement in accordance with Section 5.13 and upon such execution and delivery, such Authorized
Representative and the Additional Secured Parties that become subject to this Agreement after the date hereof and Additional Obligations
of the Series for which such Authorized Representative is acting shall be subject to the terms hereof and the terms of the Additional
Security Documents applicable thereto.
(d)
Notwithstanding the foregoing, without the consent of any other Authorized Representative or Secured Party, the Collateral Agents
may effect amendments and modifications to this Agreement to the extent necessary to reflect any Incurrence of any Additional Obligations
in compliance with the Credit Agreement and the other Secured Credit Documents. With respect to any Additional Class Debt that is Incurred
after the Closing Date, the Borrower and each of the other Grantors agrees to take such actions (if any) as may from time to time reasonably
be requested by any Authorized Representative, and enter into such technical amendments, modifications and/or supplements to this Agreement,
the then existing Guarantees and Collateral Documents (or execute and deliver such additional Collateral Documents) as may from time to
time be reasonably requested by such Persons, to ensure that such Additional Class Debt are secured by, and entitled to the benefits of,
the relevant Collateral Documents relating to such Additional Class Debt, and each Secured Party (by its acceptance of the benefits hereof)
hereby agrees to, and authorizes the applicable Authorized Representative, as the case may be, to enter into, any such technical amendments,
modifications and/or supplements (and additional Collateral Documents).
SECTION 5.03 Parties
in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns, as well as the other Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.
SECTION 5.04
Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered
to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 5.05
Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature
page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart
hereof.
SECTION 5.06
Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 5.07
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 5.08
Submission to Jurisdiction Waivers; Consent to Service of Process. Each Collateral Agent and each Authorized Representative, on
behalf of itself and the Secured Parties of the Series for whom it is acting, irrevocably and unconditionally:
(a)
submits for itself and its property in any legal action or proceeding relating to this Agreement and the Security Documents, or
for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York
located in the Borough of Manhattan, the courts of the United States for the Southern District of New York, and appellate courts from
any thereof;
(b)
consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c)
agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Authorized Representative) at the address set
forth in Section 5.01;
(d)
agrees that nothing herein shall affect the right of any other party hereto (or any Secured Party) to effect service of process
in any other manner permitted by law or shall limit the right of any party hereto (or any Secured Party) to sue in any other jurisdiction;
and
(e)
waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding
referred to in this Section 5.08 any special, exemplary, punitive or consequential damages.
SECTION 5.09
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR FOR ANY COUNTERCLAIM THEREIN.
SECTION 5.10
Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement
and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 5.11 Conflicts.
In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the Security Documents
or any of the other Secured Credit Documents, the provisions of this Agreement shall control.
SECTION 5.12
Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining
the relative rights of the Secured Parties in relation to one another. None of the Borrower, any other Grantor or any other creditor
thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement (provided that nothing
in this Agreement (other than Sections 2.04, 2.05, and 2.09) is intended to or will amend, waive or otherwise modify
the provisions of the Credit Agreement or any Additional Documents), and none of the Borrower or any other Grantor may rely on the terms
hereof (other than Sections 2.04, 2.05, 2.09 and Article V). Nothing in this Agreement is intended to or
shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the Obligations as and when the same shall
become due and payable in accordance with their terms.
SECTION 5.13 Additional
Senior Debt. To the extent, but only to the extent permitted by the provisions of the Credit Agreement and the Additional Documents,
the Borrower may Incur additional indebtedness after the date hereof that is permitted by the Credit Agreement and the Additional Documents
to be Incurred and secured by the Shared Collateral on a priority basis that is equal to the Liens on the Shared Collateral securing the
Obligations (such indebtedness referred to as “Additional Class Debt”). Any such Additional Class Debt may be secured
by a Lien on the Shared Collateral on a basis that is equal to the Liens on the Shared Collateral securing the Obligations, in each case
under and pursuant to the Additional Documents, if and subject to the condition that the Authorized Representative of any such Additional
Class Debt (each, an “Additional Class Debt Representative”), acting on behalf of the holders of such Additional Class
Debt (such Authorized Representative and holders in respect of any Additional Class Debt being referred to as the “Additional
Class Debt Parties”), and, to the extent not already a party hereto, the collateral agent for any such Additional Class Debt,
becomes a party to this Agreement by satisfying the conditions set forth in clauses (i) through (iv) of the immediately succeeding paragraph.
In order for
an Additional Class Debt Representative and, if applicable, the collateral agent for any such Additional Class Debt, to become a party
to this Agreement,
(i)
such Additional Class Debt Representative, each Collateral Agent, each Authorized Representative and each Grantor shall have executed
and delivered an instrument substantially in the form of Annex II (with such changes as may be reasonably approved by each Collateral
Agent and such Additional Class Debt Representative) pursuant to which (a) such Additional Class Debt Representative becomes an Authorized
Representative hereunder, (b) if applicable, such collateral agent becomes the Additional Collateral Agent hereunder, and (c) the Additional
Class Debt in respect of which such Additional Class Debt Representative is the Authorized Representative and the related Additional Class
Debt Parties become subject hereto and bound hereby;
(ii)
the Borrower shall have (x) delivered to each Collateral Agent true and complete copies of each of the Additional Documents relating
to such Additional Class Debt, certified as being true and correct by an authorized officer of the Borrower and (y) identified in a certificate
of an authorized officer the obligations to be designated as Additional Obligations and the initial aggregate principal amount or face
amount thereof;
(iii)
all filings, recordations and/or amendments or supplements to the Security Documents necessary or desirable in the reasonable
judgment of such Additional Class Debt Representative to confirm and perfect the Liens securing the relevant obligations relating to
such Additional Class Debt shall have been made, executed and/or delivered (or, with respect to any such filings or recordations, acceptable
provisions to perform such filings or recordings have been taken in the reasonable judgment of such Additional Class Debt Representative),
and all fees and taxes in connection therewith shall have been paid (or acceptable provisions to make such payments have been taken in
the reasonable judgment of the Additional Class Debt Representative); and
(iv)
the Additional Documents, as applicable, relating to such Additional Class Debt shall provide, in a manner reasonably satisfactory
to each Collateral Agent, that each Additional Class Debt Party with respect to such Additional Class Debt will be subject to and bound
by the provisions of this Agreement in its capacity as a holder of such Additional Class Debt.
SECTION 5.14
Agent Capacities. Except as expressly provided herein or in the Credit Agreement Collateral Documents, UBS is acting in the capacity
of Authorized Representative solely for the Credit Agreement Secured Parties and in its capacity as Collateral Agent solely for the Credit
Agreement Secured Parties, the Initial Additional Credit Agreement Secured Parties and the Additional Credit Agreement Secured Parties.
Except as expressly set forth herein, none of the Administrative Agent, the Credit Agreement Collateral Agent, the Initial Additional
Collateral Agent or the Additional Collateral Agent shall have any duties or obligations in respect of any of the Collateral, all of such
duties and obligations, if any, being subject to and governed by the applicable Secured Credit Documents.
SECTION 5.15
Integration. This Agreement together with the other Secured Credit Documents and the Security Documents represents the agreement
of each of the Grantors and the Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations
or warranties by any Grantor, the Credit Agreement Collateral Agent, or any other Secured Party relative to the subject matter hereof
not expressly set forth or referred to herein or in the other Secured Credit Documents or the Security Documents.
[Signature Pages Follows]
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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UBS AG, STAMFORD
BRANCH, as Collateral Agent
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UBS AG, STAMFORD BRANCH,
as Authorized Representative for the Credit Agreement Secured Parties
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[ ],
as Initial Additional Collateral Agent
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[ ],
as Initial Additional Authorized Representative for the Initial Additional Credit Agreement Secured Parties
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[CRACKLE PURCHASER CORP.]
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[WIREPATH LLC]
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[GRANTORS]
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ANNEX I
Grantors
ANNEX II
[FORM OF] JOINDER NO. [ ] dated
as of [ ], 20[ ] to the EQUAL PRIORITY INTERCREDITOR AGREEMENT dated as of [ ] (the “Equal Priority Intercreditor Agreement”),
among CRACKLE PURCHASER CORP., a Delaware corporation (or any successor thereof), WIREPATH LLC, a Delaware limited liability
company, as the Borrower, the other Grantors (as defined below) from time to time party thereto, UBS AG, STAMFORD BRANCH (“UBS”),
as collateral agent for the Credit Agreement Secured Parties under the Security Documents (in such capacity and together with its successors
in such capacity, the “Credit Agreement Collateral Agent”), UBS AG, STAMFORD BRANCH, as Authorized Representative
for the Credit Agreement Secured Parties, [[ ], as Additional Collateral Agent], [ ], as Initial Additional Authorized Representative,
and the additional Authorized Representatives from time to time a party thereto.1
A.
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Equal Priority
Intercreditor Agreement.
B.
As a condition to the ability of the Borrower to Incur Additional Obligations and to secure such Additional Class Debt with the
liens and security interests created by the Additional Security Documents, the Additional Class Debt Representative in respect of such
Additional Class Debt is required to become an Authorized Representative, and such Additional Class Debt and the Additional Class Debt
Parties in respect thereof are required to become subject to and bound by, the Equal Priority Intercreditor Agreement. Section 5.13
of the Equal Priority Intercreditor Agreement provides that such Additional Class Debt Representative may become an Authorized Representative,
and such Additional Class Debt and such Additional Class Debt Parties may become subject to and bound by the Equal Priority Intercreditor
Agreement upon the execution and delivery by the Authorized Representative of an instrument in the form of this Joinder and the satisfaction
of the other conditions set forth in Section 5.13 of the Equal Priority Intercreditor Agreement. The undersigned Additional Class
Debt Representative (the “New Representative”) are executing this Joinder Agreement in accordance with the requirements
of the Equal Priority Intercreditor Agreement and the Security Documents.
Accordingly,
each Collateral Agent, each Authorized Representative and the New Representative agree as follows:
SECTION 1. In
accordance with Section 5.13 of the Equal Priority Intercreditor Agreement, the New Representative by its signature below becomes
an Authorized Representative under, and the related Additional Class Debt and Additional Class Debt Parties become subject to and bound
by, the Equal Priority Intercreditor Agreement with the same force and effect as if the New Representative had originally been named therein
as an Authorized Representative and the New Representative, on its behalf and on behalf of such Additional Class Debt Parties, hereby
agrees to all the terms and provisions of the Equal Priority Intercreditor Agreement applicable to it as Authorized Representative and
to the Additional Class Debt Parties that it represents as Additional Secured Parties. Each reference to an “Authorized Representative”
in the Equal Priority Intercreditor Agreement shall be deemed to include the New Representative. The Equal Priority Intercreditor Agreement
is hereby incorporated herein by reference.
1 In
the event of (a) a joinder by the Additional Collateral Agent or (b) the Refinancing of the Credit Agreement Obligations, revise to reflect
joinder by the Additional Collateral Agent or a new Credit Agreement Collateral Agent, as applicable.
SECTION
2. The New Representative represents and warrants to each Collateral Agent, each Authorized Representative and the other Secured Parties,
individually, that (i) it has full power and authority to enter into this Joinder, in its capacity as [agent] [trustee] under [describe
Additional Document, (ii) this Joinder has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms and (iii) the Additional Documents relating to such Additional Class Debt
provide that, upon the New Representative’s entry into this Agreement, the Additional Class Debt Parties in respect of such Additional
Class Debt will be subject to and bound by the provisions of the Equal Priority Intercreditor Agreement as Additional Secured Parties.
SECTION
3. This Joinder may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Joinder shall become effective when each Collateral Agent shall have received a counterpart of this
Joinder that bears the signatures of the New Representative. Delivery of an executed signature page to this Joinder by facsimile transmission
shall be effective as delivery of a manually signed counterpart of this Joinder.
SECTION 4.
Except as expressly supplemented hereby, the Equal Priority Intercreditor Agreement shall remain in full force and effect.
SECTION 5.
THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
6. In case any one or more of the provisions contained in this Joinder should be held invalid, illegal or unenforceable in any respect,
no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable,
but the validity, legality and enforceability of the remaining provisions contained herein and in the Equal Priority Intercreditor Agreement
shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
SECTION
7. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the Equal Priority Intercreditor
Agreement. All communications and notices hereunder to the New Representative shall be given to it at its address set forth below its
signature hereto.
SECTION 8. The
Borrower agrees to reimburse each Collateral Agent and each Authorized Representative for its reasonable and documented or invoiced out-of-pocket
expenses in connection with this Joinder, including the reasonable fees, other charges and disbursements of one firm of counsel.
[Signature Page Follows]
IN WITNESS WHEREOF, the New Representative
has duly executed this Joinder to the Equal Priority Intercreditor Agreement as of the day and year first above written.
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[NAME OF NEW REPRESENTATIVE], as [ ]
for the holders of [ ],
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By:
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Name:
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Title:
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Address for notices:
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attention of:
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Telecopy:
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Acknowledged by:
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UBS AG, STAMFORD BRANCH,
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as the Credit Agreement Collateral
Agent and Authorized Representative,
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By:
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Name:
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Title:
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[ ],
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as [the Additional Collateral Agent
and] Initial Additional Authorized Representative,
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By:
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Name:
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Title:
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[OTHER AUTHORIZED REPRESENTATIVES]
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CRACKLE PURCHASER CORP.,
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as Holdings
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By:
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Name:
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Title:
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WIREPATH LLC,
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as Borrower
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By:
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Name:
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Title:
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THE OTHER GRANTORS
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LISTED ON SCHEDULE I HERETO
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By:
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Name:
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Title:
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ANNEX II
Schedule I
to the
Supplement to the
Equal Priority Intercreditor Agreement
Grantors
Exhibit G-1
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EXHIBIT G-2
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TO THE CREDIT AGREEMENT
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FORM OF JUNIOR PRIORITY INTERCREDITOR
AGREEMENT
JUNIOR PRIORITY INTERCREDITOR
AGREEMENT
Among
CRACKLE PURCHASER CORP
as Holdings,
WIREPATH LLC,
as the Borrower,
and the other Grantors party hereto,
UBS
AG, STAMFORD BRANCH,
as Senior Priority Representative for
the First Lien Credit Agreement Secured Parties,
[ ],
as Second Priority Representative
for the Second Lien Secured Parties,
and
each additional Representative
from time to time party hereto
dated
as of [ ]
JUNIOR PRIORITY
INTERCREDITOR AGREEMENT dated as of [ ] (this “Agreement”),
among CRACKLE PURCHASER CORP., a Delaware corporation (or any successor thereof), WIREPATH LLC, a Delaware limited liability company,
the other Grantors (as defined below) party hereto, UBS AG, STAMFORD BRANCH (“UBS”) as Representative for the First
Lien Credit Agreement Secured Parties (in such capacity and together with its successors in such capacity, the “First Lien Collateral
Agent”), [ ] as Representative for the Second Lien Secured Parties (in such capacity and
together with its successors in such capacity, the “Second Lien Agent”), and each additional Senior Priority Representative
and Second Priority Representative that from time to time becomes a party hereto pursuant to Section 8.09.
In consideration
of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the First Lien Collateral Agent (for itself and on behalf of the First Lien Credit Agreement Secured Parties), the Second Lien Agent (for
itself and on behalf of the Second Lien Secured Parties) and each additional Senior Priority Representative (for itself and on behalf
of the Additional Senior Secured Parties under the applicable Additional Senior Priority Debt Facility) and each additional Second Priority
Representative (for itself and on behalf of the Additional Second Priority Secured Parties under the applicable Additional Second Priority
Debt Facility) agree as follows:
ARTICLE
1 DEFINITIONS
SECTION 1.01.
Certain Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings set forth in the First Lien Credit
Agreement or, if defined in the New York UCC, the meanings specified therein. As used in this Agreement, the following terms have the
meanings specified below:
“Additional
Second Priority Debt” means any Indebtedness that is Incurred or guaranteed by the Borrower, Holdings and/or any other Guarantor
(other than Indebtedness constituting Second Lien Obligations), which Indebtedness and Guarantees are secured by Liens on the Second Priority
Collateral (or a portion thereof) having, or intended to have, a priority ranking (but without regard to control of remedies, other than
as provided by the terms of the applicable Second Priority Debt Documents) that is junior to the Liens on the Second Priority Collateral
securing the First Lien Obligations; provided, however, that (a) such Indebtedness is permitted to be Incurred, secured
and guaranteed on such basis by each Senior Priority Debt Document and Second Priority Debt Document and (b) the Representative for the
holders of such Indebtedness shall have become party to this Agreement pursuant to, and by satisfying the conditions set forth in, Section
8.09 hereof.
“Additional
Second Priority Debt Documents” means, with respect to any series, issue or class of Additional Second Priority Debt, the promissory
notes, credit agreements, loan agreements, note purchase agreements, indentures or other operative agreements evidencing or governing
such Indebtedness or the Liens securing such Indebtedness, including the Second Priority Collateral Documents.
“Additional
Second Priority Debt Facility” means each credit agreement, loan agreement, note purchase agreement, indenture or other governing
agreement with respect to any Additional Second Priority Debt.
“Additional
Second Priority Debt Obligations” means, with respect to any series, issue or class of Additional Second Priority Debt,
(a) all principal of, and premium and interest, fees and expenses (including, without limitation, any interest, fees and expenses
which accrue after the commencement of any Bankruptcy Case or which would accrue but for the operation of Bankruptcy Laws, whether
or not allowed or allowable as a claim in any such proceeding) payable with respect to, such Additional Second Priority Debt, (b)
all other amounts payable to the related Additional Second Priority Secured Parties under the related Additional Second Priority
Debt Documents and (c) any renewals or extensions of the foregoing.
“Additional
Second Priority Secured Parties” means, with respect to any series, issue or class of Additional Second Priority Debt, the holders
of such Indebtedness or any other Additional Second Priority Debt Obligation, the Representative with respect thereto, any trustee or
agent therefor under any related Additional Second Priority Debt Documents and the beneficiaries of each indemnification obligation undertaken
by the Borrower or any Guarantor under any related Additional Second Priority Debt Documents.
“Additional
Senior Priority Debt” means any Indebtedness that is Incurred or guaranteed by the Borrower, Holdings and/or any other Guarantor
(other than Indebtedness constituting First Lien Credit Agreement Obligations), which Indebtedness and Guarantees are secured by Liens
on the Senior Priority Collateral (or a portion thereof) having the same priority ranking (but without regard to control of remedies)
as the Liens on the Senior Priority Collateral securing the First Lien Credit Agreement Obligations; provided, however,
that (a) such Indebtedness is permitted to be Incurred, secured and guaranteed on such basis by each Senior Priority Debt Document and
Second Priority Debt Document and (b) the Representative for the holders of such Indebtedness shall have become party to this Agreement
pursuant to, and by satisfying the conditions set forth in, Section 8.09 hereof.
“Additional Senior
Priority Debt Documents” means, with respect to any series, issue or class of Additional Senior Priority Debt, the promissory
notes, credit agreements, loan agreements, indentures, or other operative agreements evidencing or governing such Indebtedness or the
Liens securing such Indebtedness, including the Senior Priority Collateral Documents.
“Additional
Senior Priority Debt Facility” means each credit agreement, loan agreement, note purchase agreement, indenture or other governing
agreement with respect to any Additional Senior Priority Debt.
“Additional
Senior Priority Debt Obligations” means, with respect to any series, issue or class of Additional Senior Priority Debt, (a)
all principal of, and premium and interest, fees and expenses (including, without limitation, any interest, fees and expenses which accrue
after the commencement of any Bankruptcy Case or which would accrue but for the operation of Bankruptcy Laws, whether or not allowed or
allowable as a claim in any such proceeding) payable with respect to, such Additional Senior Priority Debt, (b) all other amounts payable
to the related Additional Senior Secured Parties under the related Additional Senior Priority Debt Documents and (c) any renewals or extensions
of the foregoing.
“Additional
Senior Secured Parties” means, with respect to any series, issue or class of Additional Senior Priority Debt, the holders of
such Indebtedness or any other Additional Senior Priority Debt Obligation, the Representative with respect thereto, any trustee or agent
therefor under any related Additional Senior Priority Debt Documents and the beneficiaries of each indemnification obligation undertaken
by the Borrower or any Guarantor under any related Additional Senior Priority Debt Documents.
“Agreement” has the meaning assigned
to such term in the introductory paragraph of this
Agreement.
“Bankruptcy Case” means a case under
the Bankruptcy Code or any other Bankruptcy Law.
“Bankruptcy Code”
means Title 11 of the United States Code, as amended.
“Bankruptcy
Laws” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect.
“Board
of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person,
(ii) in the case of any limited liability company, the board of managers of such Person, (iii) in the case of any partnership, the Board
of Directors of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.
“Borrower” means the “Borrower”
as defined in the First Lien Credit Agreement.
“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 and including membership interests and partnership interests)
and, except to the extent constituting Indebtedness, any and all warrants, rights or options to purchase, acquire or exchange any of the
foregoing.
“Class Debt”
has the meaning assigned to such term in Section 8.09.
“Class Debt Parties”
has the meaning assigned to such term in Section 8.09.
“Class Debt Representatives” has the meaning
assigned to such term in Section 8.09.
“Closing Date” means August 4, 2017.
“Collateral” means the Senior Priority
Collateral and the Second Priority Collateral.
“Collateral
Documents” means the Senior Priority Collateral Documents and the Second Priority Collateral Documents.
“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 ownership of Voting Stock, by agreement or otherwise. The terms “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyrights”
means all United States (a) copyrights, rights in works of authorship, mask works and integrated circuit designs and other rights subject
to the copyright laws of the United States, or of any other country or any group of countries, including copyrights and other rights in
Software, data, databases, Internet web sites and the proprietary content thereof, (b) registrations, renewals, rights of reversion, extensions,
supplemental registrations, recordings and applications for registration of any of the foregoing in the United States or any other country,
including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright
Office, and (c) rights to obtain all renewals, reversions and extensions thereof.
“Debt Facility” means any Senior Priority
Debt Facility and any Second Priority Debt Facility.
“Designated
Second Priority Representative” means (a) the Second Lien Agent, so long as the Second Priority Debt Facility under the Second
Lien Agreement is the only Second Priority Debt Facility under this Agreement and (b) at any time when clause (a) does not apply, the
“Applicable Authorized Representative” (as defined in any Second Lien Intercreditor Agreement that may be in effect at such
time).
“Designated
Senior Priority Representative” means (a) the First Lien Collateral Agent, so long as the Senior Priority Debt Facility under
the First Lien Credit Agreement is the only Senior Priority Debt Facility under this Agreement and (b) at any time when clause (a) does
not apply, the “Applicable Authorized Representative” (as defined in any First Lien Intercreditor Agreement that may
be in effect at such time).
“DIP Financing”
has the meaning assigned to such term in Section 6.01.
“Discharge”
means, with respect to any Debt Facility, the date on which such Debt Facility and the Senior Priority Obligations or Second Priority
Debt Obligations thereunder, as the case may be, are no longer secured by Shared Collateral pursuant to the terms of the documentation
governing such Debt Facility. The term “Discharged” shall have a corresponding meaning.
“Discharge
of First Lien Credit Agreement Obligations” means, the Discharge of the First Lien Credit Agreement Obligations; provided
that the Discharge of First Lien Credit Agreement Obligations shall not be deemed to have occurred in connection with a Refinancing of
such First Lien Credit Agreement Obligations with an Additional Senior Priority Debt Facility secured by Shared Collateral under one or
more Additional Senior Priority Debt Documents that have been designated in writing by the “Administrative Agent” (under the
First Lien Credit Agreement so Refinanced) to the Designated Senior Priority Representative as the “First Lien Credit Agreement”
for purposes of this Agreement.
“Discharge
of Senior Priority Obligations” means the date on which the Discharge of First Lien Credit Agreement Obligations and the Discharge
of each Additional Senior Priority Debt Facility has occurred.
“Disposition” means any conveyance,
sale, lease, assignment, transfer, license or other disposition.
“First
Lien Collateral Agent” has the meaning assigned to such term in the introductory paragraph of this Agreement and shall include
any successor administrative agent and collateral agent as provided in Section 12 of the First Lien Credit Agreement.
“First
Lien Credit Agreement” means that certain Credit Agreement, dated as of August 4, 2017, among Holdings, the Borrower, the lenders
from time to time party thereto, UBS, as administrative agent and collateral agent, and the other parties thereto.
“First
Lien Credit Agreement Credit Documents” means the First Lien Credit Agreement and the other “Credit Documents” as
defined in the First Lien Credit Agreement.
“First
Lien Credit Agreement Obligations” means the “Obligations” as defined in the First Lien Credit Agreement.
“First
Lien Credit Agreement Secured Parties” means the “Secured Parties” as defined in the First Lien Credit Agreement.
“First
Lien Intercreditor Agreement” means (a) an intercreditor agreement substantially in the form of the Equal Priority Intercreditor
Agreement (as defined in the First Lien Credit Agreement) or (b) a customary intercreditor agreement in form and substance reasonably
acceptable to the Senior Priority Representative with respect to each Senior Priority Debt Facility in existence at the time such intercreditor
agreement is entered into and the Borrower, and which provides that the Liens securing all Indebtedness covered thereby shall be of equal
priority (but without regard to the control of remedies).
“Grantors”
means Holdings, the Borrower and each Subsidiary that has granted a security interest pursuant to any Collateral Document to secure any
Secured Obligations.
“Guarantors” means the “Guarantors”
as defined in the First Lien Credit Agreement.
“Holdings” means
“Holdings” as defined in the First Lien Credit Agreement.
“Insolvency or Liquidation Proceeding”
means:
(a)
any case commenced by or against the Borrower or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization,
recapitalization or adjustment or marshalling of the assets or liabilities of the Borrower or any other Grantor, any receivership or assignment
for the benefit of creditors relating to the Borrower or any other Grantor or any similar case or proceeding relative to the Borrower
or any other Grantor or its creditors, as such, in each case whether or not voluntary;
(b)
any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Borrower or any other
Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(c)
any other proceeding of any type or nature in which substantially all claims of creditors of the Borrower or any other Grantor
are determined and any payment or distribution is or may be made on account of such claims.
“Intellectual Property” means Copyrights,
Patents and Trademarks.
“Joinder
Agreement” means a supplement to this Agreement in the form of Annex II or Annex III hereof required to be delivered by a
Representative to the Designated Senior Priority Representative or Designated Second Priority Representative, as the case may be,
pursuant to Section 8.09 hereof in order to include an additional Debt Facility hereunder and to become the Representative hereunder
for the Senior Priority Secured Parties or Second Priority Secured Parties, as the case may be, under such Debt Facility.
“Lien”
means any mortgage, pledge, deed of trust, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance
and any easement, right-of-way, license, restriction (including zoning restrictions), defect, exception or irregularity in title or similar
charge or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or
any lease in the nature thereof); provided that in no event shall a straight-line or operating lease be deemed to be a Lien.
“Major
Second Priority Representative” means, with respect to any Shared Collateral, the Second Priority Representative of the
series of Second Priority Debt Obligations that constitutes the largest outstanding principal amount of any then outstanding series
of Second Priority Debt Obligations with respect to such Shared Collateral.
“New York UCC”
means the Uniform Commercial Code as from time to time in effect in the State of New York.
“Officer’s Certificate”
has the meaning assigned to such term in Section 8.08.
“Patents”
means all United States (a) patents, statutory invention registrations, certificates of invention, industrial designs and utility models,
and all pending applications of the foregoing, (b) provisionals, reissues, reexaminations, continuations, divisions, continuations-in-part,
renewals or extensions thereof and (c) the inventions, discoveries and designs disclosed or claimed therein and all improvements thereto,
including the right to make, use and/or sell the inventions, discoveries and designs disclosed or claimed therein.
“Person”
means any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise
or any Governmental Authority (as defined in the First Lien Credit Agreement as in effect on the date hereof).
“Pledged or Controlled Collateral”
has the meaning assigned to such term in Section 5.05(a).
“Proceeds”
means the proceeds of any sale, collection or other liquidation of Shared Collateral and any payment or distribution made in respect of
Shared Collateral in a Bankruptcy Case and any amounts received by any Senior Priority Representative or any Senior Priority Secured Party
from a Second Priority Secured Party in respect of Shared Collateral pursuant to this Agreement.
“Recovery” has the meaning assigned
to such term in Section 6.04.
“Refinance”
means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund,
replace or repay, or to Incur other indebtedness or enter alternative financing arrangements, in exchange or replacement for, such indebtedness
(in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each
case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case,
through any credit agreement, loan agreement, note purchase agreement, indenture or other agreement. “Refinanced” and
“Refinancing” have correlative meanings.
“Registered
Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under
the Securities Act of 1933, substantially identical notes (having the same guarantees) issued in a dollar for dollar exchange therefor
pursuant to an exchange offer registered with the SEC.
“Representatives”
means the Senior Priority Representatives and the Second Priority Representatives.
“SEC” means the United States Securities
and Exchange Commission and any successor agency thereto.
“Second
Lien Agent” has the meaning assigned to such term in the introductory paragraph of this Agreement and shall include any successor
administrative agent and collateral agent as provided in [ ] of the Second Lien Agreement.
“Second Lien Agreement” means that certain
[ ], dated as of [ ], among [ ].
“Second Lien Agreement Credit
Documents” means the Second Lien Agreement and the other “[Credit] Documents” as defined in the Second Lien Agreement.
“Second Lien Obligations” means the
“Obligations” as defined in the Second Lien Agreement.
“Second
Lien Secured Parties” means the “Secured Parties” as defined in the Second Lien Agreement.
“Second
Lien Intercreditor Agreement” means [(a) an intercreditor agreement substantially in the form of the Equal Priority Intercreditor
Agreement (as defined in the Second Lien Agreement) or (b)] a customary intercreditor agreement in form and substance reasonably acceptable
to the Second Priority Representative with respect to each Second Priority Debt Facility in existence at the time such intercreditor agreement
is entered into and the Borrower, and which provides that the Liens securing all Indebtedness covered thereby shall be of equal priority
(but without regard to the control of remedies).
“Second Priority Class Debt” has the
meaning assigned to such term in Section 8.09.
“Second Priority Class Debt Parties”
has the meaning assigned to such term in Section 8.09.
“Second Priority Class Debt Representative”
has the meaning assigned to such term in Section 8.09.
“Second
Priority Collateral” means any “Collateral” as defined in any Second Lien Agreement Credit Document or any other
Second Priority Debt Document or any other assets of Holdings, the Borrower or any other Grantor with respect to which a Lien is granted
or purported to be granted pursuant to a Second Priority Collateral Document as security for any Second Priority Debt Obligation.
“Second
Priority Collateral Documents” means the “Security Documents” as defined in the Second Lien Agreement, the Second
Lien Intercreditor Agreement (upon and after the initial execution and delivery thereof by the initial parties thereto) and each of the
security agreements and other instruments and documents executed and delivered by Holdings, the Borrower or any other Grantor for purposes
of providing collateral security for any Second Priority Debt Obligation.
“Second
Priority Debt Documents” means (a) the Second Lien Agreement [Credit] Documents and (b) any Additional Second Priority Debt
Documents.
“Second
Priority Debt Facilities” means the Second Lien Agreement and any Additional Second Priority Debt Facilities.
“Second
Priority Debt Obligations” means the Second Lien Agreement Obligations and any Additional Second Priority Debt Obligations.
“Second
Priority Enforcement Date” means, with respect to any Second Priority Representative, the date that is 180 days (through which
180 day period such Second Priority Representative was the Major Second Priority Representative) after the occurrence of both (a) an Event
of Default (under and as defined in the Second Priority Debt Document for which such Second Priority Representative has been named as
Representative) and (b) the Designated Senior Priority Representative’s and each other Representative’s receipt of written
notice from such Second Priority Representative that (i) such Second Priority Representative is the Major Second Priority Representative
and that an Event of Default (under and as defined in the Second Priority Debt Document for which such Second Priority Representative
has been named as Representative) has occurred and is continuing and (ii) the Second Priority Debt Obligations of the series with respect
to which such Second Priority Representative is the Second Priority Representative are currently due and payable in full (whether as a
result of acceleration thereof or otherwise) in accordance with the terms of the applicable Second Priority Debt Document; provided that
the Second Priority Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred (1) at any time the
Designated Senior Priority Representative has commenced and is diligently pursuing any enforcement action with respect to any Shared Collateral
or (2) at any time any Grantor which has granted a security interest in any Shared Collateral is then a debtor under or with respect to
(or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Second
Priority Lien” means the Liens on the Second Priority Collateral in favor of Second Priority Secured Parties under the Second
Priority Collateral Documents.
“Second
Priority Representative” means (a) in the case of any Second Lien Obligations or the Second Lien Secured Parties, the Second
Lien Agent and (b) in the case of any Additional Second Priority Debt Facility and the Additional Second Priority Secured Parties thereunder,
the trustee, administrative agent, collateral agent, security agent or similar agent under such Additional Second Priority Debt Facility
that is named as the Representative in respect of such Additional Second Priority Debt Facility in the applicable Joinder Agreement.
“Second
Priority Secured Parties” means the Second Lien Secured Parties and any Additional Second Priority Secured Parties.
“Secured
Obligations” means the Senior Priority Obligations and the Second Priority Debt Obligations.
“Secured Parties” means the Senior
Priority Secured Parties and the Second Priority Secured Parties.
“Senior Lien” means
the Liens on the Senior Priority Collateral in favor of the Senior Priority Secured Parties under the Senior Priority Collateral Documents.
“Senior Priority Class Debt” has the
meaning assigned to such term in Section 8.09.
“Senior Priority Class Debt Parties”
has the meaning assigned to such term in Section 8.09.
“Senior Priority Class Debt Representative”
has the meaning assigned to such term in Section 8.09.
“Senior Priority
Collateral” means any “Collateral” as defined in any First Lien Credit Agreement Credit Document or any
other Senior Priority Debt Document or any other assets of Holdings, the Borrower or any other Grantor with respect to which a Lien
is granted or purported to be granted pursuant to a Senior Priority Collateral Document as security for any Senior Priority
Obligations.
“Senior
Priority Collateral Documents” means the “Security Documents” as defined in the First Lien Credit Agreement, the
First Lien Intercreditor Agreement (upon and after the initial execution and delivery thereof by the initial parties thereto) and each
of the security agreements and other instruments and documents executed and delivered by Holdings, the Borrower or any other Grantor for
purposes of providing collateral security for any Senior Priority Obligation.
“Senior
Priority Debt Documents” means (a) the First Lien Credit Agreement Credit Documents and (b) any Additional Senior Priority Debt
Documents.
“Senior
Priority Debt Facilities” means the First Lien Credit Agreement and any Additional Senior Priority Debt Facilities.
“Senior
Priority Obligations” means the First Lien Credit Agreement Obligations and any Additional Senior Priority Debt Obligations
(provided that the Senior Priority Obligations shall exclude any such obligations the Incurrence of which was not permitted under
each Second Priority Debt Document extant at the time of the Incurrence thereof).
“Senior
Priority Representative” means (a) in the case of any First Lien Credit Agreement Obligations or the First Lien Credit Agreement
Secured Parties, the First Lien Collateral Agent and (b) in the case of any Additional Senior Priority Debt Facility and the Additional
Senior Secured Parties thereunder, the trustee, administrative agent, collateral agent, security agent or similar agent under such Additional
Senior Priority Debt Facility that is named as the Representative in respect of such Additional Senior Priority Debt Facility in the applicable
Joinder Agreement.
“Senior
Priority Secured Parties” means the First Lien Credit Agreement Secured Parties and any Additional Senior Secured Parties.
“Shared
Collateral” means, at any time, Collateral in which the holders of Senior Priority Obligations under at least one Senior Priority
Debt Facility (or their Representatives) and the holders of Second Priority Debt Obligations under at least one Second Priority Debt Facility
(or their Representatives) hold a security interest at such time (or, in the case of the Senior Priority Debt Facilities, are deemed pursuant
to Article 2 to hold a security interest). If, at any time, any portion of the Senior Priority Collateral under one or more Senior Priority
Debt Facilities does not constitute Second Priority Collateral under one or more Second Priority Debt Facilities, then such portion of
such Senior Priority Collateral shall constitute Shared Collateral only with respect to the Second Priority Debt Facilities for which
it constitutes Second Priority Collateral and shall not constitute Shared Collateral for any Second Priority Debt Facility that does not
have a security interest in such Collateral at such time.
“Subsidiary”
of any Person shall mean and include (a) any corporation more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly through Subsidiaries and (b) any limited liability company,
partnership, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries has more
than a 50% equity interest at the time. Unless otherwise expressly provided, all references herein to a “Subsidiary”
shall mean a Subsidiary of the Borrower.
“Trademarks”
means all United States (a) trademarks, service marks, domain names, trade names, corporate names, company names, business names, fictitious
business names, trade styles, trade dress, logos, slogans, other source or business identifiers, now existing or hereafter adopted or
acquired, whether registered or unregistered, and all registrations, recordings and applications for registration filed in connection
with the foregoing, including registrations, recordings and applications for registration in the United States Patent and Trademark Office
or any similar offices in any State of the United States or any political subdivision thereof, and all common-law rights related thereto,
(b) all goodwill associated therewith or symbolized thereby and (c) all extensions or renewals thereof.
“UBS” has the meaning assigned to such
term in the introductory paragraph of this Agreement.
“Uniform
Commercial Code” or “UCC” means, unless otherwise specified, the Uniform Commercial Code as from time to
time in effect in the State of New York or the Uniform Commercial Code of another jurisdiction, to the extent it may be required to apply
to any item or items of collateral.
“Voting
Stock” means, with respect to any Person, shares of such Person’s Capital Stock that is at the time generally entitled,
without regard to contingencies, to vote in the election of the Board of Directors of such Person. To the extent that a partnership agreement,
limited liability company agreement or other agreement governing a partnership or limited liability company provides that the members
of the Board of Directors of such partnership or limited liability company (or, in the case of a limited partnership whose business and
affairs are managed or controlled by its general partner, the Board of Directors of the general partner of such limited partnership) is
appointed or designated by one or more Persons rather than by a vote of Voting Stock, each of the Persons who are entitled to appoint
or designate the members of such Board of Directors will be deemed to own a percentage of Voting Stock of such partnership or limited
liability company equal to (a) the aggregate votes entitled to be cast on such Board of Directors by the members of such Board of Directors
which such Person or Persons are entitled to appoint or designate divided by (b) the aggregate number of votes of all members of such
Board of Directors.
SECTION 1.02.
Terms Generally. The rules of construction and other interpretive terms set forth in Sections 1.2, 1.5, 1.6, 1.7, 1.8 and 1.11
of the First Lien Credit Agreement shall apply to this Agreement, including terms defined in the preamble and recitals to this Agreement.
ARTICLE 2
PRIORITIES
AND AGREEMENTS WITH RESPECT TO SHARED
COLLATERAL
SECTION
2.01. Subordination. Notwithstanding the date, time, manner or order of filing or recordation of any document or instrument
or grant, attachment or perfection of any Liens granted to any Second Priority Representative or any Second Priority Secured Parties
on the Shared Collateral or of any Liens granted to any Senior Priority Representative or any other Senior Priority Secured Party on
the Shared Collateral (or any actual or alleged defect in any of the foregoing) and notwithstanding any provision of the UCC, any
Applicable Law, any Second Priority Debt Document or any Senior Priority Debt Document or any other circumstance whatsoever, each
Second Priority Representative, on behalf of itself and each Second Priority Secured Party under its Second Priority Debt Facility,
hereby agrees that (a) any Lien on the
Shared Collateral securing any Senior Priority Obligations now or hereafter held by or on behalf of any Senior Priority
Representative or any other Senior Priority Secured Party or other agent or trustee therefor, regardless of how acquired, whether by
grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any
Lien on the Shared Collateral securing any Second Priority Debt Obligations and (b) any Lien on the Shared Collateral securing any
Second Priority Debt Obligations now or hereafter held by or on behalf of any Second Priority Representative, any Second Priority
Secured Parties or any other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law,
subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing any Senior
Priority Obligations. All Liens on the Shared Collateral securing any Senior Priority Obligations shall be and remain senior in all
respects and prior to all Liens on the Shared Collateral securing any Second Priority Debt Obligations for all purposes, whether or
not such Liens securing any Senior Priority Obligations are subordinated to any Lien securing any other obligation of the Borrower,
any Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
SECTION 2.02. Nature Of Senior
Lender Claims. Each Second Priority Representative, on behalf of itself and each Second Priority Secured Party under its Second Priority
Debt Facility, acknowledges that (a) a portion of the Senior Priority Obligations is revolving in nature and that the amount thereof that
may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, (b) the terms of the Senior
Priority Debt Documents and the Senior Priority Obligations may be amended, restated, amended and restated, supplemented or otherwise
modified, and the Senior Priority Obligations, or a portion thereof, may be Refinanced from time to time and (c) the aggregate amount
of the Senior Priority Obligations may be increased, in each case, without notice to or consent by the Second Priority Representatives
or the Second Priority Secured Parties and without affecting the provisions hereof, except as otherwise expressly set forth herein. The
Lien priorities provided for in Section 2.01 shall not be altered or otherwise affected by any amendment, restatement, amendment and restatement,
supplement or other modification, or any Refinancing, of either the Senior Priority Obligations or the Second Priority Debt Obligations,
or any portion thereof. As between Holdings, the Borrower and the other Grantors and the Second Priority Secured Parties, the foregoing
provisions will not limit or otherwise affect the obligations of Holdings, the Borrower and the other Grantors contained in any Second
Priority Debt Document with respect to the Incurrence of additional Senior Priority Obligations.
SECTION 2.03.
Prohibition On Contesting Liens. Each of the Second Priority Representatives, for itself and on behalf of each Second Priority
Secured Party under its Second Priority Debt Facility, agrees that it shall not (and hereby waives any right to) contest or support any
other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection,
priority or enforceability of any Lien securing, or the allowability of any claims asserted with respect to, any Senior Priority Obligations
held (or purported to be held) by or on behalf of any Senior Priority Representative or any of the other Senior Priority Secured Parties
or other agent or trustee therefor in any Senior Priority Collateral, and each Senior Priority Representative, for itself and on behalf
of each Senior Priority Secured Party under its Senior Priority Debt Facility, agrees that it shall not (and hereby waives any right to)
contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity,
extent, perfection, priority or enforceability of any Lien securing, or the allowability of any claims asserted with respect to, any Second
Priority Debt Obligations held (or purported to be held) by or on behalf of any of any Second Priority Representative or any of the Second
Priority Secured Parties in the Second Priority Collateral. Notwithstanding the foregoing, no provision in this Agreement shall be construed
to prevent or impair the rights of any Senior Priority Representative to enforce this Agreement (including the priority of the Liens securing
the Senior Priority Obligations as provided in Section 2.01) or any of the Senior Priority Debt Documents.
SECTION
2.04. No New Liens. The parties hereto agree that, so long as the Discharge of Senior Priority
Obligations has not occurred, (a) none of the Grantors shall grant any additional Liens on any asset or property of any Grantor to
secure any Second Priority Debt Obligation unless it has granted, or concurrently therewith grants, a Lien on such asset or property
of such Grantor to secure the Senior Priority Obligations; and (b) if any Second Priority Representative or any Second Priority
Secured Party shall hold any Lien on any assets or property of any Grantor securing any Second Priority Debt Obligations that are
not also subject to the Liens securing all Senior Priority Obligations under the Senior Priority Collateral Documents, such Second
Priority Representative or Second Priority Secured Party (i) shall notify the Designated Senior Priority Representative promptly
upon becoming aware thereof and, unless such Grantor shall promptly grant a similar Lien on such assets or property to each Senior
Priority Representative as security for the Senior Priority Obligations, shall assign such Lien to the Designated Senior Priority
Representative as security for all Senior Priority Obligations for the benefit of the Senior Priority Secured Parties (but may
retain a junior Lien on such assets or property subject to the terms hereof) and (ii) until such assignment or such grant of a
similar Lien to each Senior Priority Representative, shall be deemed to hold and have held such Lien for the benefit of each Senior
Priority Representative and the other Senior Priority Secured Parties as security for the Senior Priority Obligations.
SECTION 2.05.
Perfection Of Liens. Except for the limited agreements of the Senior Priority Representatives pursuant to Section 5.05 hereof,
none of the Senior Priority Representatives or the Senior Priority Secured Parties shall be responsible for perfecting and maintaining
the perfection of Liens with respect to the Shared Collateral for the benefit of the Second Priority Representatives or the Second Priority
Secured Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Senior Priority
Secured Parties and the Second Priority Secured Parties and shall not impose on the Senior Priority Representatives, the Senior Priority
Secured Parties, the Second Priority Representatives, the Second Priority Secured Parties or any agent or trustee therefor any obligations
in respect of the disposition of proceeds of any Shared Collateral which would conflict with prior perfected claims therein in favor of
any other Person or any order or decree of any court or governmental authority or any applicable law.
SECTION 2.06.
Certain Cash Collateral. Notwithstanding anything in this Agreement or any other Senior Priority Debt Documents or Second Priority
Debt Documents to the contrary, collateral consisting of cash and deposit account balances pledged to secure First Lien Credit Agreement
Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the First Lien Collateral Agent
pursuant to Section 3.8 of the First Lien Credit Agreement (or any equivalent successor provision) shall be applied as specified in the
First Lien Credit Agreement and will not constitute Shared Collateral.
ARTICLE 3 ENFORCEMENT
SECTION 3.01. Exercise Of Remedies.
(a) So
long as the Discharge of Senior Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has
been commenced by or against the Borrower or any other Grantor, (i) neither any Second Priority Representative nor any Second
Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared
Collateral in respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or
remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or other action brought
with respect to the Shared Collateral or any other Senior Priority Collateral by any Senior Priority Representative or any Senior
Priority Secured Party in respect of the Senior Priority Obligations, the exercise of any right by any Senior Priority
Representative or any Senior Priority Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Priority
Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or
arrangement to which any Senior Priority Representative or any Senior Priority Secured Party either is a party or may have rights as
a third party beneficiary, or any other exercise by any such party of any rights and remedies relating to the Shared Collateral
under the Senior Priority Debt Documents or otherwise in respect of the Senior Priority Collateral or the Senior Priority
Obligations, or (z) object to
the forbearance by the Senior Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other
exercise of any rights or remedies relating to the Shared Collateral in respect of Senior Priority Obligations and (ii) except as
otherwise provided herein, the Senior Priority Representatives and the Senior Priority Secured Parties shall have the exclusive
right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations
regarding the release, disposition or restrictions with respect to the Shared Collateral or any other Senior Priority Collateral
without any consultation with or the consent of any Second Priority Representative or any Second Priority Secured Party; provided, however,
that (A) in any Insolvency or Liquidation Proceeding commenced by or against Holdings, the Borrower or any other Grantor, any Second
Priority Representative may file a claim or statement of interest with respect to the Second Priority Debt Obligations under its
Second Priority Debt Facility, (B) any Second Priority Representative may take any action (not adverse to the prior Liens on the
Shared Collateral securing the Senior Priority Obligations or the rights of the Senior Priority Representatives or the Senior
Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not
enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, (C) any Second Priority Representative
and the Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04,
(D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03, (E) any Second Priority
Representative and the Second Priority Secured Parties may file any necessary or appropriate responsive or defensive pleadings in
opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the
disallowance of the claims or Liens of the Second Priority Secured Parties, including any claims secured by the Second Priority
Collateral, in each case in accordance with the terms of this Agreement and (F) from and after the Second Priority Enforcement Date,
the Major Second Priority Representative (or such other Person, if any, as is so authorized under the Second Lien Intercreditor
Agreement) may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in
respect of any Second Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies
(including any action of foreclosure), but only so long as (1) the Designated Senior Priority Representative has not commenced and
is not diligently pursuing any enforcement action with respect to such Shared Collateral or (2) any Grantor which has granted a
security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to ) any Insolvency
or Liquidation Proceeding. In exercising rights and remedies with respect to the Senior Priority Collateral, the Senior Priority
Representatives and the Senior Priority Secured Parties may enforce the provisions of the Senior Priority Debt Documents and
exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion.
Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Shared
Collateral upon foreclosure, to incur expenses in connection with such sale or disposition and to exercise all the rights and
remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under
Bankruptcy Laws of any applicable jurisdiction.
(b) So
long as the Discharge of Senior Priority Obligations has not occurred, each Second Priority Representative, on behalf of itself and
each Second Priority Secured Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as
secured creditor, take or receive any Shared Collateral or any proceeds of Shared Collateral in connection with the exercise of any
right or remedy (including setoff) with respect to any Shared Collateral in respect of Second Priority Debt Obligations. Without
limiting the generality of the foregoing, unless and until the Discharge of Senior Priority Obligations has occurred, except as
expressly provided in the proviso in clause (ii) of Section 3.01(a), the sole right of the Second Priority Representatives and the
Second Priority Secured Parties with respect to the Shared Collateral is to hold a Lien on the Shared Collateral in respect of
Second Priority Debt Obligations pursuant to the Second Priority Debt Documents for the period and to the extent granted therein and
to receive a share of the proceeds thereof, if any, after the Discharge of Senior Priority Obligations has occurred.
(c)
Subject to the proviso in clause (ii) of Section 3.01(a), (i) each Second Priority Representative, for itself and on behalf of
each Second Priority Secured Party under its Second Priority Debt Facility, agrees that neither such Second Priority Representative nor
any such Second Priority Secured Party will take any action that would hinder any exercise of remedies undertaken by any Senior Priority
Representative or any Senior Priority Secured Party with respect to the Shared Collateral under the Senior Priority Debt Documents, including
any Disposition of the Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second Priority Representative, for itself
and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby waives any and all rights it or any
such Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Senior Priority
Representatives or the Senior Priority Secured Parties seek to enforce or collect the Senior Priority Obligations or the Liens granted
on any of the Senior Priority Collateral, regardless of whether any action or failure to act by or on behalf of any Senior Priority Representative
or any other Senior Priority Secured Party is adverse to the interests of the Second Priority Secured Parties.
(d)
Each Second Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any
Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Senior Priority Representatives or
the Senior Priority Secured Parties with respect to the Senior Priority Collateral as set forth in this Agreement and the Senior Priority
Debt Documents.
(e)
Subject to the proviso in Section 3.01(a), until the Discharge of Senior Priority Obligations, the Designated Senior Priority Representative
or any Person authorized by it shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and
shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any
proceeding with respect thereto. Following the Discharge of Senior Priority Obligations, the Designated Second Priority Representative
or any Person authorized by it shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the
Designated Second Priority Representative or any Person Authorized by it shall have the exclusive right to direct the time, method and
place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Priority Secured Parties
with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives,
or for the taking of any other action authorized by the Second Priority Collateral Documents; provided, however, that nothing
in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second
Priority Secured Parties to take such actions with respect to the Collateral after the Discharge of Senior Priority Obligations as may
be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Secured Parties or the Second
Priority Debt Obligations.
SECTION 3.02.
Cooperation. Subject to the proviso in clause (ii) of Section 3.01(a), each Second Priority Representative, on behalf of itself
and each Second Priority Secured Party under its Second Priority Debt Facility, agrees that, unless and until the Discharge of Senior
Priority Obligations has occurred, it will not commence, or join with any Person (other than the Senior Priority Secured Parties and the
Senior Priority Representatives upon the request of the Designated Senior Priority Representative) in commencing, any enforcement, collection,
execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Shared Collateral under any of the Second
Priority Debt Documents or otherwise in respect of the Second Priority Debt Obligations.
SECTION 3.03.
Actions Upon Breach. Should any Second Priority Representative or any Second Priority Secured Party, contrary to this Agreement,
in any way take, attempt to take or threaten to take any action with respect to the Shared Collateral (including any attempt to realize
upon or enforce any remedy with respect to this Agreement) or fail to take any action required by this Agreement, any Senior Priority
Representative or other Senior Priority Secured Party (in its or their own name or in the name of the Borrower or any other Grantor) or
the Borrower may obtain relief against such Second Priority Representative or such Second Priority Secured Party by injunction, specific
performance or other appropriate equitable relief. Each Second Priority Representative, on behalf of itself and each Second Priority Secured
Party under its Second Priority Facility, hereby (a) agrees that the Senior Priority Secured Parties’ damages from the actions of
the Second Priority Representatives or any Second Priority Secured Party may at that time be difficult to ascertain and may be irreparable
and waives any defense that Holdings, the Borrower, any other Grantor or the Senior Priority Secured Parties cannot demonstrate damage
or be made whole by the awarding of damages and (b) irrevocably waives any defense based on the adequacy of a remedy at law and any other
defense that might be asserted to bar the remedy of specific performance in any action that may be brought by any Senior Priority Representative
or any other Senior Priority Secured Party.
ARTICLE 4 PAYMENTS
SECTION 4.01.
Application Of Proceeds. So long as the Discharge of Senior Priority Obligations has not occurred and regardless of whether an
Insolvency or Liquidation Proceeding has been commenced, the Shared Collateral or proceeds thereof received in connection with the sale
or other disposition of, or collection on, such Shared Collateral upon the exercise of remedies shall be applied by the Designated Senior
Priority Representative to the Senior Priority Obligations in such order as specified in the relevant Senior Priority Debt Documents and,
if applicable, the First Lien Intercreditor Agreement, until the Discharge of Senior Priority Obligations has occurred. Upon the Discharge
of Senior Priority Obligations, each applicable Senior Priority Representative shall deliver promptly to the Designated Second Priority
Representative any Shared Collateral or proceeds thereof held by it in the same form as received, with any necessary endorsements, or
as a court of competent jurisdiction may otherwise direct, to be applied by the Designated Second Priority Representative to the Second
Priority Debt Obligations in such order as specified in the relevant Second Priority Debt Documents and, if applicable, the Second Lien
Intercreditor Agreement.
SECTION 4.02.
Payments Over. So long as the Discharge of Senior Priority Obligations has not occurred, any Shared Collateral or proceeds thereof
received by any Second Priority Representative or any Second Priority Secured Party in connection with the exercise of any right or remedy
(including setoff) relating to the Shared Collateral shall be segregated and held in trust for the benefit of and forthwith paid over
to the Designated Senior Priority Representative for the benefit of the Senior Priority Secured Parties in the same form as received,
with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. The Designated Senior Priority Representative
is hereby authorized to make any such endorsements as agent for each of the Second Priority Representatives or any such Second Priority
Secured Party. This authorization is coupled with an interest and is irrevocable.
ARTICLE 5
OTHER
AGREEMENTS
SECTION 5.01. Releases.
(a) Each
Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt
Facility, agrees that, if in connection with (i) a Disposition of any specified item of Shared Collateral (including all or
substantially all of the Capital Stock of any Subsidiary of the Borrower) (other than in connection with the exercise of remedies
with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the Second Priority Debt
Documents or (ii) the exercise of any remedies with respect to the Shared Collateral by any Senior Priority Secured Parties, the
Liens granted to the Second Priority Representatives and the Second Priority Secured Parties upon such Shared Collateral (but not on
the Proceeds thereof) to secure Second Priority Debt Obligations shall terminate and be released, automatically and without any
further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior
Priority Obligations. Upon delivery to a Second Priority Representative of an Officer’s Certificate stating that any such
termination and release of Liens securing the Senior Priority Obligations has become effective (or shall become effective
concurrently with such termination and release of the Liens granted to the Second Priority Secured Parties and the Second Priority
Representatives) and any necessary or proper instruments of termination or release prepared by Holdings, the Borrower or any other
Grantor, such Second Priority Representative will promptly execute, deliver or acknowledge, at Holdings’, the Borrower’s
or the other Grantor’s sole cost and expense and without any representation or warranty, such instruments to evidence such
termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Second Priority
Representative, for itself and on behalf of the Second Priority Secured Parties under its Second Priority Debt Facility, to release
the Liens on the Second Priority Collateral as set forth in the relevant Second Priority Debt Documents.
(b)
Each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt
Facility, hereby irrevocably constitutes and appoints the Designated Senior Priority Representative and any officer or agent of the Designated
Senior Priority Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of such Second Priority Representative or such Second Priority Secured Party or in the Designated Senior
Priority Representative’s own name, from time to time in the Designated Senior Priority Representative’s discretion, for the
purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements
or other instruments of transfer or release.
(c)
Unless and until the Discharge of Senior Priority Obligations has occurred, each Second Priority Representative, for itself and
on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby consents to the application, whether prior
to or after an event of default under any Senior Priority Debt Document of proceeds of Shared Collateral to the repayment of Senior Priority
Obligations pursuant to the Senior Priority Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to
prevent or impair the rights of the Second Priority Representatives or the Second Priority Secured Parties to receive proceeds in connection
with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding
anything to the contrary in any Second Priority Collateral Document, in the event the terms of a Senior Priority Collateral Document
and a Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral,
(ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to
register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or
the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar
capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect
of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such
item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee
or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any
item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to
leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of
Shared Collateral in favor of, in any case, both the Designated Senior Priority Representative and any Second Priority
Representative or Second Priority Secured Party, such Grantor may, until the applicable Discharge of Senior Priority Obligations has
occurred, comply with such requirement under the Second Priority Collateral Document as it relates to such Shared Collateral by
taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Priority Representative.
SECTION 5.02.
Insurance And Condemnation Awards. Unless and until the Discharge of Senior Priority Obligations has occurred, the Designated Senior
Priority Representative and the Senior Priority Secured Parties shall have the sole and exclusive right, subject in each case to the rights
of the Grantors under the Senior Priority Debt Documents, (a) to adjust settlement for any insurance policy covering the Shared Collateral
in the event of any loss thereunder and (b) to approve any award granted in any condemnation or similar proceeding affecting the Shared
Collateral. Unless and until the Discharge of Senior Priority Obligations has occurred, and subject to the rights of the Grantors under
the Senior Priority Debt Documents, all proceeds of any such policy and any such award, if in respect of the Shared Collateral, shall
be paid (i) first, prior to the occurrence of the Discharge of Senior Priority Obligations, to the Designated Senior Priority Representative
for the benefit of Senior Priority Secured Parties pursuant to the terms of the Senior Priority Debt Documents, (ii) second, after the
occurrence of the Discharge of Senior Priority Obligations, to the Designated Second Priority Representative for the benefit of the Second
Priority Secured Parties pursuant to the terms of the applicable Second Priority Debt Documents and (iii) third, if no Second Priority
Debt Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of
competent jurisdiction may otherwise direct. If any Second Priority Representative or any Second Priority Secured Party shall, at any
time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds
over to the Designated Senior Priority Representative in accordance with the terms of Section 4.02.
SECTION 5.03. Certain Amendments.
(a)
No Second Priority Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment,
supplement or modification, or the terms of any new Second Priority Collateral Document, would be prohibited by or inconsistent with any
of the terms of this Agreement. The Borrower agrees to deliver to the Designated Senior Priority Representative copies of (i) any amendments,
supplements or other modifications to the Second Priority Collateral Documents and (ii) any new Second Priority Collateral Documents promptly
after effectiveness thereof. Each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under
its Second Priority Debt Facility, agrees that each Second Priority Collateral Document under its Second Priority Debt Facility shall
include the following language (or language to similar effect reasonably approved by the Designated Senior Priority Representative):
“Notwithstanding
anything herein to the contrary, (i) the liens and security interests granted to the [Second Priority Representative] pursuant to
this Agreement are expressly subject and subordinate to the liens and security interests granted in favor of the Senior Priority
Secured Parties (as defined in the Intercreditor Agreement referred to below), including liens and security interests granted to UBS
AG, STAMFORD BRANCH, as collateral agent, pursuant to or in connection with the Credit Agreement dated as of August 4, 2017 (as
amended, restated, amended and restated, supplemented or otherwise modified from time to time), among Holdings, the Borrower, the
lenders from time to time party thereto and UBS AG, STAMFORD BRANCH, as administrative agent and collateral agent, and the other
parties thereto, and (ii) the exercise of any right or remedy by the [Second Priority Representative] or any other secured party
hereunder is subject to the limitations and provisions of the Junior Priority Intercreditor Agreement, dated as of [ ] (as amended,
restated, supplemented or otherwise modified from time to time, the “Junior Priority Intercreditor Agreement”),
among UBS AG, STAMFORD BRANCH, as First Lien Collateral Agent, [ ], as Second Lien Agent, Holdings, the Borrower and certain of its
affiliated entities party thereto. In the event of any conflict between the terms of the Junior Priority Intercreditor Agreement and
the terms of this Agreement, the terms of the Junior Priority Intercreditor Agreement shall govern.”
(b)
In the event that each applicable Senior Priority Representative and/or the Senior Priority Secured Parties enter into any amendment,
waiver or consent in respect of any of the Senior Priority Collateral Documents for the purpose of adding to or deleting from, or waiving
or consenting to any departures from any provisions of, any Senior Priority Collateral Document or changing in any manner the rights of
the Senior Priority Representatives, the Senior Priority Secured Parties, Holdings, the Borrower or any other Grantor thereunder (including
the release of any Liens in Senior Priority Collateral) in a manner that is applicable to all Senior Priority Debt Facilities, then such
amendment, waiver or consent shall apply automatically to any comparable provision of each comparable Second Priority Collateral Document
without the consent of any Second Priority Representative or any Second Priority Secured Party and without any action by any Second Priority
Representative, Holdings, the Borrower or any other Grantor; provided, however, that (x) no such amendment, waiver or consent
shall have the effect (i) of removing assets subject to the Lien of any Second Priority Collateral Document, except to the extent that
a release of such Lien is provided for in Section 5.01(a), (ii) imposing duties that are materially adverse on any Second Priority Representative
without its consent or (iii) altering the terms of the Second Priority Collateral Documents to permit other Liens on the Collateral not
permitted under the terms of the Second Priority Debt Documents as in effect on the date hereof or Article VI hereof and (y) written notice
of such amendment, waiver or consent shall have been given to each Second Priority Representative within 10 Business Days after the effectiveness
of such amendment, waiver or consent.
(c)
The Senior Priority Debt Documents may be amended, restated, amended and restated, waived, supplemented or otherwise modified in
accordance with their terms, and the indebtedness under the Senior Priority Debt Documents may be Refinanced, in each case, without the
consent of any Second Priority Representative or Second Priority Secured Party; provided, however, that, without the consent
of the Second Lien Agent, acting with the consent of the [Required Lenders] (as such term is defined in the Second Lien Agreement) and
each other Second Priority Representative (acting with the consent of the requisite holders of each series of Additional Second Priority
Debt), no such amendment, restatement, amendment and restatement, waiver, supplement or modification (including self-effecting or other
modifications pursuant to Section 2.14 or Section 2.15 of the First Lien Credit Agreement) shall contravene any provision of this Agreement.
(d)
The Second Priority Debt Documents may be amended, restated, waived, supplemented or otherwise modified in accordance with their
terms, and the indebtedness under the Second Priority Debt Documents may be Refinanced, in each case, without the consent of any Senior
Priority Representative or Senior Priority Secured Party; provided, however, that, without the consent of the First Lien
Collateral Agent, acting with the consent of the Required Lenders (as such term is defined in the First Lien Credit Agreement) and each
other Senior Priority Representative (acting with the consent of the requisite holders of each series of Additional Senior Priority Debt),
no such amendment, restatement, supplement or modification (including self-effecting or other modifications pursuant to Section [ ]
of the Second Lien Agreement) shall contravene any provision of this Agreement.
SECTION 5.04.
Rights As Unsecured Creditors. Notwithstanding anything to the contrary in this Agreement, the Second Priority Representatives
and the Second Priority Secured Parties may exercise rights and remedies as unsecured creditors against Holdings, the Borrower and any
other Grantor in accordance with the terms of the Second Priority Debt Documents and Applicable Law so long as such rights and remedies
do not violate any express provision of this Agreement. Nothing in this Agreement shall prohibit the receipt by any Second Priority Representative
or any Second Priority Secured Party of the required payments of principal, premium, interest, fees and other amounts due under the Second
Priority Debt Documents so long as such receipt is not the direct or indirect result of the exercise by a Second Priority Representative
or any Second Priority Secured Party of rights or remedies as a secured creditor in respect of Shared Collateral. In the event any Second
Priority Representative or any Second Priority Secured Party becomes a judgment Lien creditor in respect of Shared Collateral as a result
of its enforcement of its rights as an unsecured creditor in respect of Second Priority Debt Obligations, such judgment Lien shall be
subordinated to the Liens securing Senior Priority Obligations on the same basis as the other Liens securing the Second Priority Debt
Obligations are so subordinated to such Liens securing Senior Priority Obligations under this Agreement. Nothing in this Agreement shall
impair or otherwise adversely affect any rights or remedies the Senior Priority Representatives or the Senior Priority Secured Parties
may have with respect to the Senior Priority Collateral.
SECTION 5.05. Gratuitous Bailee For Perfection.
(a)
Each Senior Priority Representative acknowledges and agrees that if it shall at any time hold a Lien securing any Senior Priority
Obligations on any Shared Collateral that can be perfected by the possession or control of such Shared Collateral or of any account in
which such Shared Collateral is held, and if such Shared Collateral or any such account is in fact in the possession or under the control
of such Senior Priority Representative, or of agents or bailees of such Person (such Shared Collateral being referred to herein as the
“Pledged or Controlled Collateral”), or if it shall any time obtain any landlord waiver or bailee’s letter or
any similar agreement or arrangement granting it rights or access to Shared Collateral, the applicable Senior Priority Representative
shall also hold such Pledged or Controlled Collateral, or take such actions with respect to such landlord waiver, bailee’s letter
or similar agreement or arrangement, as sub-agent or gratuitous bailee for the relevant Second Priority Representatives, in each case
solely for the purpose of perfecting the Liens granted under the relevant Second Priority Collateral Documents and subject to the terms
and conditions of this Section 5.05.
(b)
In the event that any Senior Priority Representative (or its agents or bailees) has Lien filings against Intellectual Property
that are part of the Shared Collateral that are necessary for the perfection of Liens in such Shared Collateral, such Senior Priority
Representative agrees to hold such Liens as sub-agent and gratuitous bailee for the relevant Second Priority Representatives and any assignee
thereof, solely for the purpose of perfecting the security interest granted in such Liens pursuant to the relevant Second Priority Collateral
Documents, subject to the terms and conditions of this Section 5.05.
(c)
Except as otherwise specifically provided herein, until the Discharge of Senior Priority Obligations has occurred, the Senior Priority
Representatives and the Senior Priority Secured Parties shall be entitled to deal with the Pledged or Controlled Collateral in accordance
with the terms of the Senior Priority Debt Documents as if the Liens under the Second Priority Collateral Documents did not exist. The
rights of the Second Priority Representatives and the Second Priority Secured Parties with respect to the Pledged or Controlled Collateral
shall at all times be subject to the terms of this Agreement.
(d) The
Senior Priority Representatives and the Senior Priority Secured Parties shall have no obligation whatsoever to the Second Priority
Representatives or any Second Priority Secured Party to assure that any of the Pledged or Controlled Collateral is genuine or owned
by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Shared Collateral, except
as expressly set forth in this Section 5.05. The duties or responsibilities of the Senior Priority Representatives under this
Section 5.05 shall be limited solely to holding or controlling the Shared Collateral and the related Liens referred to in paragraphs
(a) and (b) of this Section 5.05 as sub-agent and gratuitous bailee for the relevant Second Priority Representative for purposes of
perfecting the Lien held by such Second Priority Representative.
(e) The Senior Priority Representatives shall not have by reason of the Second Priority Collateral Documents or this Agreement, or
any other document, a fiduciary relationship in respect of any Second Priority Representative or any Second Priority Secured Party, and
each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility,
hereby waives and releases the Senior Priority Representatives from all claims and liabilities arising pursuant to the Senior Priority
Representatives’ roles under this Section 5.05 as sub- agents and gratuitous bailees with respect to the Shared Collateral.
(f) Upon the Discharge of the Senior Priority Obligations, each applicable Senior Priority Representative shall, at the Grantors’
sole cost and expense, (i) (A) deliver to the Designated Second Priority Representative, to the extent that it is legally permitted to
do so, all Shared Collateral, including all proceeds thereof, held or controlled by such Senior Priority Representative or any of its
agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together
with any necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign
its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to
Shared Collateral, or (B) direct and deliver such Shared Collateral as a court of competent jurisdiction may otherwise direct, (ii) notify
any applicable insurance carrier that it is no longer entitled to be an additional loss payee or additional insured under the insurance
policies of any Grantor issued by such insurance carrier and (iii) notify any Governmental Authority involved in any condemnation or similar
proceeding involving any Grantor that the Designated Second Priority Representative is entitled to approve any awards granted in such
proceeding. Holdings, the Borrower and the other Grantors shall take such further action as is required to effectuate the transfer contemplated
hereby. The Senior Priority Representatives have no obligations to follow instructions from any Second Priority Representative or any
other Second Priority Secured Party in contravention of this Agreement.
(g) None of the Senior Priority Representatives nor any of the other Senior Priority Secured Parties shall be required to marshal any
present or future collateral security for any obligations of Holdings, the Borrower or any Subsidiary to any Senior Priority Representative
or any Senior Priority Secured Party under the Senior Priority Debt Documents or any assurance of payment in respect thereof, or to resort
to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral
security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing or arising.
SECTION
5.06. When Discharge Of Senior Priority Obligations Deemed To Not Have Occurred. If, at any time substantially concurrently
with or after the Discharge of Senior Priority Obligations has occurred, Holdings, the Borrower or any Subsidiary Incurs any Senior
Priority Obligations (other than in respect of the payment of indemnities surviving the Discharge of Senior Priority Obligations),
then such Discharge of Senior Priority Obligations shall automatically be deemed not to have occurred for all purposes of this
Agreement (other than with respect to any actions taken prior to the date of such designation as a result of the occurrence of such
first Discharge of Senior Priority Obligations) and the applicable agreement governing such Senior Priority Obligations shall
automatically be treated as a Senior Priority Debt Document for all purposes of this Agreement, including for purposes of the Lien
priorities and rights in respect of Shared Collateral set forth herein and the agent, representative or trustee for the holders of
such Senior Priority Obligations shall be the Senior Priority Representative for all purposes of this Agreement. Upon receipt of
notice of such incurrence (including the identity of the new Senior Priority Representative), each Second Priority Representative
(including the Designated Second Priority Representative) shall promptly (a) enter into such documents and agreements (at the
expense of the Borrower), including amendments, supplements or modifications to this Agreement, as the Borrower or such new Senior
Priority Representative shall reasonably request in writing in order to provide the new Senior Priority Representative the rights of
a Senior Priority Representative contemplated hereby, (b) deliver to such Senior Priority Representative, to the extent that it is
legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by such Second Priority
Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or
Controlled Collateral, together with any necessary endorsements and notices to depositary banks, securities intermediaries and
commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or
arrangement granting it rights or access to Shared Collateral, (c) notify any applicable insurance carrier that it is no longer
entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and
(d) notify any Governmental Authority involved in any condemnation or similar proceeding involving a Grantor that the new Senior
Priority Representative is entitled to approve any awards granted in such proceeding.
ARTICLE 6
INSOLVENCY
OR LIQUIDATION
PROCEEDINGS
SECTION
6.01. Financing Issues. Until the Discharge of Senior Priority Obligations has occurred, if Holdings, the Borrower or any
other Grantor shall be subject to any Insolvency or Liquidation Proceeding, then each Second Priority Representative, for itself and
on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that (A) if any Senior Priority
Representative or any Senior Priority Secured Party shall desire to consent (or not object) to the sale, use or lease of cash or
other collateral or to consent (or not object) to Holdings’, the Borrower’s or any other Grantor’s obtaining
financing under Section 363 or Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law
(“DIP Financing”), it will raise no objection to and will not otherwise contest such sale, use or lease of such
cash or other collateral or such DIP Financing and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a)
and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens
securing any Senior Priority Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing,
will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing
(and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so
subordinated to Liens securing Senior Priority Obligations under this Agreement, (y) any adequate protection Liens provided to the
Senior Priority Secured Parties and (z) “carve-out” for professional and United States Trustee fees agreed to by the
Senior Priority Representatives, (B) it will raise no objection to (and will not otherwise contest) any motion for relief from the
automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Priority Obligations made by any
Senior Priority Representative or any other Senior Priority Secured Party, (C) it will raise no objection to (and will not otherwise
contest) any lawful exercise by any Senior Priority Secured Party of the right to credit bid Senior Priority Obligations at any sale
in foreclosure of Senior Priority Collateral (including pursuant to Section 363(k) of the Bankruptcy Code or any similar provision
under any other applicable Bankruptcy Law) or to exercise any rights under Section 1111(b) of the Bankruptcy Code with respect to
the Senior Priority Collateral, (D) it will raise no objection to (and will not otherwise contest) any other request for judicial
relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Lien on Senior Priority
Collateral and (E) it will raise no objection to (and will not otherwise contest or oppose) any Disposition (including pursuant to
Section 363 of the Bankruptcy Code) of assets of any Grantor for which any Senior Priority Representative has consented that
provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the Senior Priority Obligations
and the Second Priority Debt Obligations will attach to the Proceeds of the sale on the same basis of priority as the Liens on the
Shared Collateral securing the Senior Priority Obligations rank to the Liens on the Shared Collateral securing the Second Priority
Debt Obligations pursuant to this Agreement. Each Second Priority Representative, for itself and on behalf of each Second Priority
Secured Party under its Second Priority Debt Facility, agrees that notice received three Business Days prior to the entry of an
order approving such usage of cash or other collateral or approving such financing shall be adequate notice.
SECTION 6.02.
Relief From The Automatic Stay. Until the Discharge of Senior Priority Obligations has occurred, each Second Priority Representative,
for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that none of them shall
seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding or take any action in derogation thereof,
in each case in respect of any Shared Collateral, without the prior written consent of the Designated Senior Priority Representative.
SECTION 6.03.
Adequate Protection. Each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under
its Second Priority Debt Facility, agrees that none of them shall object, contest or support any other Person objecting to or contesting
(a) any request by any Senior Priority Representative or any Senior Priority Secured Parties for adequate protection, (b) any objection
by any Senior Priority Representative or any Senior Priority Secured Parties to any motion, relief, action or proceeding based on any
Senior Priority Representative’s or Senior Priority Secured Party’s claiming a lack of adequate protection or (c) the payment
of interest, fees, expenses or other amounts of any Senior Priority Representative or any other Senior Priority Secured Party under Section
506(b) or 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. Notwithstanding anything contained in this
Section 6.03 or in Section 6.01, in any Insolvency or Liquidation Proceeding, (i) if the Senior Priority Secured Parties (or any subset
thereof) are granted adequate protection in the form of a Lien on additional collateral or superpriority claims in connection with any
DIP Financing or use of cash collateral under Section 363 or 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy
Law, then each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority
Debt Facility, may seek or request adequate protection in the form of a replacement Lien or superpriority claim on such additional collateral,
which Lien or superpriority claim is subordinated to the Liens securing or providing adequate protection for all Senior Priority Obligations
and such DIP Financing (and all obligations relating thereto) on the same basis as the other Liens securing the Second Priority Debt Obligations
are so subordinated to the Liens securing Senior Priority Obligations under this Agreement and (ii) in the event any Second Priority Representatives,
for themselves and on behalf of the Second Priority Secured Parties under their Second Priority Debt Facilities, seek or request adequate
protection and such adequate protection is granted in the form of a Lien on additional collateral, then such Second Priority Representatives,
for themselves and on behalf of each Second Priority Secured Party under their Second Priority Debt Facilities, agree that each Senior
Priority Representative shall also be granted a senior Lien on such additional collateral as security or adequate protection for the Senior
Priority Obligations and any such DIP Financing and that any Lien on such additional collateral securing or providing adequate protection
for the Second Priority Debt Obligations shall be subordinated to the Liens on such collateral securing the Senior Priority Obligations
and any such DIP Financing (and all obligations relating thereto) and any other Liens granted to the Senior Priority Secured Parties as
adequate protection on the same basis as the other Liens securing the Second Priority Debt Obligations are so subordinated to such Liens
securing Senior Priority Obligations under this Agreement.
SECTION
6.04. Preference Issues. If any Senior Priority Secured Party is required in any Insolvency or Liquidation Proceeding or
otherwise to disgorge, turn over or otherwise pay any amount to the estate of Holdings, the Borrower or any other Grantor (or any
trustee, receiver or similar Person therefor), because the payment of such amount was declared to be or avoided as fraudulent or
preferential in any respect or for any other reason (any such amount, a “Recovery”), whether received as Proceeds
of security, enforcement of any right of setoff or otherwise, then the Senior Priority Obligations shall be reinstated to the extent
of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior Priority Secured Parties shall be
entitled to the benefits of this Agreement until a Discharge of Senior Priority Obligations with respect to all such recovered
amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and
effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties
hereto. Each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second
Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or
otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it
being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and
turned over for application in accordance with the priorities set forth in this Agreement. Without limiting the generality of the
foregoing, to the extent that Senior Priority Secured Parties are granted adequate protection in the form of payments in the amount
of current post-petition fees and expenses, and/or other cash payments, then the Second Priority Representatives, for themselves and
on behalf of the Second Priority Secured Parties under the Second Priority Debt Facilities, shall not be prohibited from seeking
adequate protection in the form of payments in the amount of current post- petition incurred fees and expenses, and/or other cash
payments (as applicable), subject to the right of the Senior Priority Secured Parties to object to the reasonableness of the amounts
of fees and expenses or other cash payments so sought by the Second Priority Secured Parties.
SECTION 6.05.
Separate Grants Of Security And Separate Classifications. Each Second Priority Representative, for itself and on behalf of each
Second Priority Secured Party under its Second Priority Debt Facility, acknowledges and agrees that (a) the grants of Liens pursuant to
the Senior Priority Collateral Documents and the Second Priority Collateral Documents constitute separate and distinct grants of Liens
and (b) because of, among other things, their differing rights in the Shared Collateral, the Second Priority Debt Obligations are fundamentally
different from the Senior Priority Obligations and must be separately classified in any plan of reorganization or similar dispositive
restructuring plan proposed, confirmed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the
parties as provided in the immediately preceding sentence, if it is held that any claims of the Senior Priority Secured Parties and the
Second Priority Secured Parties in respect of the Shared Collateral constitute a single class of claims (rather than separate classes
of senior and junior secured claims), then each Second Priority Representative, for itself and on behalf of each Second Priority Secured
Party under its Second Priority Debt Facility, hereby acknowledges and agrees that all distributions shall be made as if there were separate
classes of senior and junior secured claims against the Grantors in respect of the Shared Collateral (with the effect being that, to the
extent that the aggregate value of the Shared Collateral is sufficient (for this purpose ignoring all claims held by the Second Priority
Secured Parties), the Senior Priority Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect
of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees and expenses (whether
or not allowed or allowable) before any distribution is made in respect of the Second Priority Debt Obligations, with each Second Priority
Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby acknowledging
and agreeing to turn over to the Designated Senior Priority Representative amounts otherwise received or receivable by them to the extent
necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second
Priority Secured Parties.
SECTION
6.06. No Waivers Of Rights Of Senior Priority Secured Parties. Nothing contained herein shall, except as expressly provided
herein, prohibit or in any way limit any Senior Priority Representative or any other Senior Priority Secured Party from objecting in
any Insolvency or Liquidation Proceeding or otherwise to any action taken by any Second Priority Secured Party, including the
seeking by any Second Priority Secured Party of adequate protection or the asserting by any Second Priority Secured Party of any of
its rights and remedies under the Second Priority Debt Documents or otherwise.
SECTION
6.07. Application. This Agreement, which the parties hereto expressly acknowledge is a “subordination agreement” under
Section 510(a) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law, shall be effective before, during and after
the commencement of any Insolvency or Liquidation Proceeding. The relative rights as to the Shared Collateral and proceeds thereof shall
continue after the commencement of any Insolvency or Liquidation Proceeding on the same basis as prior to the date of the petition therefor,
subject to any court order approving the financing of, or use of cash collateral by, any Grantor. All references herein to any Grantor
shall include such Grantor as a debtor-in-possession and any receiver or trustee for such Grantor.
SECTION 6.08.
Other Matters. To the extent that any Second Priority Representative or any Second Priority Secured Party has or acquires rights
under Section 363 or Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the
Shared Collateral, such Second Priority Representative, on behalf of itself and each Second Priority Secured Party under its Second Priority
Debt Facility, agrees not to assert any such rights without the prior written consent of each Senior Priority Representative; provided
that if requested by any Senior Priority Representative, such Second Priority Representative shall timely exercise such rights in the
manner requested by the Senior Priority Representatives (acting unanimously), including any rights to payments in respect of such rights.
SECTION 6.09.
506(c) Claims. Until the Discharge of Senior Priority Obligations has occurred, each Second Priority Representative, on behalf
of itself and each Second Priority Secured Party under its Second Priority Debt Facility, agrees that it will not assert or enforce any
claim under Section 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law senior to or on a parity with the
Liens securing the Senior Priority Obligations for costs or expenses of preserving or disposing of any Shared Collateral.
SECTION 6.10.
Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured
by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring
plan, on account of both the Senior Priority Obligations and the Second Priority Debt Obligations, then, to the extent the debt obligations
distributed on account of the Senior Priority Obligations and on account of the Second Priority Debt Obligations are secured by Liens
upon the same assets or property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt obligations.
SECTION 6.11. Post-Petition Interest.
(a)
None of the Second Priority Representatives or any other Second Priority Secured Party shall oppose or seek to challenge any claim
by any Senior Priority Representative or any Senior Priority Secured Party for allowance in any Insolvency or Liquidation Proceedings
of Senior Priority Obligations consisting of claims for post-petition interest, fees, costs, expenses, and/or other charges, under Section
506(b) of the Bankruptcy Code or otherwise (for this purpose ignoring all claims and Liens held by the Second Priority Secured Parties
on the Shared Collateral).
(b) None
of the Senior Priority Representatives or any Senior Priority Secured Party shall oppose or seek to challenge any claim by any
Second Priority Representative or any other Second Priority Secured Party for allowance in any Insolvency or Liquidation Proceedings
of Second Priority Debt Obligations consisting of claims for post-petition interest, fees, costs, expenses, and/or other charges,
under Section 506(b) of the Bankruptcy Code or otherwise, to the extent of the value of the Lien of the Second Priority
Representatives on behalf of the Second Priority Secured Parties on the Shared Collateral (after taking into account the Senior
Priority Obligations and the Senior Priority Liens).
ARTICLE 7
RELIANCE;
ETC.
SECTION 7.01.
Reliance. The consent by the Senior Priority Secured Parties to the execution and delivery of the Second Priority Debt Documents
to which the Senior Priority Secured Parties have consented and all loans and other extensions of credit made or deemed made on and after
the date hereof by the Senior Priority Secured Parties to Holdings, the Borrower or any Subsidiary shall be deemed to have been given
and made in reliance upon this Agreement. Each Second Priority Representative, on behalf of itself and each Second Priority Secured Party
under its Second Priority Debt Facility, acknowledges that it and such Second Priority Secured Parties have, independently and without
reliance on any Senior Priority Representative or other Senior Priority Secured Party, and based on documents and information deemed by
them appropriate, made their own credit analysis and decision to enter into the Second Priority Debt Documents to which they are party
or by which they are bound, this Agreement and the transactions contemplated hereby and thereby, and they will continue to make their
own credit decision in taking or not taking any action under the Second Priority Debt Documents or this Agreement.
SECTION 7.02.
No Warranties Or Liability. Each Second Priority Representative, on behalf of itself and each Second Priority Secured Party under
its Second Priority Debt Facility, acknowledges and agrees that neither any Senior Priority Representative nor any other Senior Priority
Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Senior Priority Debt Documents, the ownership of any Shared Collateral or
the perfection or priority of any Liens thereon. The Senior Priority Secured Parties will be entitled to manage and supervise their respective
loans and extensions of credit under the Senior Priority Debt Documents in accordance with Applicable Law and as they may otherwise, in
their sole discretion, deem appropriate, and the Senior Priority Secured Parties may manage their loans and extensions of credit without
regard to any rights or interests that the Second Priority Representatives and the Second Priority Secured Parties have in the Shared
Collateral or otherwise, except as otherwise provided in this Agreement. Neither any Senior Priority Representative nor any other Senior
Priority Secured Party shall have any duty to any Second Priority Representative or Second Priority Secured Party to act or refrain from
acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreement with
Holdings, the Borrower or any Subsidiary (including the Second Priority Debt Documents), regardless of any knowledge thereof that they
may have or be charged with. Except as expressly set forth in this Agreement, the Senior Priority Representatives, the Senior Priority
Secured Parties, the Second Priority Representatives and the Second Priority Secured Parties have not otherwise made to each other, nor
do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to
(a) the enforceability, validity, value or collectibility of any of the Senior Priority Obligations, the Second Priority Debt Obligations
or any guarantee or security which may have been granted to any of them in connection therewith, (b) any Grantor’s title to or right
to transfer any of the Shared Collateral or (c) any other matter except as expressly set forth in this Agreement.
SECTION 7.03.
Obligations Unconditional. All rights, interests, agreements and obligations of the Senior Priority Representatives, the Senior
Priority Secured Parties, the Second Priority Representatives and the Second Priority Secured Parties hereunder shall remain in full force
and effect irrespective of:
(a)
any lack of validity or enforceability of any Senior Priority Debt Document or any Second Priority Debt Document;
(b)
any change in the time, manner or place of payment of, or in any other terms of, all or any of the Senior Priority Obligations
or Second Priority Debt Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether
by course of conduct or otherwise, of the terms of the First Lien Credit Agreement or any other Senior Priority Debt Document or of the
terms of any Second Priority Debt Document;
(c)
any exchange of any security interest in any Shared Collateral or any other collateral or any amendment, waiver or other modification,
whether in writing or by course of conduct or otherwise, of all or any of the Senior Priority Obligations or Second Priority Debt Obligations
or any guarantee thereof;
(d)
the commencement of any Insolvency or Liquidation Proceeding in respect of Holdings, the Borrower or any other Grantor; or
(e)
any other circumstances that otherwise might constitute a defense available to, or a discharge of, (i) Holdings, the Borrower or
any other Grantor in respect of the Senior Priority Obligations or (ii) any Second Priority Representative or Second Priority Secured
Party in respect of this Agreement.
ARTICLE
8
MISCELLANEOUS
SECTION 8.01.
Conflicts. Subject to Section 8.18, in the event of any conflict between the provisions of this Agreement and the provisions of
any Senior Priority Debt Document or any Second Priority Debt Document, the provisions of this Agreement shall govern. Notwithstanding
the foregoing, the relative rights and obligations of the Senior Priority Representatives and the Senior Priority Secured Parties (as
amongst themselves) with respect to any Senior Priority Collateral shall be governed by the terms of the First Lien Intercreditor Agreement
and in the event of any conflict between the First Lien Intercreditor Agreement and this Agreement, the provisions of the First Lien Intercreditor
Agreement shall control.
SECTION 8.02.
Continuing Nature Of This Agreement; Severability. Subject to Section 6.04, this Agreement shall continue to be effective until
the Discharge of Senior Priority Obligations shall have occurred. This is a continuing agreement of Lien subordination, and the Senior
Priority Secured Parties may continue, at any time and without notice to the Second Priority Representatives or any Second Priority Secured
Party, to extend credit and other financial accommodations and lend monies to or for the benefit of Holdings, the Borrower or any Subsidiary
constituting Senior Priority Obligations in reliance hereon. The terms of this Agreement shall survive and continue in full force and
effect in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 8.03. Amendments; Waivers.
(a) No
failure or delay on the part of any party hereto in exercising any right or power hereunder 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 parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances.
(b)
This Agreement may be amended in writing signed by each Representative (in each case, acting in accordance with the documents governing
the applicable Debt Facility); provided that any such amendment, supplement or waiver which by the terms of this Agreement requires
the Borrower’s consent or which increases the obligations or reduces the rights of Holdings, the Borrower or any Grantor, shall
require the consent of the Borrower. Any such amendment, supplement or waiver shall be in writing and shall be binding upon the Senior
Priority Secured Parties and the Second Priority Secured Parties and their respective successors and assigns.
(c)
Notwithstanding the foregoing, without the consent of any Secured Party, any Representative may become a party hereto by execution
and delivery of a Joinder Agreement in accordance with Section 8.09 of this Agreement and, upon such execution and delivery, such Representative
and the Secured Parties and Senior Priority Obligations or Second Priority Debt Obligations of the Debt Facility for which such Representative
is acting shall be subject to the terms hereof.
SECTION
8.04. Information Concerning Financial Condition Of Holdings, The Borrower And The Subsidiaries. The Senior Priority Representatives,
the Senior Priority Secured Parties, the Second Priority Representatives and the Second Priority Secured Parties shall each be responsible
for keeping themselves informed of (a) the financial condition of Holdings, the Borrower and the Subsidiaries and all endorsers or guarantors
of the Senior Priority Obligations or the Second Priority Debt Obligations and (b) all other circumstances bearing upon the risk of nonpayment
of the Senior Priority Obligations or the Second Priority Debt Obligations. The Senior Priority Representatives, the Senior Priority Secured
Parties, the Second Priority Representatives and the Second Priority Secured Parties shall have no duty to advise any other party hereunder
of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that any Senior Priority
Representative, any Senior Priority Secured Party, any Second Priority Representative or any Second Priority Secured Party, in its sole
discretion, undertakes at any time or from time to time to provide any such information to any other party, it shall be under no obligation
to (i) make, and the Senior Priority Representatives, the Senior Priority Secured Parties, the Second Priority Representatives and the
Second Priority Secured Parties shall not make or be deemed to have made, any express or implied representation or warranty, including
with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (ii) provide any additional
information or to provide any such information on any subsequent occasion, (iii) undertake any investigation or (iv) disclose any information
that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required
to maintain confidential.
SECTION 8.05.
Subrogation. Each Second Priority Representative, on behalf of itself and each Second Priority Secured Party under its Second Priority
Debt Facility, hereby waives any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of Senior
Priority Obligations has occurred.
SECTION
8.06. Application Of Payments. Except as otherwise provided herein, all payments received by the Senior Priority Secured
Parties may be applied, reversed and reapplied, in whole or in part, to such part of the Senior Priority Obligations as the Senior
Priority Secured Parties, in their sole discretion, deem appropriate, consistent with the terms of the Senior Priority Debt
Documents. Except as otherwise provided herein, each Second Priority Representative, on behalf of itself and each Second Priority
Secured Party under its Second Priority Debt Facility, assents to any such extension or postponement of the time of payment of the
Senior Priority Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or
release of any security that may at any time secure any part of the Senior Priority Obligations and to the addition or release of
any other Person primarily or secondarily liable therefor.
SECTION 8.07.
Additional Grantors. Holdings and the Borrower agree that, if any Subsidiary shall become a Grantor after the date hereof, they
will promptly cause such Subsidiary to become party hereto by executing and delivering an instrument in the form of Annex I. Upon such
execution and delivery, such Subsidiary will become a Grantor hereunder with the same force and effect as if originally named as a Grantor
herein. The execution and delivery of such instrument shall not require the consent of any other party hereunder, and will be acknowledged
by the Designated Second Priority Representative and the Designated Senior Priority Representative. The rights and obligations of each
Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
SECTION 8.08.
Dealings With Grantors. Upon any application or demand by Holdings, the Borrower or any other Grantor to any Representative to
take or permit any action under any of the provisions of this Agreement or under any Collateral Document (if such action is subject to
the provisions hereof), Holdings, the Borrower or such other Grantor, as appropriate, shall furnish to such Representative a certificate
of an Authorized Officer (an “Officer’s Certificate”) stating that all conditions precedent, if any, provided
for in this Agreement or such Collateral Document, as the case may be, relating to the proposed action have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision
of this Agreement or any Collateral Document relating to such particular application or demand, no additional certificate or opinion need
be furnished.
SECTION 8.09. Additional Debt Facilities.
(a) To
the extent, but only to the extent, permitted by the provisions of the Senior Priority Debt Documents and the Second Priority Debt
Documents, the Borrower, Holdings or any other Grantor may Incur one or more series or classes of Additional Second Priority Debt
and one or more series or classes of Additional Senior Priority Debt. Any such additional class or series of Additional Second
Priority Debt (the “Second Priority Class Debt”) may be secured by a junior priority, subordinated Lien on Shared
Collateral, in each case under and pursuant to the relevant Second Priority Collateral Documents for such Second Priority Class
Debt, if and subject to the condition that the Representative of any such Second Priority Class Debt (each, a “Second
Priority Class Debt Representative”), acting on behalf of the holders of such Second Priority Class Debt (such
Representative and holders in respect of any Second Priority Class Debt being referred to as the “Second Priority Class
Debt Parties”), becomes a party to this Agreement by satisfying conditions (i) through (iii), as applicable, of the
immediately succeeding paragraph, and Section 8.09(b). Any such additional class or series of Senior Priority Debt Facilities (the
“Senior Priority Class Debt”; and the Senior Priority Class Debt and Second Priority Class Debt, collectively,
the “Class Debt”) may be secured by a senior priority Lien on Shared Collateral, in each case under and pursuant
to the Senior Priority Collateral Documents, if and subject to the condition that the Representative of any such Senior Priority
Class Debt (each, a “Senior Priority Class Debt Representative”; and the Senior Priority Class Debt
Representatives and Second Priority Class Debt Representatives, collectively, the “Class Debt Representatives”),
acting on behalf of the holders of such Senior Priority Class Debt (such Representative and holders in respect of any such Senior
Priority Class Debt being referred to as the “Senior Priority Class Debt Parties; and the Senior Priority Class Debt
Parties and Second Priority Class Debt Parties, collectively, the “Class Debt Parties”), becomes a party to
this Agreement by satisfying the conditions set forth in clauses (i) through (iii), as applicable, of the immediately succeeding
paragraph, and Section 8.09(b). In order for a Class Debt Representative to become a party to this Agreement:
(i)
such Class Debt Representative shall have executed and delivered to the Designated Senior Priority Representative and the Designated
Second Priority Representative Joinder Agreement substantially in the form of Annex II (if such Representative is a Second Priority Class
Debt Representative) or Annex III (if such Representative is a Senior Priority Class Debt Representative) (with such changes as may be
reasonably approved by the Designated Senior Priority Representative and such Class Debt Representative) pursuant to which it becomes
a Representative hereunder, and the Class Debt in respect of which such Class Debt Representative is the Representative and the related
Class Debt Parties become subject hereto and bound hereby;
(ii)
the Borrower shall have delivered to the Designated Senior Priority Representative an Officer’s Certificate stating that
the conditions set forth in this Section 8.09 are satisfied with respect to such Class Debt and, if requested, true and complete copies
of each of the Second Priority Debt Documents or Senior Priority Debt Documents, as applicable, relating to such Class Debt, certified
as being true and correct by an Authorized Officer of the Borrower; and
(iii)
the Second Priority Debt Documents or Senior Priority Debt Documents, as applicable, relating to such Class Debt shall provide,
or shall be amended on terms and conditions reasonably approved by the Designated Senior Priority Representative and such Class Debt Representative,
that each Class Debt Party with respect to such Class Debt will be subject to and bound by the provisions of this Agreement in its capacity
as a holder of such Class Debt.
(b)
With respect to any Class Debt that is Incurred after the Closing Date, the Borrower and each of the other Grantors agrees to take
such actions (if any) as may from time to time reasonably be requested by any Senior Priority Representative, any Second Priority Representative
or any Major Second Priority Representative, and enter into such technical amendments, modifications and/or supplements to this Agreement
or the then existing Guarantees and Collateral Documents (or execute and deliver such additional Collateral Documents) as may from time
to time be reasonably requested by such Persons, to ensure that the Class Debt is secured by, and entitled to the benefits of, the relevant
Collateral Documents relating to such Class Debt, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to,
and authorizes the Designated Senior Priority Representative and the Designated Second Priority Representative, as the case may be, to
enter into, any such technical amendments, modifications and/or supplements (and additional Collateral Documents).
SECTION 8.10. Consent To Jurisdiction;
Waivers. Each Representative, on behalf of itself and the Secured Parties of the Debt Facility for which it is acting, irrevocably
and unconditionally:
(a)
submits for itself and its property in any legal action or proceeding relating to this Agreement and the Collateral Documents,
or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State
of New York in the County of New York, the courts of the United States of America for the Southern District of New York in the County
of New York, and appellate courts from any thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c)
agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Representative) at the address referred to in
Section 8.11;
(d)
agrees that nothing herein shall affect the right of any other party hereto (or any Secured Party) to effect service of process
in any other manner permitted by law; and
(e)
waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding
referred to in this Section 8.10 any special, exemplary, punitive or consequential damages.
SECTION 8.11. Notices. All
notices, requests, demands and other communications provided for or permitted hereunder shall be in writing and shall be sent:
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(i)
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if to Holdings, the Borrower or any Grantor, to the Borrower, at its address at:
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c/o Wirepath LLC
1800 Continental Boulevard, Suite 200
Charlotte, NC 28273
Attention: [*****]
Tel: [*****]
Email: [*****]
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(ii)
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if to the First Lien Collateral Agent, to it at:
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UBS AG, Stamford Branch
600 Washington Blvd., 9th Floor
Stamford, CT 06901
Attn: Structured Finance Processing
Tel: [*****]
Facsimile: [*****]
Email: [*****]
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(iii)
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if to the Second
Lien Agent, to it at:
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[ ]
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(iv)
if to any other Representative, to it at the address specified by it in the Joinder Agreement delivered by it pursuant to Section
8.09.
Unless
otherwise specifically provided herein, all notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier
service or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this Section 8.11 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 8.11. As agreed to among Holdings, the Borrower, the
Administrative Agent and the applicable Lenders from time to time, notices and other communications may also be delivered by e-mail
to the email address of a representative of the applicable Person provided from time to time by such Person.
SECTION 8.12.
Further Assurances. Each Senior Priority Representative, on behalf of itself and each Senior Priority Secured Party under the Senior
Priority Debt Facility for which it is acting, and each Second Priority Representative, on behalf of itself, and each Second Priority
Secured Party under its Second Priority Debt Facility, agrees that it will take such further action and shall execute and deliver such
additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate
the terms of, and the Lien priorities contemplated by, this Agreement.
SECTION 8.13. Governing Law; Waiver Of Jury Trial.
(A)
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(B)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 8.14.
Binding On Successors And Assigns. This Agreement shall be binding upon the Senior Priority Representatives, the Senior Priority
Secured Parties, the Second Priority Representatives, the Second Priority Secured Parties, Holdings, the Borrower, the other Grantors
party hereto and their respective successors and assigns.
SECTION 8.15.
Section Titles. The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of this Agreement.
SECTION 8.16.
Counterparts. This Agreement may be executed in one or more counterparts, including by means of facsimile or other electronic method,
each of which shall be an original and all of which shall together constitute one and the same document. Delivery of an executed signature
page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 8.17.
Authorization. By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the
other parties hereto that it is duly authorized to execute this Agreement. The First Lien Collateral Agent represents and warrants that
this Agreement is binding upon the First Lien Credit Agreement Secured Parties. The Second Lien Agent represents and warrants that this
Agreement is binding upon the Second Lien Agreement Secured Parties.
SECTION 8.18.
No Third Party Beneficiaries; Successors And Assigns. The lien priorities set forth in this Agreement and the rights and benefits
hereunder in respect of such lien priorities shall inure solely to the benefit of the Senior Priority Representatives, the Senior Priority
Secured Parties, the Second Priority Representatives and the Second Priority Secured Parties, and their respective permitted successors
and assigns, and no other Person (including the Grantors, or any trustee, receiver, debtor in possession or bankruptcy estate in a bankruptcy
or like proceeding) shall have or be entitled to assert such rights.
SECTION 8.19.
Effectiveness. This Agreement shall become effective when executed and delivered by the parties hereto.
SECTION 8.20.
Administrative Agent And Representative. It is understood and agreed that (a) the First Lien Collateral Agent is entering into
this Agreement in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement and the provisions of
Section 12 of the First Lien Credit Agreement applicable to the Agents (as defined therein) thereunder shall also apply to the First Lien
Collateral Agent hereunder, (b) the Second Lien Agent is entering into this Agreement in its capacity as [administrative agent and collateral
agent] under the Second Lien Agreement and the provisions of Section [ ] of the Second Lien Agreement applicable to the Agents (as defined
therein) thereunder shall also apply to the Second Lien Agent hereunder and (c) each other Representative party hereto is entering into
this Agreement in its capacity as trustee or agent for the secured parties referenced in the applicable Additional Senior Priority Debt
Document or Additional Second Priority Debt Document (as applicable) and the corresponding exculpatory and liability-limiting provisions
of such agreement applicable to such Representative thereunder shall also apply to such Representative hereunder.
SECTION 8.21.
Relative Rights. Notwithstanding anything in this Agreement to the contrary (except to the extent contemplated by Sections 5.01(a),
5.01(d) or 5.03(b)), nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the provisions of the First
Lien Credit Agreement, any other Senior Priority Debt Document or any Second Priority Debt Documents, or permit Holdings, the Borrower
or any other Grantor to take any action, or fail to take any action, to the extent such action or failure would otherwise constitute a
breach of, or default under, the First Lien Credit Agreement or any other Senior Priority Debt Document or any Second Priority Debt Documents,
(b) change the relative priorities of the Senior Priority Obligations or the Liens granted under the Senior Priority Collateral Documents
on the Shared Collateral (or any other assets) as among the Senior Priority Secured Parties, (c) otherwise change the relative rights
of the Senior Priority Secured Parties in respect of the Shared Collateral as among such Senior Priority Secured Parties or (d) obligate
Holdings, the Borrower or any other Grantor to take any action, or fail to take any action, that would otherwise constitute a breach of,
or default under, the First Lien Credit Agreement or any other Senior Priority Debt Document or any Second Priority Debt Document.
SECTION 8.22.
Survival Of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered
to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
[Signatures Follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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UBS AG, STAMFORD BRANCH, as First Lien
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Collateral Agent
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[ ], as Second Lien
Agent
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By:
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Name:
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Title:
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WIREPATH LLC
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ANNEX I
[FORM OF] SUPPLEMENT NO. [ ]
dated as of [ ], 20[ ] to the JUNIOR PRIORITY INTERCREDITOR AGREEMENT dated as of [ ] (the “Junior Priority
Intercreditor Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation (or any successor thereof)
(“Holdings”), WIREPATH LLC, a Delaware limited liability company (the “Borrower”), certain
subsidiaries and affiliates of the Borrower (each a “Grantor”), UBS AG, STAMFORD BRANCH or any successor thereof,
as Administrative Agent and Collateral Agent under the First Lien Credit Agreement, [ ] or any successor thereof, as Administrative
Agent and Collateral Agent under the Second Lien Agreement, and the additional Representatives from time to time a party
thereto.
A.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Junior Priority
Intercreditor Agreement.
B.
The Grantors have entered into the Junior Priority Intercreditor Agreement. Pursuant to the First Lien Credit Agreement, certain
Additional Senior Priority Debt Documents and certain Second Priority Debt Documents, certain newly acquired or organized Subsidiaries
of the Borrower are required to enter into the Junior Priority Intercreditor Agreement. Section 8.07 of the Junior Priority Intercreditor
Agreement provides that such Subsidiaries may become party to the Junior Priority Intercreditor Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Grantor”) is executing this Supplement
in accordance with the requirements of the First Lien Credit Agreement, the Second Priority Debt Documents and Additional Senior Priority
Debt Documents.
Accordingly, the Designated
Senior Priority Representative and the New Subsidiary Grantor agree as follows:
SECTION 1. In
accordance with Section 8.07 of the Junior Priority Intercreditor Agreement, the New Grantor by its signature below becomes a Grantor
under the Junior Priority Intercreditor Agreement with the same force and effect as if originally named therein as a Grantor, and the
New Grantor hereby agrees to all the terms and provisions of the Junior Priority Intercreditor Agreement applicable to it as a Grantor
thereunder. Each reference to a “Grantor” in the Junior Priority Intercreditor Agreement shall be deemed to include the New
Grantor. The Junior Priority Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2.
The New Grantor represents and warrants to the Designated Senior Priority Representative and the other Secured Parties that this Supplement
has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms.
SECTION 3.
This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the Designated Senior Priority Representative shall have received
a counterpart of this Supplement that bears the signature of the New Grantor. Delivery of an executed signature page to this Supplement
by facsimile transmission or other electronic method shall be as effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. Except
as expressly supplemented hereby, the Junior Priority Intercreditor Agreement shall remain in full force and effect.
SECTION
5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
6. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect,
no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable,
but the validity, legality and enforceability of the remaining provisions contained herein and in the Junior Priority Intercreditor Agreement
shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
SECTION
7. All communications and notices hereunder shall be in writing and given as provided in Section 8.11 of the Junior Priority Intercreditor
Agreement. All communications and notices hereunder to the New Grantor shall be given to it in care of the Borrower as specified in the
Junior Priority Intercreditor Agreement.
SECTION
8. The Borrower agrees to reimburse the Designated Senior Priority Representative for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior Priority Representative.
IN WITNESS
WHEREOF, the New Grantor, and the Designated Senior Priority Representative have duly executed this Supplement to the Junior Priority
Intercreditor Agreement as of the day and year first above written.
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[NAME OF NEW SUBSIDIARY GRANTOR],
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By:
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Name:
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Title:
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Acknowledged by:
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[ ], as Designated Senior Priority Representative,
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By:
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Name:
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Title:
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[ ],
as Designated Second Priority Representative,
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By:
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Name:
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Title:
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ANNEX II
[FORM OF] REPRESENTATIVE SUPPLEMENT
NO. [ ] dated as of [ ], 20[ ] to the JUNIOR PRIORITY INTERCREDITOR AGREEMENT dated as of [ ], 20[ ] (the “Junior Priority
Intercreditor Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation (or any successor thereof)
(“Holdings”), WIREPATH LLC, a Delaware limited liability company (the “Borrower”), certain
subsidiaries and affiliates of the Borrower (each a “Grantor”), UBS AG, STAMFORD BRANCH or any successor thereof,
as Administrative Agent and Collateral Agent under the First Lien Credit Agreement, [ ] or any successor thereof, as Administrative
Agent and Collateral Agent under the Second Lien Agreement, and the additional Representatives from time to time a party
thereto.
A.
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Junior Priority
Intercreditor Agreement.
B.
As a condition to the ability of the Borrower, Holdings or any other Grantor to incur Second Priority Class Debt and to secure
such Second Priority Class Debt with the Second Priority Lien and to have such Second Priority Class Debt guaranteed by the Grantors on
a subordinated basis, in each case under and pursuant to the Second Priority Collateral Documents, the Second Priority Class Representative
in respect of such Second Priority Class Debt is required to become a Representative under, and such Second Priority Class Debt and the
Second Priority Class Debt Parties in respect thereof are required to become subject to and bound by, the Junior Priority Intercreditor
Agreement. Section 8.09 of the Junior Priority Intercreditor Agreement provides that such Second Priority Class Debt Representative may
become a Representative under, and such Second Priority Class Debt and such Second Priority Class Debt Parties may become subject to and
bound by, the Junior Priority Intercreditor Agreement, pursuant to the execution and delivery by the Second Priority Class Debt Representative
of an instrument in the form of this Representative Supplement and the satisfaction of the other conditions set forth in Section 8.09
of the Junior Priority Intercreditor Agreement. The undersigned Second Priority Class Debt Representative (the “New Representative”)
is executing this Supplement in accordance with the requirements of the Senior Priority Debt Documents and the Second Priority Debt Documents.
Accordingly, the Designated Senior Priority Representative
and the New Representative agree as follows:
SECTION 1. In
accordance with Section 8.09 of the Junior Priority Intercreditor Agreement, the New Representative by its signature below becomes a Representative
under, and the related Second Priority Class Debt and Second Priority Class Debt Parties become subject to and bound by, the Junior Priority
Intercreditor Agreement with the same force and effect as if the New Representative had originally been named therein as a Representative,
and the New Representative, on behalf of itself and such Second Priority Class Debt Parties, hereby agrees to all the terms and provisions
of the Junior Priority Intercreditor Agreement applicable to it as a Second Priority Representative and to the Second Priority Class Debt
Parties that it represents as Second Priority Secured Parties. Each reference to a “Representative” or “Second
Priority Representative” in the Junior Priority Intercreditor Agreement shall be deemed to include the New Representative. The
Junior Priority Intercreditor Agreement is hereby incorporated herein by reference.
SECTION
2. The New Representative represents and warrants to the Designated Senior Priority Representative and the other Secured Parties
that (i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee], (ii)
this Representative Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Second Priority Debt Documents
relating to such Second Priority Class Debt provide that, upon the New Representative’s entry into this Agreement, the Second
Priority Class Debt Parties in respect of such Second Priority Class Debt will be subject to and bound by the provisions of the
Junior Priority Intercreditor Agreement as Second Priority Secured Parties.
SECTION 3.
This Representative Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Representative Supplement shall become effective when the Designated Senior Priority
Representative shall have received a counterpart of this Representative Supplement that bears the signature of the New Representative.
Delivery of an executed signature page to this Representative Supplement by facsimile transmission or other electronic method shall be
effective as delivery of a manually signed counterpart of this Representative Supplement.
SECTION 4. Except
as expressly supplemented hereby, the Junior Priority Intercreditor Agreement shall remain in full force and effect.
SECTION
5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In
case any one or more of the provisions contained in this Representative Supplement should be held invalid, illegal or unenforceable in
any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal
or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Junior Priority
Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provisions.
SECTION 7.
All communications and notices hereunder shall be in writing and given as provided in Section 8.11 of the Junior Priority Intercreditor
Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth below its
signature hereto.
SECTION 8.
The Borrower agrees to reimburse the Designated Senior Priority Representative for its reasonable out-of-pocket expenses in connection
with this Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior
Priority Representative.
IN WITNESS
WHEREOF, the New Representative and the Designated Senior Priority Representative have duly executed this Representative Supplement to
the Junior Priority Intercreditor Agreement as of the day and year first above written.
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[NAME OF NEW REPRESENTATIVE],
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as [ ]
for the holders of [ ],
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By:
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Name:
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Title:
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Address for notices:
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attention of:
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Telecopy:
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[ ],
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as Designated Senior Priority Representative,
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By:
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Name:
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Title:
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Acknowledged by:
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[ ]
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By:
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Name:
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Title:
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[ ]
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By:
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Name:
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Title:
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THE GRANTORS
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LISTED ON SCHEDULE I HERETO
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By:
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Name:
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Title:
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ANNEX III
[FORM OF] REPRESENTATIVE SUPPLEMENT
NO. [ ] dated as of [ ], 20[ ] to the JUNIOR PRIORITY INTERCREDITOR AGREEMENT dated as of [ ], 20[ ] (the “Junior Priority
Intercreditor Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation (or any successor thereof)
(“Holdings”), WIREPATH LLC, a Delaware limited liability company (the “Borrower”), certain
subsidiaries and affiliates of the Borrower (each a “Grantor”), UBS AG, STAMFORD BRANCH or any successor thereof,
and Collateral Agent under the First Lien Credit Agreement, [ ] or any successor thereof, as Administrative Agent and Collateral
Agent under the Second Lien Agreement, and the additional Representatives from time to time a party thereto.
A.
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Junior Priority
Intercreditor Agreement.
B.
As a condition to the ability of the Borrower, Holdings or any other Grantor to incur Senior Priority Class Debt after the date
of the Junior Priority Intercreditor Agreement and to secure such Senior Priority Class Debt with the Senior Lien and to have such Senior
Priority Class Debt guaranteed by the Grantors on a senior basis, in each case under and pursuant to the Senior Priority Collateral Documents,
the Senior Priority Class Debt Representative in respect of such Senior Priority Class Debt is required to become a Representative under,
and such Senior Priority Class Debt and the Senior Priority Class Debt Parties in respect thereof are required to become subject to and
bound by, the Junior Priority Intercreditor Agreement. Section 8.09 of the Junior Priority Intercreditor Agreement provides that such
Senior Priority Class Debt Representative may become a Representative under, and such Senior Priority Class Debt and such Senior Priority
Class Debt Parties may become subject to and bound by, the Junior Priority Intercreditor Agreement, pursuant to the execution and delivery
by the Senior Priority Class Debt Representative of an instrument in the form of this Representative Supplement and the satisfaction of
the other conditions set forth in Section 8.09 of the Junior Priority Intercreditor Agreement. The undersigned Senior Priority Class Debt
Representative (the “New Representative”) is executing this Supplement in accordance with the requirements of the Senior
Priority Debt Documents and the Second Priority Debt Documents.
Accordingly, the Designated Senior Priority Representative
and the New Representative agree as follows:
SECTION 1.
In accordance with Section 8.09 of the Junior Priority Intercreditor Agreement, the New Representative by its signature below becomes
a Representative under, and the related Senior Priority Class Debt and Senior Priority Class Debt Parties become subject to and bound
by, the Junior Priority Intercreditor Agreement with the same force and effect as if the New Representative had originally been named
therein as a Representative, and the New Representative, on behalf of itself and such Senior Priority Class Debt Parties, hereby agrees
to all the terms and provisions of the Junior Priority Intercreditor Agreement applicable to it as a Senior Priority Representative and
to the Senior Priority Class Debt Parties that it represents as Senior Priority Secured Parties. Each reference to a “Representative”
or “Senior Priority Representative” in the Junior Priority Intercreditor Agreement shall be deemed to include the New
Representative. The Junior Priority Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2.
The New Representative represents and warrants to the Designated Senior Priority Representative and the other Secured Parties that
(i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee] under
[describe new facility], (ii) this Representative Supplement has been duly authorized, executed and delivered by it and constitutes
its legal, valid and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Senior
Priority Debt Documents relating to such Senior Priority Class Debt provide that, upon the New Representative’s entry into
this Agreement, the Senior Priority Class Debt Parties in respect of such Senior Priority Class Debt will be subject to and bound by
the provisions of the Junior Priority Intercreditor Agreement as Senior Priority Secured Parties.
SECTION 3.
This Representative Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Representative Supplement shall become effective when the Designated Senior Priority
Representative shall have received a counterpart of this Representative Supplement that bears the signature of the New Representative.
Delivery of an executed signature page to this Representative Supplement by facsimile transmission or other electronic method shall be
effective as delivery of a manually signed counterpart of this Representative Supplement.
SECTION 4. Except
as expressly supplemented hereby, the Junior Priority Intercreditor Agreement shall remain in full force and effect.
SECTION
5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In
case any one or more of the provisions contained in this Representative Supplement should be held invalid, illegal or unenforceable in
any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal
or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Junior Priority
Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provisions.
SECTION 7.
All communications and notices hereunder shall be in writing and given as provided in Section 8.11 of the Junior Priority Intercreditor
Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth below its
signature hereto.
SECTION 8.
The Borrower agrees to reimburse the Designated Senior Priority Representative for its reasonable out-of-pocket expenses in connection
with this Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior
Priority Representative.
IN WITNESS
WHEREOF, the New Representative and the Designated Senior Priority Representative have duly executed this Representative Supplement to
the Junior Priority Intercreditor Agreement as of the day and year first above written.
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[NAME OF NEW REPRESENTATIVE],
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as [ ]
for the holders of [ ],
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By:
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Name:
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Title:
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Address for notices:
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attention of:
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Telecopy:
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[ ],
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as Designated Senior Priority Representative,
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By:
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Name:
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Title:
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Acknowledged by:
[ ]
[ ]
THE GRANTORS
LISTED ON SCHEDULE I HERETO
EXHIBIT
H
TO THE
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
This
Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective Date (as defined below) and
is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”)
and [the][each]2 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4
Capitalized terms used in this Assignment and Acceptance and not otherwise defined herein shall have the meanings specified in the Credit
Agreement, dated as of August 4, 2017 (as the same may be amended, supplemented, amended and restated or otherwise modified from time
to time, the “Credit Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation, WIREPATH LLC,
a Delaware limited liability company, as the Borrower, the Lenders from time to time party thereto, UBS AG, STAMFORD BRANCH (the
“Administrative Agent”), as the Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer,
and the other parties from time to time party thereto, receipt of a copy of which is hereby acknowledged by [the][each] Assignee.
The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Acceptance as if set forth herein in full.
For an agreed
consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each]
Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions set forth in Annex 1 hereto and the Credit Agreement, as of the Effective Date inserted by the Administrative
Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity
as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant
thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations
of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters
of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors
(in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based
on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each
such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Acceptance,
without representation or warranty by [the][any] Assignor.
1 For
bracketed language here and elsewhere in this form relating to the Assignor[s], if the assignment is from a single Assignor, choose the
first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2 For
bracketed language here and elsewhere in this form relating to the Assignee[s], if the assignment is to a single Assignee, choose the
first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
3 Select
as appropriate.
4 Include
bracketed language if there are either multiple Assignors or multiple Assignees.
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1.
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Assignor[s]: [NAME OF ASSIGNOR[S]]
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2.
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Assignee[s]: [NAME OF ASSIGNEE[S]]
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[Assignee is an [Affiliate][Approved Fund] of [identify Lender]]
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3.
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Borrower[s]: [NAME OF BORROWER[S]]
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Assignor[s]5
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Assignee[s]6
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Credit Facility Assigned7
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Total
Commitment/Loans of
all Lenders
under
each Credit
Facility8
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Amount
of
Credit
Facility
Assigned
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Percentage
Assigned of
Total
Commitment/Loans
of all Lenders
under each Credit
Facility9
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CUSIP
Number
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Initial Term Loan Commitment
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$
[ ]
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$
[ ]
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[0.000000000]%
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Revolving Credit Commitment
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$
[ ]
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$
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[0.000000000]%
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[Incremental Term Loan Facility
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$
[ ]
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$
[ ]
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[0.000000000]%]
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[Additional/Replaceme nt Revolving Credit Facility
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$
[ ]
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$
[ ]
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[0.000000000]%]
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[Extended Term Loan Facility
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$
[ ]
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$
[ ]
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[0.000000000]%]
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[Extended Revolving Credit Facility
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$
[ ]
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$
[ ]
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[0.000000000]%]
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5.
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[Trade Date: , 20_ ]10
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6.
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Effective Date of Assignment (the “Effective Date”): ,
20_ .11 [subject to the payment of an assignment fee in an amount of $3,500 to the Administrative Agent]12.
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5 List
each Assignor, as appropriate.
6 List
each Assignee, as appropriate.
7 Fill
in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment.
8 Amount
to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date
9 To
be set forth, to at least 9 decimals, as a percentage of the Total Commitment/Loans of all Lenders under each Credit Facility.
10 To
be completed if the Assignor[s] and the Assignee[s] intend that the minimum assignment amount is to be determined as of the Trade Date.
11 To
be inserted by Administrative Agent and which shall be the effective date of recordation of transfer in the Register therefor.
12 To
be deleted for assignment made by the Joint Bookrunners, the Lead Arrangers or any of their respective Affiliates in connection with
the primary syndication of the Initial Term Loan Facility, or any assignment by any Principal Investor to any other Principal Investor.
The terms set forth in this Assignment and Acceptance
are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
[NAME OF ASSIGNOR], as Assignor
[NAME OF ASSIGNEE], as Assignee
[NAME OF ASSIGNEE], as Assignee
[Consented to and]13 Accepted:
[ ],
as Administrative Agent
[Consented to:
WIREPATH LLC,
13 If
required by Section 13.6(b)(i)(B) of Credit Agreement.
14 If
required by Section 13.6(b)(i)(A) of Credit Agreement.
ANNEX 1
STANDARD
TERMS AND CONDITIONS FOR ASSIGNMENT AND ACCEPTANCE
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1.
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Representations and Warranties and Agreements.
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1.1
Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the
relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any Lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to
consummate the transactions contemplated hereby and (b) assumes no responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents or any collateral thereunder, (iii) the financial condition of Holdings, the
Borrower or any of their Subsidiaries or (iv) the performance or observance by any of Holdings, the Borrower or any of their Subsidiaries
of any of their respective obligations under any Credit Document.
1.2 Assignee[s].
[The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender
under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be
satisfied by it in order to acquire the Assigned Interest and become a Lender thereunder, (iii) from and after the Effective Date,
it shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender under the Credit Agreement, (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the
Assigned Interest, is experienced in acquiring assets of such type, (v) to the extent such assignee has received, upon its request,
a list of Disqualified Lenders, it is not a Disqualified Lender or an Affiliate of a Disqualified Lender and (vi) it has received a
copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 9.1 of the Credit Agreement, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such]
Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, (b) appoints and authorizes the Administrative Agent and the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated
to the Administrative Agent and the Collateral Agent, respectively, by the terms thereof, together with such powers as are
reasonably incidental thereto and (c) agrees that (i) it will, independently and without reliance on the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Credit Documents and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as
a Lender, including, if it is a Non-U.S. Lender, its obligations pursuant to Section 5.4 of the Credit Agreement.
2. Payments:
From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest
(including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued
to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective
Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or
payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3.1 In
accordance with Section 13.6 of the Credit Agreement, upon execution, delivery, acceptance and recording of this Assignment and Acceptance,
from and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender under the Credit Agreement with Commitments as set forth herein and (b) the
Assignor shall, to the extent of the Assigned Interest assigned pursuant to this Assignment and Acceptance, be released from its obligations
under the Credit Agreement (and if this Assignment and Acceptance covers all of the Assignor’s rights and obligations under the
Credit Agreement, the Assignor shall cease to be a party to the Credit Agreement but shall continue to be entitled to the benefits of
Sections 2.10, 2.11, 3.5, 5.4, 13.5, 13.12 and 13.15 thereof).
3.2
This Assignment and Acceptance shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns. This Assignment and Acceptance may be executed by one or more of the parties to this Assignment and Acceptance on any number
of separate counterparts (including by facsimile or other electronic transmission (i.e., a “PDF or “TIF” file)),
and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Assignment and Acceptance
and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by and interpreted under the
law of the state of New York.
EXHIBIT I
TO THE CREDIT AGREEMENT
FORM OF AFFILIATED LENDER ASSIGNMENT AND ACCEPTANCE
This Affiliated
Lender Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective Date (as defined below)
and is entered into by and between the Assignor (as defined below) and the Assignee (as defined below). Capitalized terms used in this
Assignment and Acceptance and not otherwise defined herein shall have the meanings specified in the Credit Agreement, dated as of August
4, 2017 (as the same may be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit
Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation, WIREPATH LLC, a Delaware limited liability
company, as the Borrower, the Lenders from time to time party thereto, UBS AG, STAMFORD BRANCH (the “Administrative Agent”),
as the Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer, and the other parties from time to time party
thereto, receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Acceptance as if set forth herein in full.
For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably
purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions set forth in Annex 1
hereto and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all the
Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of the Credit
Facility identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action
and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the
Assignor.
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1.
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Assignor (the “Assignor”): [NAME OF ASSIGNOR]
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2.
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Assignee (the “Assignee”): [NAME OF ASSIGNEE]
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3.
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Borrower: [NAME OF BORROWER]
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Credit Facility
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Total
Commitment/Loans
of all Lenders
under each Credit
Facility
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Amount of Credit
Facility Assigned12
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Percentage Assigned of
Total
Commitment/Loans of
all Lenders under each
Credit Facility3
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CUSIP
Number
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Initial Term Loan
Commitment
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$
[ ]
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$
[ ]
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[0.000000000]%
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[Incremental Term
Loan Facility
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$
[ ]
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$
[ ]
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[0.000000000]%]
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[Extended Term Loan
Facility
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$
[ ]
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$
[ ]
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[0.000000000]%]
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5.
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Effective Date of Assignment (the “Effective
Date”): , 20 ,5 [subject to the
payment of an assignment fee in an amount of $3,500 to the Administrative Agent]6.
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The terms set forth in this Assignment and Acceptance are
hereby agreed to:
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[NAME OF ASSIGNOR], as Assignor
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[NAME OF ASSIGNEE], as Assignee
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1 Lenders
shall not be permitted to assign Revolving Credit Commitments, Revolving Credit Loans, Additional/Replacement Revolving Credit Loans,
Additional/Replacement Revolving Credit Commitments, Extended Revolving Credit Commitments or Extended Revolving Credit Loans to any
Purchasing Borrower Party or any Affiliated Lender.
2 Amount
to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
3 To
be set forth, to at least 9 decimals, as a percentage of the Total Commitment/Loans of all Lenders under each Credit Facility.
4 To
be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
5 To
be inserted by Administrative Agent and which shall be the effective date of recordation of transfer in the Register therefor.
6 To
be deleted for assignment made by Joint Bookrunners, the Lead Arrangers or any of their respective Affiliates in connection with the
primary syndication of the Initial Term Loan Facility.
[Consented to and]7 Accepted:
[ ],
as Administrative Agent
[Consented to:
WIREPATH LLC
7 If
required by Section 13.6(b)(i)(B) of Credit Agreement.
8 If
required by Section 13.6(b)(i)(A) of Credit Agreement.
STANDARD TERMS AND CONDITIONS
FOR
AFFILIATED LENDER ASSIGNMENT AND ACCEPTANCE
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1.
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Representations and Warranties and Agreements.
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1.1
Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest,
(ii) the Assigned Interest is free and clear of any Lien, encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated
hereby and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with
the Credit Agreement or any other Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Documents or any collateral thereunder, (iii) the financial condition of Holdings, the Borrower or any of their Subsidiaries
or (iv) the performance or observance by any of Holdings, the Borrower or any of their Subsidiaries of any of their respective obligations
under any Credit Document.
1.2 Assignee.
The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by
it in order to acquire the Assigned Interest and become a Lender thereunder, (iii) from and after the Effective Date, it shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a
Lender under the Credit Agreement, (iv) it is a [Purchasing Borrower Party][Affiliated Lender], as such term is defined in the
Credit Agreement, (v) after giving pro
forma effect to the purchase, assumption and assignment of Term Loans pursuant to Section 13.6(g) of the Credit Agreement, the
aggregate principal amount of all Term Loans of such Class outstanding held by Affiliated Lenders that are Non-Debt Fund Affiliates
as of the Effective Date does not exceed 25% of all Term Loans of such Class then outstanding under the Credit Agreement, (vi) it is
sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such
type, (vii) to the extent such assignee has received, upon its request, a list of Disqualified Lenders, it is not a Disqualified
Lender or an Affiliate of a Disqualified Lender [,][ and] (viii) it has received a copy of the Credit Agreement, and has received or
has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 9.1 of the
Credit Agreement, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or any other Lender [and (ix) it is not using the
proceeds from Revolving Credit Loans, Extended Revolving Credit Loans, Swingline Loans or Additional/Replacement Revolving Credit
Loans (or any other revolving credit facility that is effective in reliance on Section 10.1(a) or Section 10.1(u) of the Credit
Agreement) to purchase any Term Loans]9, (b) appoints and authorizes the Administrative Agent and the Collateral Agent to
take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are
delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms thereof, together with such powers as are
reasonably incidental thereto and (c) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Credit Documents and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender, including,
if it is a Non-U.S. Lender, its obligations pursuant to Section 5.4 of the Credit Agreement.
9 To
be inserted if assignment to a Purchasing Borrower Party.
2.
Payments: From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding
the Effective Date and to the relevant Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the
foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after
the Effective Date to the Assignee.
3.1
In accordance with Section 13.6 of the Credit Agreement, upon execution, delivery, acceptance and recording of this Assignment
and Acceptance, from and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement and, to the extent provided
in this Assignment and Acceptance (subject to the limitations set forth in Section 13.6(g)(ii) and Section 13.6(h) of the Credit Agreement),
have the rights and obligations of a Lender under the Credit Agreement with Commitments as set forth herein and (b) the Assignor shall,
to the extent of the Assigned Interest assigned pursuant to this Assignment and Acceptance, be released from its obligations under the
Credit Agreement (and if this Assignment and Acceptance covers all of the Assignor’s rights and obligations under the Credit Agreement,
the Assignor shall cease to be a party to the Credit Agreement but shall continue to be entitled to the benefits of Sections 2.10, 2.11,
3.5, 5.4, 13.5, 13.12, 13.15 and 13.16 thereof).
3.2
This Assignment and Acceptance shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns. This Assignment and Acceptance may be executed by one or more of the parties to this Assignment and Acceptance on any number
of separate counterparts (including by facsimile or other electronic transmission (i.e., a “PDF or “TIF” file)), and
all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Assignment and Acceptance and
the rights and obligations of the parties hereunder shall be construed in accordance with and governed by and interpreted under the law
of the state of New York.
EXHIBIT J
TO THE CREDIT AGREEMENT
FORM OF SOLVENCY CERTIFICATE
To the Administrative
Agent and each of the Lenders party to the Credit Agreement referred to below:
I, the undersigned,
the Chief Financial Officer of WIREPATH LLC, a Delaware limited liability company, in that capacity only and not in my individual
capacity (and without personal liability), do hereby certify as of the date hereof, and based upon facts and circumstances as they exist
as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after the date hereof), that:
1.
This certificate is furnished to the Administrative Agent and the Lenders pursuant to Section 6.8 of the Credit Agreement, dated
as of August 4, 2017, among CRACKLE PURCHASER CORP., CRACKLE MERGER SUB I CORP., UBS AG, STAMFORD BRANCH as Administrative
Agent (in such capacity, the “Administrative Agent”), Collateral Agent, Swingline Lender and Letter of Credit Issuer
and the other parties thereto (the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in
this certificate shall have the meanings set forth in the Credit Agreement.
2.
For purposes of this certificate, the terms below shall have the following definitions:
The amount at which the assets (both
tangible and intangible), in their entirety, of the Borrower and its Subsidiaries taken as a whole would change hands between a willing
buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with
neither being under any compulsion to act.
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(b)
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“Present Fair Salable Value”
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The amount that could be obtained
by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the Borrower and its
Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under
present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
The recorded liabilities (including
contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Subsidiaries taken as a whole, as of the
date hereof after giving effect to the consummation of the Transactions (including the execution and delivery of the Credit Agreement,
the making of the Loans and the use of proceeds of such Loans on the date hereof), determined in accordance with GAAP consistently applied.
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(d)
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“Identified Contingent Liabilities”
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The maximum estimated amount of
liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other
contingent liabilities of the Borrower and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution
and delivery of the Credit Agreement, the making of the Loans and the use of proceeds of such Loans on the date hereof) (including all
fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as identified
and explained in terms of their nature and estimated magnitude by responsible officers of the Borrower.
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(e)
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“Can pay their Stated Liabilities and Identified Contingent Liabilities as they
mature”
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Borrower and its Subsidiaries taken
as a whole after giving effect to the Transactions (including the execution and delivery of the Credit Agreement, the making of the Loans
and the use of proceeds of such loans on the date hereof) have sufficient assets and cash flow to pay their respective Stated Liabilities
and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
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(f)
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“Do not have Unreasonably Small Capital”
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Borrower and its Subsidiaries taken
as a whole after giving effect to the Transactions (including the execution and delivery of the Credit Agreement, the making of the Loans
and the use of proceeds of such Loans on the date hereof) have sufficient capital to ensure that it is a going concern.
3.
For purposes of this certificate, I, or officers of Borrower under my direction and supervision, have performed the following procedures
as of and for the periods set forth below.
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(a)
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I have reviewed the financial statements (including the pro forma financial statements)
referred to in Section 6.9 of the Credit Agreement.
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(b)
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I have knowledge of and have reviewed to my satisfaction the Credit Agreement.
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(c)
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As Chief Financial Officer of Borrower, I am familiar with the financial condition of
Borrower and its Subsidiaries.
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4. Based
on and subject to the foregoing, I hereby certify on behalf of Borrower that after giving effect to the consummation of the
Transactions (including the execution and delivery of the Credit Agreement, the making of the Loans and the use of proceeds of such
Loans on the date hereof), it is my opinion that (i) each of the Fair Value and the Present Fair Salable Value of the assets of
Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) Borrower
and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iii) Borrower and its Subsidiaries taken as a
whole can pay their Stated Liabilities and Identified Contingent Liabilities as they mature.
[signature page follows]
IN WITNESS WHEREOF, Wirepath LLC
has caused this certificate to be executed on its behalf by its Chief Financial Officer this 4th day of August, 2017.
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WIREPATH LLC
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By:
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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EXHIBIT K
TO THE CREDIT AGREEMENT
FORM OF UNITED STATES
TAX COMPLIANCE CERTIFICATES1
FORM OF
TAX CERTIFICATE
(For Non-U.S. Lenders That Are Not
Partnerships For U.S. Federal Income Tax Purposes)
Credit
Agreement, dated as of August 4, 2017 (as the same may be amended, supplemented, amended and restated or otherwise modified from
time to time, the “Credit Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation, WIREPATH
LLC, a Delaware limited liability company, as the Borrower, the Lenders from time to time party thereto, UBS AG, STAMFORD
BRANCH (the “Administrative Agent”), as the Administrative Agent, Collateral Agent, Swingline Lender and
Letter of Credit Issuer, and the other parties from time to time party thereto. Capitalized terms used but not defined herein shall
have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section
5.4(d) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as
well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of
Code Section 871(h)(3)(B), and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section
864(d)(4) of the Code.
The undersigned has furnished the Administrative
Agent and the Borrower with a certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable.
By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned
shall promptly so inform the Borrower and the Administrative Agent in writing and (2) the undersigned shall have at all times furnished
the Borrower and the Administrative Agent a properly completed and currently effective certificate in either the calendar year in which
each payment is to be made to the undersigned, or in either of the two calendar years preceding such payment.
[Signature Page Follows]
1 STB
Tax to review.
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[Lender]
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By:
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Name:
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Title:
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FORM OF
TAX CERTIFICATE
(For Non-U.S. Lenders That Are Partnerships
For U.S. Federal Income Tax Purposes)
Credit Agreement, dated as of
August 4, 2017 (as the same may be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit
Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation, WIREPATH LLC, a Delaware limited liability
company, as the Borrower, the Lenders from time to time party thereto, UBS AG, STAMFORD BRANCH (the “Administrative Agent”),
as the Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer, and the other parties from time to time
party thereto. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section
5.4(d) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole
beneficial owners of such Loan(s) (as well as any note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant
to the Credit Agreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a
bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of
Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within
the meaning of Code Section 871(h)(3)(B), and (v) none of its direct or indirect partners/members is a “controlled foreign corporation”
related to the Borrower as described in Section 864(d)(4) of the Code.
The undersigned has furnished the
Administrative Agent and the Borrower with Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of
its partners/members claiming the portfolio interest exemption: (i) an Internal Revenue Service Form W- 8BEN or W-8BEN-E, as applicable
or (ii) an Internal Revenue Service Form W-8IMY accompanied by Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable from each
of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the
Borrower and the Administrative Agent in writing and (2) the undersigned shall have at all times furnished the Borrower and the Administrative
Agent in writing with a properly completed and currently effective certificate in either the calendar year in which each payment is to
be made to the undersigned, or in either of the two calendar years preceding such payment.
[Signature Page Follows]
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[Lender]
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By:
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Name:
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Title:
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[Address]
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FORM OF
TAX CERTIFICATE
(For Non-U.S. Participants That Are
Not Partnerships For U.S. Federal Income Tax Purposes)
Credit Agreement,
dated as of August 4, 2017 (as the same may be amended, supplemented, amended and restated or otherwise modified from time to time, the
“Credit Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation, WIREPATH LLC, a Delaware
limited liability company, as the Borrower, the Lenders from time to time party thereto, UBS AG, STAMFORD BRANCH (the “Administrative
Agent”), as the Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer, and the other parties
from time to time party thereto. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement.
Pursuant
to the provisions of Section 5.4(d) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and
beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning
of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Code Section
871(h)(3)(B), and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section
864(d)(4) of the Code.
The undersigned has furnished its
participating Lender with a certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable.
By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned
shall promptly so inform such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a properly
completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in
either of the two calendar years preceding such payment.
[Signature Page Follows]
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[Participant]
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By:
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Name:
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Title:
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[Address]
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FORM OF
TAX CERTIFICATE
(For Foreign Participants That Are
Partnerships For U.S. Federal Income Tax Purposes)
Credit Agreement, dated as of August
4, 2017 (as the same may be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit
Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation, WIREPATH LLC, a Delaware limited liability
company, as the Borrower, the Lenders from time to time party thereto, UBS AG, STAMFORD BRANCH (the “Administrative Agent”),
as the Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer, and the other parties from time to time party
thereto. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement.
Pursuant
to the provisions of Section 5.4(d) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner
of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole
beneficial owners of such participation, (iii) with
respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit
pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A)
of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of
Code Section 871(h)(3)(B), and (v) none of its direct or indirect partners/members is a “controlled foreign corporation”
related to the Borrower as described in Section 864(d)(4) of the Code.
The undersigned has furnished its participating
Lender with Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of its partners/members claiming
the portfolio interest exemption: (i) an Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable or (ii) an Internal Revenue Service
Form W-8IMY accompanied by an Internal Revenue Service Form W- 8BEN or W-8BEN-E, as applicable from each of such partner’s/member’s
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if
the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year
in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payment.
[Signature Page Follows]
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[Participant]
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By:
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Name:
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Title:
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[Address]
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EXHIBIT L
TO THE CREDIT AGREEMENT
FORM OF INTERCOMPANY SUBORDINATED NOTE
New York
August 4, 2017
FOR VALUE RECEIVED, each of the
undersigned, to the extent a borrower from time to time from any other entity listed on the signature page hereto (each, in such capacity,
a “Payor”), hereby promises to pay on demand to the order of such other entity listed below that is a Credit Party
(or a Person required to become a Subsidiary Guarantor pursuant to Section 9.10 of the Credit Agreement) (each, in such capacity, a “Payee”),
in lawful money of the United States of America, or in such other currency as agreed to by such Payor and such Payee, in immediately available
funds, at such location as a Payee shall from time to time designate, the unpaid principal amount of all loans and advances (including
trade payables) made by such Payee to such Payor. Each Payor promises also to pay interest on the unpaid principal amount of all such
loans and advances in like money at said location from the date of such loans and advances until paid at such rate per annum as shall
be agreed upon from time to time by such Payor and such Payee.
Capitalized terms used in this Intercompany
Subordinated Note (this “Note”) but not otherwise defined herein shall have the meanings given to them in that certain
Credit Agreement, dated as of August 4, 2017 (as the same may be amended, restated, supplemented, amended and restated or otherwise modified
from time to time, the “Credit Agreement”), among CRACKLE PURCHASER CORP., a Delaware corporation, CRACKLE
MERGER SUB I CORP., which on the Closing Date shall be merged with and into an entity to be renamed Wirepath LLC (“Wirepath”),
with Wirepath surviving such merger and with the merged company existing under the laws of the state of Delaware as the Borrower, the
banks, financial institutions and other institutional lenders and investors from time to time parties thereto, UBS AG, STAMFORD BRANCH,
as the Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent (in such capacity, the
“Collateral Agent”), Swingline Lender and Letter of Credit Issuer, and the other agents party thereto.
This Note shall be pledged by each
Payee that is a Credit Party (a “Credit Party Payee”) to the Collateral Agent (or any agent or designee thereof), for
the benefit of the Secured Parties, pursuant to the Pledge Agreement as collateral security for such Payee’s First Lien Obligations
(as defined in the Pledge Agreement). Each Payee hereby acknowledges and agrees that after the occurrence of and during the continuance
of an Event of Default (under and as defined in the Pledge Agreement), the Collateral Agent may exercise all rights of the Credit Party
Payees with respect to this Note.
Upon the commencement of any insolvency
or bankruptcy proceeding, or any receivership, liquidation, reorganization or other similar proceeding in connection therewith, relating
to any Payor owing any amounts evidenced by this Note to any Credit Party, or to any property of any such Payor, or upon the commencement
of any proceeding for voluntary liquidation, dissolution or other winding up of any such Payor, all amounts evidenced by this Note owing
by such Payor to any and all Credit Parties shall become immediately due and payable, without presentment, demand, protest or notice of
any kind.
Anything
in this Note to the contrary notwithstanding, the indebtedness evidenced by this Note owed by any Payor that is a Credit Party to
any Payee shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all First
Lien Obligations of such Payor until the Termination Date (as defined in the Security Agreement); the First Lien Obligations and
other indebtedness and obligations in connection with any renewal, refunding, restructuring or refinancing thereof, including
interest, fees and expenses thereon accruing after the commencement of any proceedings referred to in clause (i) below, whether or
not such interest, fees or expenses is an allowed claim in such proceeding, being hereinafter collectively referred to as
“Senior Indebtedness”).
(i)
In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings
in connection therewith, relative to any Payor or to its property, and in the event of any proceedings for voluntary liquidation, dissolution
or other winding up of such Payor (except as expressly permitted by the Credit Agreement), whether or not involving insolvency or bankruptcy,
then, if an Event of Default (under and as defined in the Pledge Agreement) has occurred and is continuing after prior written notice
from the Collateral Agent to the Borrower, (x) the holders of Senior Indebtedness shall be irrevocably paid in full in cash in respect
of all amounts constituting Senior Indebtedness (other than Hedging Obligations under Secured Hedging Agreements, Cash Management Obligations
under Secured Cash Management Agreements or contingent indemnification obligations) before any Payee is entitled to receive (whether directly
or indirectly), or make any demands for, any payment on account of this Note and (y) until the holders of Senior Indebtedness are irrevocably
paid in full in cash in respect of all amounts constituting Senior Indebtedness (other than Hedging Obligations under Secured Hedging
Agreements, Cash Management Obligations under Secured Cash Management Agreements or contingent indemnification obligations), any payment
or distribution to which such Payee would otherwise be entitled (other than debt securities of such Payor that are subordinated, to at
least the same extent as this Note, to the payment of all Senior Indebtedness then outstanding (such securities being hereinafter referred
to as “Restructured Debt Securities”)) shall be made to the holders of Senior Indebtedness;
(ii)
If any Event of Default (under and as defined in the Pledge Agreement) occurs and is continuing after prior written notice from
the Collateral Agent to the Borrower, then (x) no payment or distribution of any kind or character shall be made by or on behalf of the
Payor or any other Person on its behalf with respect to this Note and (y) upon the request of the Collateral Agent, no amounts evidenced
by this Note owing by any Payor to any Payee that is a Credit Party shall be forgiven or otherwise reduced in any way, other than as a
result of payment in full thereof made in cash;
(iii)
If any payment or distribution of any character, whether in cash, securities or other property (other than Restructured Debt Securities),
in respect of this Note shall (despite these subordination provisions) be received by any Payee in violation of clause (i) or (ii) above
before all Senior Indebtedness shall have been irrevocably paid in full in cash (other than Hedging Obligations under Secured Hedging
Agreements, Cash Management Obligations under Secured Cash Management Agreements or contingent indemnification obligations), such payment
or distribution shall be held in trust (segregated from other property of such Payee) for the benefit of the Collateral Agent, and shall
be paid over or delivered in accordance with the Credit Agreement and Pledge Agreement; and
(iv)
Each Payee agrees to file all claims against each relevant Payor in any bankruptcy or other proceeding in which the filing of
claims is required by law in respect of any Senior Indebtedness, and the Collateral Agent shall be entitled to all of such Payee’s
rights thereunder. If for any reason a Payee fails to file such claim at least ten Business Days prior to the last date on which such
claim should be filed, such Payee hereby irrevocably appoints each Collateral Agent as its true and lawful attorney-in-fact and is hereby
authorized to act as attorney-in-fact in such Payee’s name to file such claim or, in such Collateral Agent’s discretion,
to assign such claim to and cause proof of claim to be filed in the name of the relevant Collateral Agent or its nominee. In all such
cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Collateral
Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, each Payee hereby assigns
to the Collateral Agent all of such Payee’s rights to any payments or distributions to which such Payee otherwise would be entitled.
If the amount so paid is greater than such Payee’s liability hereunder, the Collateral Agent shall pay the excess amount to the
party entitled thereto. In addition, each Payee hereby irrevocably appoints each Collateral Agent as its attorney in fact to exercise
all of such Payee’s voting rights in connection with any bankruptcy proceeding or any plan for the reorganization or other dispositive
restructuring plan of each relevant Payor.
To the fullest extent permitted
by law, no present or future holder of Senior Indebtedness shall be prejudiced in its right to enforce the subordination of this Note
by any act or failure to act on the part of any Payor or by any act or failure to act on the part of such holder or any trustee or agent
for such holder. Each Payee and each Payor hereby agree that the subordination of this Note is for the benefit of the Collateral Agent
and the other Secured Parties. The Collateral Agent and the other Secured Parties are obligees under this Note to the same extent as if
their names were written herein as such and the respective Collateral Agent may, on behalf of itself, and the Secured Parties, proceed
to enforce the subordination provisions herein.
The indebtedness evidenced by
this Note owed by any Payor that is not a Credit Party shall not be subordinated to, and shall rank pari passu in right of payment
with, any other obligation of such Payor.
Nothing contained in the subordination
provisions set forth above is intended to or will impair, as between each Payor and each Payee, the obligations of such Payor, which are
absolute and unconditional, to pay to such Payee the principal of and interest on this Note as and when due and payable in accordance
with its terms, or is intended to or will affect the relative rights of such Payee and other creditors of such Payor other than the holders
of Senior Indebtedness.
Each Payee is hereby authorized
to record all loans and advances made by it to any Payor (all of which shall be evidenced by this Note), and all repayments or prepayments
thereof, in its books and records, such books and records constituting prima facie evidence of the accuracy of the information contained
therein; provided that the failure of any Payee to record such information shall not affect any Payor's obligations in respect
of intercompany Indebtedness extended by such Payee to such Payor.
Each Payor hereby waives presentment,
demand, protest or notice of any kind in connection with this Note. All payments under this Note shall be made without offset, counterclaim
or deduction of any kind.
It is understood that this Note shall only evidence Indebtedness.
This Note shall be binding upon each
Payor and its successors and assigns, and the terms and provisions of this Note shall inure to the benefit of each Payee and their respective
successors and assigns, including subsequent holders hereof. Notwithstanding anything to the contrary contained herein, in any other Credit
Document or in any other promissory note or other instrument, this Note replaces and supersedes any and all promissory notes or other
instruments which create or evidence any loans or advances made on, before or after the date hereof by any Payee to any other Subsidiary.
From time to time after the
date hereof, additional Subsidiaries of Holdings may become parties hereto (as Payor and/or Payee, as the case may be) by executing
a counterpart signature page hereto, which shall automatically be incorporated into this Note (each additional Subsidiary, an
“Additional Party”). Upon delivery of such counterpart signature page to the Payees, notice of which is hereby
waived by the other Payors, each Additional Party shall be a Payor and/or a Payee, as the case may be, and shall be as fully a party
hereto as if such Additional Party were an original signatory hereof. Each Payor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any other Payor or Payee hereunder. This Note shall be
fully effective as to any Payor or Payee that is or becomes a party hereto regardless of whether any other person becomes or fails
to become or ceases to be a Payor or Payee hereunder.
In the event the Collateral Agent enters
into any Customary Intercreditor Agreement, the Collateral Agent shall be authorized (without the consent of any Lender) to enter into
such amendments to this Note as may be necessary to reflect the provisions of such Customary Intercreditor Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[Signature Pages Follow]
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CRACKLE PURCHASER CORP.
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By:
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Name:
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Title:
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CRACKLE MERGER SUB I CORP.
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By:
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Name:
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Title:
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AMPLIFY HOLDINGS LLC
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By:
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Name:
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Title:
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WIREPATH HOME SYSTEMS HOLDCO LLC
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By:
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Name:
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Title:
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WIREPATH HOME SYSTEMS, LLC
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By:
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Name:
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Title:
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AMPLIFY SERVICES, LLC
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By:
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Name:
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Title:
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SUNBRITE HOLDING CORPORATION
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By:
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Name:
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Title:
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AUTONOMIC CONTROLS, INC.
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By:
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Name:
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Title:
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SUNBRITETV LLC
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By:
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EXHIBIT
M
TO THE CREDIT AGREEMENT
FORM OF PERFECTION CERTIFICATE
[See Execution Version]
EXHIBIT
N
TO THE CREDIT AGREEMENT
FORM OF NOTICE OF VOLUNTARY PREPAYMENT
[Date]
UBS AG, Stamford Branch
600
Washington Blvd., 9th Floor
Stamford, CT 06901
Attn: Structured Finance Processing
Tel: [*****]
Facsimile: [*****]
Email: [*****]
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Re:
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Wirepath LLC – Credit Agreement
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Ladies and Gentlemen:
This Notice of
Prepayment is delivered to you pursuant to Section 5.1 of the Credit Agreement, dated as of August 4, 2017 (as the same may be
amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”), among CRACKLE
PURCHASER CORP., a Delaware corporation, WIREPATH LLC, a Delaware limited liability company, the Lenders from time to time
party thereto, UBS AG, STAMFORD BRANCH (the “Administrative Agent”), as the Administrative Agent, Collateral Agent,
Swingline Lender and Letter of Credit Issuer, and the other parties from time to time party thereto.
The
undersigned Borrower hereby notifies the Administrative Agent that such Borrower shall prepay [Term Loans] [Revolving Credit Loans] [Extended
Revolving Credit Loans] [Additional/Replacement Revolving Credit Loans] [Swing Line Loans], on
, 20 , in aggregate principal amount[s] of [$[ ]
of [Term Loans] [Revolving Credit Loans] [Extended Revolving Credit Loans] [Additional/Replacement Revolving Credit Loans] [Swing Line
Loans] outstanding as ABR Loans] [$[ ]
of [Term Loans] [Revolving Credit Loans] [Extended Revolving Credit Loans] [Additional/Replacement Revolving Credit Loans] [Swing Line
Loans] outstanding as Eurodollar Loans].
[Signature page follows]
The undersigned Borrower has caused
this Notice of Prepayment to be executed and delivered by its duly authorized officers this day of ,
20 .
Exhibit 10.3
Execution Version
AMENDMENT AGREEMENT
AMENDMENT
AGREEMENT dated as of November 1, 2017 (this “Amendment Agreement”), in respect of that certain Credit Agreement
dated as of August 4, 2017 (in effect immediately prior to this Amendment Agreement, the “Credit Agreement”) among
Crackle Purchaser Corp., as Holdings (“Holdings”), Wirepath LLC, as Borrower (the “Borrower”), UBS
AG, Stamford Branch, as Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent and Swingline
Lender, the lending institutions party thereto from time to time as Lenders and the other parties party thereto from time to time.
WHEREAS, pursuant
to Section 13.1 of the Credit Agreement, any provision of the Credit Agreement may be amended by an agreement in writing entered into
by Holdings, the Borrower and the
Administrative Agent to cure any ambiguity,
omission, defect or inconsistency (each, a “Technical Amendment”) so long as, in each case, the Lenders shall have
received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within
such five Business Days period, a written notice from the Required Lenders stating that the Required Lenders object to such Technical
Amendment; and
WHEREAS, the Borrower
and the Administrative Agent desire to effect certain Technical Amendments to the Credit Agreement, subject to the terms and conditions
set forth herein and in the Credit Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined
Terms; References. Unless otherwise specifically defined herein, each term used herein which is defined in the Credit Agreement has
the meaning assigned to such term in the Credit Agreement. The rules of construction and other interpretive provisions specified in Sections
1.2, 1.5, 1.6 and 1.7 of the Credit Agreement shall apply to this Amendment Agreement, including terms defined in the preamble and recitals
hereto.
SECTION 2. Amendments
to Credit Agreement. Each of the parties hereto agrees that, effective on the Amendment Effective Date (as defined below), the Credit
Agreement shall be amended as set forth in the pages of the Credit Agreement attached as Exhibit A hereto (with text in the Credit
Agreement attached as Exhibit A hereto indicated as being (I) deleted or “stricken text” textually in the same manner
as the following example: stricken text; and (II) new or added textually in the same
manner as the following example: double-underlined text) (such Technical Amendments set forth
in Exhibit A hereto, collectively, the “Credit Agreement Amendments”).
SECTION 3. Effect
of Amendments; Reaffirmation; Etc. (a) Except as expressly set forth herein, this Amendment Agreement and the Credit Agreement Amendments
effected hereby shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies
of the Lenders or the Agents under the Amended Credit Agreement or under any other Credit Document, and shall not alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement as amended pursuant
to this Amendment Agreement or any other provision of the Credit Agreement as amended pursuant to this Amendment Agreement or of any other
Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.
(b)
Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar
reference and each reference to “this Agreement” and each other similar reference contained in the Credit
Agreement shall, after the Amendment Effective
Date, refer to the Credit Agreement as amended by the Credit Agreement Amendments (as the same may be further amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with its terms, the “Amended Credit Agreement”).
From and after the Amendment Effective Date, each reference to the “Credit Agreement” in each Credit Document shall refer
to the Amended Credit Agreement contemplated hereby.
(c)
From and after the Amendment Effective Date, this Amendment Agreement shall be a Credit Document.
SECTION 4. Effectiveness.
This Amendment Agreement shall become effective on the first date (the “Amendment Effective Date”) on which each of
the following conditions shall have been satisfied:
(a) the Administrative Agent
shall have received from Holdings and the Borrower a counterpart of this Amendment Agreement signed on behalf of such Credit Party (which
may include telecopy or electronic transmission of a signed signature page of this Amendment Agreement); and
(b) (x) the Administrative
Agent shall have delivered to the Lenders written notice of the Credit Agreement Amendments and (y) the Administrative Agent shall not
have received, on or prior to the date that is five Business Days from the date of such notice, a written notice from the Required Lenders
stating that the Required Lenders object to the Credit Agreement Amendments.
SECTION 5. Governing Law.
THIS AMENDMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 6. Miscellaneous;
Counterparts. The provisions of Sections 13.2, 13.13, 13.15 and 13.16 shall apply mutatis mutandis to this Amendment Agreement.
This Amendment 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. Delivery of an executed signature page
to this Amendment Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually signed counterpart
of this Amendment Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first above
written.
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CRACKLE PURCHASER CORP., as
Holdings
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By:
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/s/ Michael Carlet
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Name: Michael Carlet
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Title: Chief Financial officer and Secretary
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WIREPATH LLC, as Borrower
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By:
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/s/ Michael Carlet
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Name: Michael Carlet
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Title: Chief Financial officer and Secretary
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[Signature Page to
Amendment Agreement]
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UBS AG, STAMFORD BRANCH, as Administrative Agent
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By:
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/s/ Houssem Daly
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Name: Houssem Daly
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Title: Associate Director Banking Products Services, US
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By:
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/s/ Darlene Arias
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Name: Darlene Arias
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Title: Director
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[Signature Page to
Amendment Agreement]
Exhibit A
Credit Agreement Amendments
[see attached]
any such consolidating information), and, for the avoidance
of doubt, without modification as to the scope of audit.
(b)
Quarterly Financial Statements. As soon as available and in any event on or before the date that is 45 days after the end
of each of the first three quarterly accounting periods in each fiscal year of the Borrower (or, in the case of each of the quarters
ending September 30, 2017, March 31, 20172018
and June 30, 20172018,
the date that is 60 days after the end of such quarter), the consolidated balance sheet of the Borrower and its consolidated Subsidiaries
and, if different, the Borrower and the Restricted Subsidiaries, in each case as at the end of such quarterly period and the related
consolidated statement of income for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last
day of such quarterly period, and the related consolidated statement of cash flows for the elapsed portion of the fiscal year ended with
the last day of such quarterly period, and setting forth (other than for the quarterly periods ending September 30, 2017, March 31, 20172018
and June 30, 20172018
(with respect to which, for the avoidance of doubt, no comparative consolidated figures or reconciliations will be required))
comparative consolidated figures for the related periods in the prior fiscal year or, in the case of such consolidated balance sheet,
for the last day of the prior fiscal year (or in lieu of such financial statements of the Borrower and the Restricted Subsidiaries, a
detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and
the Borrower and its consolidated Subsidiaries on the other hand), all in reasonable detail and all of which shall be certified by an
Authorized Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations and cash
flows of the Borrower and its consolidated Subsidiaries (and, if applicable, the Borrower and the Restricted Subsidiaries) in accordance
with GAAP, subject to changes resulting from audit and normal year-end audit adjustments and to the absence of footnotes and the inclusion
of any explanatory note. Notwithstanding the foregoing, the obligations in this Section 9.1(b) may be satisfied with respect to financial
information of the Borrower and its consolidated Subsidiaries by furnishing (A) the applicable financial statements of Holdings (or any
Parent Entity thereof) or (B) the Borrower’s or Holdings’ (or any Parent Entity thereof), as applicable, Form 10-Q filed
with the SEC; provided that, with respect to each of clauses (A) and (B), to the extent such information relates to Holdings (or
any such Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences
between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and
its consolidated Subsidiaries on a standalone basis (and, if different, the Borrower and the Restricted Subsidiaries), on the other hand.
(c)
Budget. No later than five Business Days following the delivery by the Borrower of the financial statements required under
Section 9.1(a), beginning at the time of the delivery of such financial statements for the fiscal year ending December 31, 2017, a detailed
quarterly budget of the Borrower and its Restricted Subsidiaries in reasonable detail for the current fiscal year as customarily prepared
by management of the Borrower for its internal use (but including, in any event, only a projected consolidated statement of income of
the Borrower and its Restricted Subsidiaries for the current fiscal year and not a projected consolidated balance sheet or statement of
projected cash flow) and setting forth the principal assumptions upon which such budget is based (provided, that no such budgets
shall be required to be delivered for the fiscal year which began January 1, 2017). It is understood and agreed that any financial or
business projections furnished by any Credit Party (i)(A) are subject to significant uncertainties and contingencies, which may be beyond
the control of the Credit Parties, (B) no assurance is given by the Credit Parties that the results or forecast in any such projections
will be realized and (C) the actual results may differ from the forecast results set forth in such projections and such differences may
be material and (ii) are not a guarantee of performance.
(d)
Officer’s Certificates. No later than five Business Days following the delivery of the financial statements provided
for in Sections 9.1(a) and 9.1(b), a certificate of an Authorized Officer of the Borrower to the effect that no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth
(i) during any fiscal quarter during which the Financial Performance Covenant is applicable, the calculations required to establish whether
the Borrower was in compliance with the provisions of the Financial Performance Covenant as at the end of such fiscal year or period,
as the case may be, beginning with the fiscal period
-132-
Exhibit 10.4
EXECUTION VERSION
INCREMENTAL AGREEMENT NO. 1
INCREMENTAL
AGREEMENT NO. 1, dated as of February 5, 2018 (this “Incremental Agreement”), in respect of that certain Credit Agreement,
dated as of August 4, 2017 (as amended by that certain Amendment Agreement dated as of November 1, 2017, and as in effect prior to giving
effect to this Incremental Agreement, the “Credit Agreement”), among Wirepath LLC, a Delaware limited liability company
(the “Borrower”), Crackle Purchaser LLC (f/k/a Crackle Purchaser Corp.), a Delaware limited liability company (“Holdings”),
the Lenders from time to time party thereto, the Letter of Credit Issuers from time to time party thereto, UBS AG, Stamford Branch, as
the Administrative Agent, the Collateral Agent and Swingline Lender, and the other parties from time to time party thereto.
WHEREAS, the
Borrower desires, (i) pursuant to the proviso to Section 2.14(b) of the Credit Agreement, to obtain Incremental Term Loans, the proceeds
of which shall be used to prepay in full all of the Term Loans (the “Existing Term Loans”) outstanding under the Credit
Agreement as of the First Incremental Agreement Effective Date (as defined below) (the “Refinancing”) and to pay other
related amounts in connection with the Refinancing, (ii) to amend the Applicable Margin for the Revolving Credit Loans and (iii) to amend
Section 2.10 of the Credit Agreement to address the LIBOR successor rate;
WHEREAS, (a)
the New Term Lender (as defined below) have agreed to provide such Incremental Term Loans in an aggregate principal amount equal to $264,337,500
minus the aggregate Rollover Amount (as defined below) (such Incremental Term Loans, together with any term loans deemed made as set forth
in clause (b) below, the “Tranche B Term Loans”) and (b) each Rollover Lender (as defined below) will have all of its
outstanding Existing Term Loans (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First
Incremental Agreement Effective Date) converted into a like principal amount of Tranche B Term Loans effective as of the First Incremental
Agreement Effective Date, in each case in accordance with the terms and conditions set forth herein and in the Credit Agreement;
WHEREAS, UBS
Securities LLC and SunTrust Robinson Humphrey, Inc. have agreed to act in the roles and pursuant to the titles set forth in the Engagement
Letter (as defined below) in respect of such Incremental Term Loans (acting in their capacity in such roles and titles, the “Arrangers”);
WHEREAS,
in accordance with Section 2.14(e) of the Credit Agreement and, as applicable, Section 13.1 of the Credit Agreement, the Borrower, Holdings,
the Administrative Agent and the Tranche B Term Lenders have agreed to amend the Credit Agreement in connection with, and to facilitate
the incurrence of, such Incremental Term Loans and Tranche B Term Loans; and
WHEREAS, in
accordance with Section 13.1 of the Credit Agreement, the Borrower, Holdings, the Administrative Agent and all Revolving Credit Lenders
have agreed to amend the Credit Agreement to (i) amend the Applicable Margin for the Revolving Credit Loans and (ii) address the LIBOR
successor rate;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1.
Defined Terms; References. (a) Unless otherwise specifically defined herein, each term used herein which is defined in the Amended
Credit Agreement (as defined below) has the meaning assigned to such term in the Amended Credit Agreement. The rules of construction and
other interpretive provisions specified in Sections 1.2, 1.5, 1.6 and 1.7 of the Amended Credit Agreement shall apply to this Incremental
Agreement, including terms defined in the preamble and recitals hereto.
(b) As used
in this Incremental Agreement, the following terms have the meanings specified below:
“Amended
Credit Agreement” shall mean the Credit Agreement, as amended by this Incremental Agreement.
“Existing
Term Lender” shall mean a Lender with an Existing Term Loan on the First Incremental Agreement Effective Date, immediately prior
to giving effect to this Incremental Agreement.
“Existing
Term Loan Prepayment Amount” shall mean, for each Existing Term Lender, the sum of (i) the aggregate principal amount of Existing
Term Loans owing to such Existing Term Lender on the First Incremental Agreement Effective Date plus (ii) all accrued and unpaid
interest on such Existing Term Lender’s Existing Term Loans as of the First Incremental Agreement Effective Date plus (iii)
any other amounts owing to such Existing Term Lender under the Credit Documents as of the First Incremental Agreement Effective Date,
including any amounts owing pursuant to Section 2.11 of the Credit Agreement.
“New
Term Lender” shall mean each Lender identified on the signature pages hereto that is not a Rollover Lender.
“Tranche
B Term Lenders” shall mean the New Term Lender and each Rollover Lender.
Section 2. First Incremental Agreement Effective Date Transactions.
(a) With
effect from and including the First Incremental Agreement Effective Date, each Tranche B Term Lender shall become party to the
Amended Credit Agreement as a “Lender” and an “Initial Term Loan Lender”, shall have an Incremental Term
Loan Commitment (i) in the case of the New Term Lender, in an aggregate principal amount equal to $264,337,500 minus the aggregate
Rollover Amount and (ii) in the case of each other Tranche B Term Lender, in the amount equal to such Lender’s Rollover Amount
(each such Incremental Term Loan Commitment, a “Tranche B Term Loan Commitment”), and shall have all of the
rights and obligations of a “Lender” and an “Initial Term Loan Lender” under the Amended Credit Agreement
and the other Credit Documents.
(b)
On the First Incremental Agreement Effective Date, each Existing Term Lender shall cease to be a Lender party to the Credit Agreement
(and, for the avoidance of doubt, shall not be a party to the Amended Credit Agreement with respect to Initial Term Loans (except to the
extent that it shall subsequently become party thereto (i) pursuant to an Assignment and Acceptance entered into with any Lender in accordance
with the terms of the Amended Credit Agreement, (ii) with respect to any Rollover Lender, pursuant to a “cashless roll” in
accordance with this Incremental Agreement or (iii) through other means under the terms and provisions of the Amended Credit Agreement)),
and all accrued and unpaid fees and other amounts payable under the Credit Agreement for the account of each Existing Term Lender shall
be due and payable on such date; provided that the provisions of Sections 2.10, 2.11, 5.4 and 13.5 of the Credit Agreement shall
continue to inure to the benefit of each Existing Term Lender after the First Incremental Agreement Effective Date.
(c)
Each Tranche B Term Loan made on the First Incremental Agreement Effective Date shall have an initial Interest Period ending on
March 29, 2018. The Tranche B Term Lenders hereby consent to such Interest Period.
(d) On the First Incremental Agreement Effective Date:
(i)
Each Tranche B Term Lender, severally and not jointly, shall make (or in the case of any Rollover Lender, be deemed to make) an
Incremental Term Loan to the Borrower in accordance with this Section 2(d) and Section 2.1 of the Credit Agreement by delivering (or in
the case of any Rollover Lender, being deemed to deliver) to the Administrative Agent immediately available funds in an amount equal to
its Tranche B Term Loan Commitment;
(ii) the Borrower shall prepay in full the Existing Term Loans by:
(A)
delivering to the Administrative Agent funds in an amount equal to the excess, if any, of (1) the aggregate of the Existing Term
Loan Prepayment Amounts for all of the Existing Term Lenders (except to the extent otherwise agreed by any Existing Term Lender) over
(2) the sum of the New Lender Net Funding Amount (as defined below) plus (without duplication of any New Lender Net Funding Amount) the
Rollover Amount (such excess, the “Borrower’s Payment”); and
(B)
directing the Administrative Agent to apply the funds made available to the Administrative Agent pursuant to Section 2(d)(i) hereof,
net of fees and expenses as agreed by the Borrower and the Administrative Agent not otherwise paid by or on behalf of the Borrower (the
“New Lender Net Funding Amount”), along with the Borrower’s Payment, if any, and the Rollover Amount, to prepay
in full the Existing Term Loans; and
(iii)
the Administrative Agent shall apply the New Lender Net Funding Amount and the Borrower’s Payment to pay to each Existing
Term Lender an amount equal to such Existing Term Lender’s Existing Term Loan Prepayment Amount (except as otherwise agreed by such
Existing Term Lender).
Section 2A.
Cashless Roll. Any Existing Term Lender may elect for a “cashless roll” of 100% (or such lesser amount as may be notified
to such Existing Term Lender by the Administrative Agent prior to the First Incremental Agreement Effective Date) of its Existing Term
Loans into Tranche B Term Loans in the same principal amount by indicating such election for a cashless settlement option on its signature
page hereto (such electing Existing Term Lenders, the “Rollover Lenders”). It is understood and agreed that (a) simultaneously
with the deemed making of Tranche B Term Loans by each Rollover Lender and the payment to such Rollover Lender of all accrued and unpaid
fees and other amounts in respect of the Existing Term Loan in respect of such Rollover Amount, such elected amount (or such lesser amount
as may be notified to such Rollover Lender by the Administrative Agent prior to the First Incremental Agreement Effective Date) of the
Existing Term Loans held by such Rollover Lender (the “Rollover Amount”) shall be deemed to be extinguished, repaid
and no longer outstanding and such Rollover Lender shall thereafter hold a Tranche B Term Loan in an aggregate principal amount equal
to such Rollover Lender’s Rollover Amount, (b) no Rollover Lender shall receive any prepayment being made to other Existing Term
Lenders holding Existing Term Loans from the proceeds of the Tranche B Term Loans to the extent of such Rollover Lender’s Rollover
Amount and (c) any Existing Term Loan held by a Rollover Lender that is not so allocated to such Rollover Lender as a Rollover Amount
shall be repaid in full on the First Incremental Agreement Effective Date together with all accrued and unpaid amounts owing to such Existing
Term Lender in respect of such amount.
Section 3.
Amendment; Borrowings on First Incremental Agreement Effective Date. (a) Each of the parties hereto agrees that, effective on the
First Incremental Agreement Effective Date, the Credit Agreement shall be amended to delete the stricken text (indicated textually in
the same manner as the following example: stricken text) and to add the double-underlined
text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.
(b)
With effect from the effectiveness of this Incremental Agreement, each Tranche B Term Loan made on the First Incremental Agreement
Effective Date in accordance with Section 2(d) hereof shall constitute, for all purposes of the Amended Credit Agreement, a Term Loan
made pursuant to the Amended Credit Agreement and this Incremental Agreement; provided that each such Tranche B Term Loan shall
constitute an “Initial Term Loan” for all purposes of the Amended Credit Agreement, and all provisions of the Amended Credit
Agreement applicable to Initial Term Loans shall be applicable to such Tranche B Term Loans.
(c)
The Tranche B Term Loan Commitments provided for hereunder shall terminate on the First Incremental Agreement Effective Date immediately
upon the borrowing of the Tranche B Term Loans pursuant to Section 2(d).
Section 4.
Effect of Amendment; Reaffirmation; Etc. (a) Except as expressly set forth herein or in the Amended Credit Agreement, this Incremental
Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the
Lenders or the Agents under the Credit Agreement or under any other Credit Document and shall not alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit
Agreement or of any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and
effect. Without limiting the foregoing, (i) each Credit Party acknowledges and agrees that (A) each Credit Document to which it is a party
is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms (in the case of the Credit
Agreement, as amended hereby) and (B) the Security Documents do, and all of the Collateral does, and in each case shall continue to, secure
the payment of all First Lien Obligations (or equivalent terms in the Security Documents) (including, for the avoidance of doubt, the
Tranche B Term Loans made on the First Incremental Agreement Effective Date) on the terms and conditions set forth in the Security Documents,
and hereby confirms and, to the extent necessary, ratifies the security interests granted by it pursuant to the Security Documents to
which it is a party and (ii) each Guarantor hereby confirms and ratifies its continuing unconditional obligations as Guarantor under the
Guarantee with respect to all of the First Lien Obligations (including, for the avoidance of doubt, the Tranche B Term Loans made on the
First Incremental Agreement Effective Date).
(b) This Incremental
Agreement constitutes an “Incremental Agreement” and “Credit Document” (each as defined in the Credit Agreement).
Section 5.
Representations of Credit Parties. Each of the Credit Parties hereby represents and warrants that, on the First Incremental Agreement
Effective Date, immediately prior to and immediately after giving effect to the transactions contemplated by this Incremental Agreement,
including the borrowing of Tranche B Term Loans provided for herein and the use of proceeds thereof:
(a) all representations and warranties made by any Credit Party contained herein or in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such representations and warranties had been made on and as of the First
Incremental Agreement Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case
such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where
such representations and warranties are qualified by materiality, Material Adverse Effect, or similar language, in which case such representation
or warranty shall be true and correct in all respects after giving effect to such qualification);
(b) no Default or Event of Default shall have occurred and be continuing; and
(c) the Credit Parties and their Subsidiaries on a consolidated basis are Solvent.
Section
6. Governing Law. THIS INCREMENTAL AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED 5 BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.
Miscellaneous. Sections 13.13 and 13.15 of the Credit Agreement are incorporated herein by reference and apply mutatis mutandis.
Section 8.
Counterparts. This Incremental Agreement may be executed by one or more of the parties to this Incremental Agreement on any number
of separate counterparts (including by facsimile or other electronic transmission (e.g., a “pdf” or “tif”)), and
all of said counterparts taken together shall be deemed to constitute one and the same instrument.
Section 9.
Effectiveness. This Incremental Agreement, and the obligation of each Tranche B Term Lender to make the Incremental Term Loan to be
made by it pursuant to Section 2(d)(i) of this Incremental Agreement, shall become effective on the date (the “First Incremental
Agreement Effective Date”) when each of the following conditions shall have been satisfied:
(a) the
Administrative Agent shall have received from each Credit Party, the Administrative Agent, each Tranche B Term Lender and each
Revolving Credit Lender either (i) a counterpart of the Incremental Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page
of this Incremental Agreement) that such party has signed a counterpart of this Incremental Agreement;
(b)
the Borrower shall have paid all fees required to be paid to the Arrangers in connection with this Incremental Agreement as separately
agreed;
(c) the
Administrative Agent and the Arrangers shall have received payment for all reasonable and documented costs and expenses required to
be paid or reimbursed under Section 13.5 of the Credit Agreement or that certain Engagement Letter, dated as of January 22, 2018
(the “Engagement Letter”) among the Borrower, Holdings and the Arrangers for which invoices have been presented a
reasonable period of time prior to the First Incremental Agreement Effective Date;
(d)
to the extent required pursuant to this Incremental Agreement, the Administrative Agent shall have received the Borrower’s
Payment;
(e)
the representations and warranties set forth in Section 5 of this Incremental Agreement shall be true and correct; and
(f) the Administrative Agent shall have received:
(i)
a certificate of each Credit Party, dated the First Incremental Agreement Effective Date, substantially consistent with the certificates
delivered on the Closing Date pursuant to Section 6.5 of the Credit Agreement or otherwise reasonably acceptable to the Administrative
Agent;
(ii)
a certificate of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization
of each Credit Party;
(iii) a written Notice of Borrowing in respect
of the Tranche B Term Loans; and
(iv) a written notice of prepayment in respect of the Initial Term Loans; and
(v) a legal opinion of Simpson Thacher
& Bartlett LLP, counsel to Holdings, the Borrower and its Subsidiaries, in form and substance reasonably satisfactory to the
Administrative Agent.
Section 10.
No Novation. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the
Credit Agreement or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or
by instruments executed concurrently herewith and except to the extent repaid as provided herein. Nothing implied in this Incremental
Agreement or in any other document contemplated hereby shall discharge or release the Lien or priority of any Security Document or any
other security therefor or otherwise be construed as a release or other discharge of any of the Credit Parties under any Credit Document
from any of its obligations and liabilities as a borrower, guarantor or pledgor under any of the Credit Documents, except, in each case,
to any extent modified hereby and except to the extent repaid as provided herein.
[SIGNATURE PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Incremental Agreement to be duly executed by their respective authorized officers
as of the day and year first above written.
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CRACKLEPURCHASERLLC
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[*****]
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[*****]
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Title:
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[*****]
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WIREPATH LLC
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[*****]
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[*****]
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Title:
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[*****]
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[Signature Page to Incremental
Agreement]
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WIREPATH HOME SYSTEMS, LLC
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By:
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[*****]
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Name:
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[*****]
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Title:
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[*****]
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AMPLIFY SERVICES, LLC
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By:
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[*****]
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Name:
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[*****]
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Title:
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[*****]
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SUNBRITE HOLDING CORPORATION
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By:
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[*****]
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Name:
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[*****]
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Title:
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[*****]
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AUTONOMIC CONTROLS, INC.
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By:
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[*****]
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Name:
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[*****]
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Title:
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[*****]
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SUNBRITE TV LLC
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By:
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[*****]
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Name:
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[*****]
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Title:
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[*****]
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[Signature Page to Incremental
Agreement]
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UBS AG, STAMFORD BRANCH,
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as Administrative Agent
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By
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[*****]
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Name: [*****]
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Title: [*****]
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By
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[*****]
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Name: [*****]
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Title: [*****]
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[Signature Page to Incremental
Agreement]
[Signature Pages of Tranche B Term Lenders and Revolving
Credit Lenders to be kept on file by the Administrative Agent]
Exhibit A
[Amendments to Credit Agreement attached]
CREDIT AGREEMENT
Dated as of August 4, 2017,
as
amended by Amendment Agreement, dated as of November 1, 2017,
as
amended by Incremental Agreement No. 1, dated as of February 5, 2018
among
CRACKLE PURCHASER CORP.LLC,
as Holdings,
CRACKLE MERGER SUB I CORP.,
as the initial Borrower, which on the Closing Date shall
be merged with and into an entity to be renamed WIREPATH LLC (with the entity
to be
renamed WIREPATH LLC as the surviving entity of such merger and the Borrower)
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
UBS AG, STAMFORD BRANCH,
as Administrative Agent,
Collateral Agent and Swingline Lender,
UBS SECURITIES LLC and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint Bookrunners
for the Initial Term Loan Facility
UBS SECURITIES LLC and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint Bookrunners
for the Revolving Credit Facility
Table of Contents
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Page
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SECTION 1.
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DEFINITIONS
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2
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|
1.2
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Other Interpretive Provisions
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75
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1.5
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References to Agreements, Laws, Etc.
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77
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1.7
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Timing of Payment or Performance
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77
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1.8
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Currency Equivalents Generally
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77
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1.9
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Classification of Loans and Borrowings
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78
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1.10
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Letter of Credit Amounts
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78
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1.11
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Limited Condition Acquisitions
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78
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1.12
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Pro Forma and Other Calculations
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79
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SECTION 2.
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AMOUNT
AND TERMS OF CREDIT FACILITIES
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81
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2.2
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Minimum Amount of Each Borrowing; Maximum Number of Borrowings
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83
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2.3
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Notice of Borrowing
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83
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2.4
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Disbursement of Funds
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84
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2.5
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Repayment of Loans; Evidence of Debt
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85
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2.6
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Conversions and Continuations
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86
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2.7
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Pro Rata Borrowings
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87
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2.10
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Increased Costs, Illegality, Etc.
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88
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2.12
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Change of Lending Office
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91
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Page
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2.13
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Notice of Certain Costs
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91
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2.14
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Incremental Facilities
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91
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2.15
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Extensions of Term Loans, Revolving Credit Loans and Revolving
Credit Commitments and Additional/Replacement Revolving Credit Loans and Additional/Replacement Revolving Credit Commitments
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95
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2.16
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Defaulting Lenders
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99
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2.17
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Term Loan Exchange Notes
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101
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SECTION 3.
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LETTERS OF CREDIT
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103
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3.1
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Issuance of Letters of Credit
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103
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3.2
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Letter of Credit Requests
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104
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3.3
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Letter of Credit Participations
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105
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3.4
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Agreement to Repay Letter of Credit Drawings
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105
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3.6
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New or Successor Letter of Credit Issuer
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108
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3.7
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Role of Letter of Credit Issuer
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109
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3.9
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Conflict with Issuer Documents
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110
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3.10
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Letters of Credit Issued for Restricted Subsidiaries
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110
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3.12
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Applicability of ISP and UCP
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111
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SECTION 4.
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FEES; COMMITMENT REDUCTIONS AND TERMINATIONS
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111
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4.2
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Voluntary Reduction of Commitments
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112
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4.3
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Mandatory Termination of Commitments
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113
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5.1
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Voluntary Prepayments
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114
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5.2
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Mandatory Prepayments
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115
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5.3
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Method and Place of Payment
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119
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Page
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5.5
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Computations of Interest and Fees
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122
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5.6
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Limit on Rate of Interest
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123
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SECTION 6.
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CONDITIONS PRECEDENT TO INITIAL CREDIT EVENT
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123
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6.4
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Structure and Terms of the Transaction; No Material Adverse Effect
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125
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6.5
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Closing Certificates
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125
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6.6
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Corporate Proceedings
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125
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6.7
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Corporate Documents
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125
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6.8
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Solvency Certificate
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125
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6.9
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Financial Statements
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125
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6.11
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Fees and Expenses
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125
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6.12
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Specified Representations
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126
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SECTION 7.
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CONDITIONS PRECEDENT TO ALL CREDIT EVENTS
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126
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7.1
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No Default; Representations and Warranties
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126
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7.2
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Notice of Borrowing; Letter of Credit Request
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126
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SECTION 8.
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REPRESENTATIONS, WARRANTIES AND AGREEMENTS
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127
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8.2
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Corporate Power and Authority; Enforceability
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127
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8.5
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Margin Regulations
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127
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8.6
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Governmental and Third Party Approvals
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127
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8.7
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Investment Company Act
|
128
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8.8
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True and Complete Disclosure
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128
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8.9
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Financial Statements
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128
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Page
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8.10
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Tax Returns and Payments, Etc.
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129
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8.11
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Compliance with ERISA
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129
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8.12
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Subsidiaries
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130
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8.13
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Intellectual Property
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130
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8.14
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Environmental Laws
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130
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8.15
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Properties, Assets and Rights
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130
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8.16
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Solvency
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131
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8.17
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Material Adverse Change
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131
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8.18
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Use of Proceeds
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131
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8.19
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Anti-Corruption Laws
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131
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8.20
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Sanctioned Persons
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131
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8.21
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PATRIOT Act
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131
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8.22
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Labor Matters
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131
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8.23
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Subordination of Junior Financing
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132
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8.24
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No Default
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132
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SECTION 9.
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AFFIRMATIVE COVENANTS
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132
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9.1
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Information Covenants
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132
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9.2
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Books, Records and Inspections
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135
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9.3
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Maintenance of Insurance
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135
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9.4
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Payment of Taxes
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136
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9.5
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Consolidated Corporate Franchises
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136
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9.6
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Compliance with Statutes
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136
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9.7
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ERISA
|
136
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9.8
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Good Repair
|
137
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9.9
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End of Fiscal Years; Fiscal Quarters
|
137
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9.10
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Additional Guarantors and Grantors
|
137
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9.11
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Pledges of Additional Stock and Evidence of Indebtedness
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137
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9.12
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Use of Proceeds
|
138
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Page
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9.13
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Changes in Business
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138
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9.14
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Further Assurances
|
138
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9.15
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Designation of Subsidiaries
|
140
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9.16
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Maintenance of Ratings
|
140
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|
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9.17
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Post-Closing Obligations
|
140
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|
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|
|
|
SECTION 10.
|
NEGATIVE COVENANTS
|
140
|
|
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10.1
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Limitation on Indebtedness
|
140
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|
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10.2
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Limitation on Liens
|
148
|
|
|
|
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10.3
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Limitation on Fundamental Changes
|
154
|
|
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10.4
|
Limitation on Sale of Assets
|
155
|
|
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10.5
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Limitation on Investments
|
159
|
|
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10.6
|
Limitation on Restricted Payments
|
163
|
|
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|
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|
10.7
|
Limitations on Debt Payments and Amendments
|
169
|
|
|
|
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10.8
|
Negative Pledge Clauses
|
170
|
|
|
|
|
|
10.9
|
Passive Holding Company; Etc.
|
172
|
|
|
|
|
|
10.10
|
Consolidated First Lien Debt to Consolidated EBITDA Ratio
|
173
|
|
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10.11
|
Transactions with Affiliates
|
174
|
|
|
|
|
|
SECTION 11.
|
EVENTS OF DEFAULT
|
176
|
|
|
|
|
|
11.1
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Payments
|
176
|
|
|
|
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|
11.2
|
Representations, Etc.
|
177
|
|
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|
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|
11.3
|
Covenants
|
177
|
|
|
|
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|
11.4
|
Default Under Other Agreements
|
177
|
|
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|
11.5
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Bankruptcy, Etc.
|
177
|
|
|
|
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|
11.6
|
ERISA
|
178
|
|
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|
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|
11.7
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Guarantee
|
178
|
|
|
|
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|
11.8
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Security Document
|
178
|
|
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11.9
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Judgments
|
178
|
|
|
|
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11.10
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Change of Control
|
178
|
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Page
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11.11
|
Borrower’s Right to Cure
|
179
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|
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SECTION 12.
|
THE ADMINISTRATIVE AGENT AND THE COLLATERAL
AGENT
|
180
|
|
|
|
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|
12.1
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Appointment
|
180
|
|
|
|
|
|
12.2
|
Limited Duties
|
180
|
|
|
|
|
|
12.3
|
Binding Effect
|
181
|
|
|
|
|
|
12.4
|
Delegation of Duties
|
181
|
|
|
|
|
|
12.5
|
Exculpatory Provisions
|
181
|
|
|
|
|
|
12.6
|
Reliance by Administrative Agent
|
181
|
|
|
|
|
|
12.7
|
Notice of Default
|
182
|
|
|
|
|
|
12.8
|
Non-Reliance on Administrative Agent and Other Lenders
|
182
|
|
|
|
|
|
12.9
|
Indemnification
|
182
|
|
|
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|
|
12.10
|
Agent in Its Individual Capacity
|
183
|
|
|
|
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|
12.11
|
Successor Agent
|
183
|
|
|
|
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|
12.12
|
Withholding Tax
|
184
|
|
|
|
|
|
12.13
|
Duties as Collateral Agent and as Paying Agent
|
184
|
|
|
|
|
|
12.14
|
Authorization to Release Liens and Guarantees
|
185
|
|
|
|
|
|
12.15
|
Intercreditor Agreements
|
185
|
|
|
|
|
|
12.16
|
Secured Cash Management Agreements and Secured Hedge Agreements
|
185
|
|
|
|
|
|
12.17
|
Administrative Agent May File Proofs of Claim
|
185
|
|
|
|
|
|
SECTION 13.
|
MISCELLANEOUS
|
186
|
|
|
|
|
|
13.1
|
Amendments and Waivers
|
186
|
|
|
|
|
|
13.2
|
Notices; Electronic Communications
|
189
|
|
|
|
|
|
13.3
|
No Waiver; Cumulative Remedies
|
191
|
|
|
|
|
|
13.4
|
Survival of Representations and Warranties
|
191
|
|
|
|
|
|
13.5
|
Payment of Expenses; Indemnification
|
192
|
|
|
|
|
|
13.6
|
Successors and Assigns; Participations and Assignments
|
194
|
|
|
|
|
|
13.7
|
Replacements of Lenders Under Certain Circumstances
|
200
|
|
|
|
|
|
13.8
|
Adjustments; Set-off
|
201
|
|
|
|
Page
|
|
|
|
|
|
13.9
|
Counterparts
|
202
|
|
|
|
|
|
13.10
|
Severability
|
202
|
|
|
|
|
|
13.11
|
Integration
|
202
|
|
|
|
|
|
13.12
|
GOVERNING LAW
|
202
|
|
|
|
|
|
13.13
|
Submission to Jurisdiction; Waivers
|
202
|
|
|
|
|
|
13.14
|
Acknowledgments
|
203
|
|
|
|
|
|
13.15
|
WAIVERS OF JURY TRIAL
|
203
|
|
|
|
|
|
13.16
|
Confidentiality
|
203
|
|
|
|
|
|
13.17
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Release of Collateral and Guarantee Obligations; Subordination of Liens
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204
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13.18
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USA PATRIOT ACT
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205
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13.19
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Legend
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205
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13.20
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Payments Set Aside
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205
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13.21
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Acknowledgement and Consent to Bail-In of EEA Financial Institutions
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206
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13.22
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Execution by Target, Amplify and Subsidiaries
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206
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SCHEDULES
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Schedule 1.1(a)
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Commitments of Lenders
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Schedule 1.1(b)
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Existing Letters of Credit
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Schedule 1.1(c)
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Mortgaged Property
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Schedule 8.12
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Subsidiaries
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Schedule 8.15
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Owned Real Property
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Schedule 9.17
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Post-Closing Obligations
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Schedule 10.1
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Indebtedness
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Schedule 10.4
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Dispositions
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Schedule 10.5
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Investments
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Schedule 10.8
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Negative Pledge Clauses
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Schedule 10.11
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Transactions with Affiliates
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Schedule 13.2
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Addresses for Notices
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EXHIBITS
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Exhibit A
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Form of Guarantee
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Exhibit B
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Form of Security Agreement
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Exhibit C
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Form of Pledge Agreement
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Exhibit D
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Form of Notice of Borrowing
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Exhibit E
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Form of Closing Certificate
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Exhibit F-1
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Form of Promissory Note (Revolving Credit Loans and Swingline Loans)
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Exhibit F-2
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Form of Promissory Note (Initial Term Loans)
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Exhibit G-1
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Form of Equal Priority Intercreditor Agreement
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Exhibit G-2
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Form of Junior Priority Intercreditor Agreement
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Exhibit H
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Form of Assignment and Acceptance
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Exhibit I
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Form of Affiliated Lender Assignment and Acceptance
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Exhibit J
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Form of Solvency Certificate
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Exhibit K
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Form of United States Tax Compliance Certificate
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Exhibit L
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Form of Intercompany Subordinated Note
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Exhibit M
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Form of Perfection Certificate
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Exhibit N
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Form of Notice of Voluntary Prepayment
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CREDIT AGREEMENT, dated as of August 4, 2017, among
CRACKLE PURCHASER CORP.LLC (f/k/a Crackle Purchaser Corp.), a Delaware corporation (“Holdings”;
as hereinafter further defined), CRACKLE MERGER SUB I CORP., a Delaware corporation (“Merger Sub”), which on
the Closing Date shall be merged with and into Amplify (with Amplify surviving such merger as the Debt Surviving Company and being renamed
WIREPATH LLC, as the “Borrower”; as hereinafter further defined), the Lenders from time to time party hereto,
the Letter of Credit Issuers from time to time party hereto and UBS AG, STAMFORD BRANCH, as the Administrative Agent, Collateral
Agent and Swingline Lender.
RECITALS:
WHEREAS, capitalized
terms used and not defined in the preamble and these recitals shall have the respective meanings set forth for such terms in Section 1.1
hereof;
WHEREAS, pursuant
to the Acquisition Agreement, (i) Merger Sub will merge with and into Amplify (such merger, the “Amplify Merger”),
with Amplify being the surviving entity of the Amplify Merger (the “Debt Surviving Company”, which shall immediately
thereafter be renamed Wirepath LLC), (ii) Crackle Merger Sub II Corp., a Delaware corporation (“Merger Sub II”), will
merge with and into Amplify Holdings LLC, a Delaware limited liability company (the “Target”; such merger, the “Company
Merger” and, together with the Amplify Merger, the “Mergers”), with the Target being the surviving entity
of the Company Merger and (iii) except with respect to certain equityholders of the Target and its subsidiaries, including management
of the Target and its subsidiaries, who agree to roll over their Capital Stock of the Target and its Affiliates or the cash proceeds they
received from the Transactions into Capital Stock in Holdings or a Parent Entity of Holdings (in such capacity, the “Rollover
Investors”), the GA Equityholders and the equityholders of the Target will receive cash in exchange for their Capital Stock
(including phantom equity units) in the Target and Amplify, respectively, and the former equityholders of the Target will be entitled
to receive the payment in respect of the 2017 Contingent Value Rights, the Deferred Blocker Consideration and the Deferred Company Consideration
(collectively, the “Merger Consideration”);
WHEREAS,
(a) the Sponsor and certain other investors (including the Rollover Investors and certain members of management of the Target and
its affiliates) arranged by and/or designated by the Sponsor will, directly or indirectly, make cash equity contributions through
Holdings (or through one or more Parent Entities of Holdings to Holdings), the net proceeds of which will be further contributed,
directly or indirectly, as cash equity to Merger Sub in exchange for Capital Stock of Merger Sub; provided that any such
equity contribution directly to Merger Sub in a form other than common equity shall be reasonably satisfactory to the Lead Arrangers
(the foregoing, collectively, the “Equity Contribution”), in an aggregate amount equal to, when combined with the
Fair Market Value of any Capital Stock of any of the Rollover Investors rolled over or invested in connection with the Transactions,
at least 40.0% of the sum of (1) the aggregate gross proceeds of the Initial Term Loans and Revolving Credit Loans borrowed on the
Closing Date, excluding the aggregate gross proceeds of (A) any Initial Term Loans and Revolving Credit Loans, in either case
borrowed to fund OID and/or upfront fees required to be funded and (B) any Revolving Credit Loans borrowed to fund any ordinary
course working capital needs and (2) the equity capitalization of the Borrower and its Subsidiaries on the Closing Date, after
giving effect to the Transactions and (b) after giving effect to the Transactions on the Closing Date, the Sponsor will own
indirectly at least a majority of the Capital Stock of Holdings;
WHEREAS,
in connection with the foregoing, the Borrower has requested that, immediately upon the satisfaction in full of the applicable
conditions precedent set forth in Section 6 below, the Lenders and Letter of Credit Issuers extend credit to the Borrower in the
form of (i) $265,000,000 in aggregate principal amount of Initial Term Loans to be borrowed on the Closing Date (the “InitialClosing
Date Term Loan Facility”) and (ii) a revolving credit facility in an initial aggregate principal amount of
$50,000,000 of Revolving Credit Commitments (the “Revolving Credit Facility”);
WHEREAS,
a portion of the proceeds of the Initial Term Loans, the Initial Revolving Borrowing Amount and the Equity Contribution will be
contributed as equity and/or loaned, directly or indirectly, to Merger Sub II and, prior to the consummation of the Mergers, General
Atlantic (Amplify) HoldCo LLC, an equityholder of Amplify, will contribute 100% of the outstanding principal amount and accrued
interest under an intercompany loan to Amplify;
WHEREAS,
a portion of the proceeds of the Initial Term Loans and the Initial Revolving Borrowing Amount (to the extent permitted in accordance
with the definition of the term “Permitted Initial Revolving Credit Borrowing Purposes”), together with a portion of the Target’s
and its Subsidiaries’ cash on hand and the proceeds of the Equity Contribution, will be used to pay the Merger Consideration, the
Existing Debt Refinancing and the Transaction Expenses;
WHEREAS,
the Lenders have indicated their willingness to extend such credit and the Letter of Credit Issuers have indicated their willingness to
issue Letters of Credit, in each case on the terms and subject to the conditions set forth below;
WHEREAS,
in connection with the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit contemplated
hereunder, the Borrower has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured
Parties, a first priority lien (such priority subject to Liens permitted hereunder) on substantially all of its assets (except as otherwise
set forth in the Credit Documents), including a pledge of all of the Capital Stock of each of its Subsidiaries (other than any Excluded
Capital Stock); and
WHEREAS,
in connection with the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit contemplated
hereunder, each Guarantor has agreed to guarantee all of its Obligations and to secure its guarantees by granting to the Collateral Agent,
for the benefit of the Secured Parties, a first priority lien (such priority subject to Liens permitted hereunder) on substantially all
of its assets (except as otherwise set forth in the Credit Documents), including a pledge of all of the Capital Stock of each of their
respective Subsidiaries (other than any Excluded Capital Stock).
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. Definitions.
1.1
Defined Terms. As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the
context otherwise requires:
“2017
Contingent Value Rights” shall have the meaning assigned to such term in the Acquisition Agreement.
“ABR”
shall mean, for any day, a fluctuating rate per annum equal to the highest of (a) the Prime Rate in effect for such day, (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%, (c) the Eurodollar Rate for a one month Interest Period on such day
(or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00% and (d) (i) solely with regard to the
Initial Term Loans, 2.00% and (ii) with regard to the Revolving Credit Loans, 0.00%. If the Administrative Agent shall have determined
(which determination should be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of
the definition thereof, the ABR shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Eurodollar Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar
Rate, as the case may be.
“ABR
Loan” shall mean each Loan bearing interest at the rate provided in Section 2.8(a) and, in any event, shall include all Swingline
Loans.
“Acceptable
Reinvestment Commitment” shall mean a binding commitment of the Borrower or any Restricted Subsidiary entered into at any time
prior to the end of the Reinvestment Period to reinvest the proceeds of an Asset Sale Prepayment Event or Recovery Prepayment Event.
“Accounting
Change” shall mean any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants, equivalent authorities
for IFRS, or, if applicable, the SEC.
“Acquired
EBITDA” shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the
amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Borrower and the Restricted
Subsidiaries in the definition of the term “Consolidated EBITDA” were references to such Pro Forma Entity and its subsidiaries
that will become Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.
“Acquired
Entity or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Acquisition”
shall mean any acquisition by the Borrower or any Restricted Subsidiary, whether by purchase, merger, consolidation, contribution or otherwise,
of (a) at least a majority of the assets or property and/or liabilities (or any other substantial part for which financial statements
or other financial information is available), or a business line, product line, unit or division of, any other Person, (b) Capital Stock
of any other Person such that such other Person becomes a Restricted Subsidiary and (c) additional Capital Stock of any Restricted Subsidiary
not then held by the Borrower or any Restricted Subsidiary.
“Acquisition
Agreement” means the Agreement and Plan of Merger, dated as of June 19, 2017, by and among Holdings, Merger Sub, Merger Sub
II, General Atlantic (Amplify) HoldCo LLC, Amplify, the Target, GA Escrow, LLC, a Delaware limited liability company, solely in its capacity
as the seller representative of the equityholders of Amplify and the Target, and JWF Rollover, LLC, a North Carolina limited liability
company, solely in its capacity as the representative of the equityholders of Amplify and the Target with respect to certain tax matters.
“Acquisition
Consideration” shall mean, in connection with any Acquisition, the aggregate amount (as valued at the Fair Market Value of
such Acquisition at the time such Acquisition is made) of, without duplication: (a) the
purchase consideration paid or payable for such Acquisition, whether payable at or prior to the consummation of such Acquisition or
deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and
including any and all payments representing the purchase price and any assumptions of Indebtedness and/or Guarantee Obligations,
“earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in
any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business and
(b) the aggregate amount of Indebtedness Incurred in
connection with such Acquisition; provided in each case, that any such future payment that is subject to a contingency shall
be considered Acquisition Consideration only to the extent of the reserve, if any, required under GAAP (as determined at the time of
the consummation of such Acquisition) to be established in respect thereof by Holdings, the Borrower or its Restricted
Subsidiaries.
“acquired Person” shall have the meaning
provided in Section 10.1(k)(i)(E).
“Additional Lender” shall have the meaning
provided in Section 2.14(d).
“Additional/Replacement
Revolving Credit Commitment” shall have the meaning provided in Section 2.14(a).
“Additional/Replacement
Revolving Credit Facility” shall mean each Class of Additional/Replacement Revolving Credit Commitments made pursuant to Section
2.14(a).
“Additional/Replacement
Revolving Credit Lender” shall mean, at any time, any Lender that has an Additional/Replacement Revolving Credit
Commitment.
“Additional/Replacement
Revolving Credit Loans” shall mean any loan made to the Borrower under a Class of Additional/Replacement Revolving Credit Commitments.
“Adjusted
Total Additional/Replacement Revolving Credit Commitment” shall mean, at any time, with respect to any Class of Additional/Replacement
Revolving Credit Commitments, the Total Additional/Replacement Revolving Credit Commitment for such Class less the aggregate Additional/Replacement
Revolving Credit Commitments of all Defaulting Lenders in such Class.
“Adjusted
Total Extended Revolving Credit Commitment” shall mean, at any time, with respect to any Class of Extended Revolving Credit
Commitments, the Total Extended Revolving Credit Commitment for such Class less the aggregate Extended Revolving Credit Commitments
of all Defaulting Lenders in such Class.
“Adjusted
Total Revolving Credit Commitment” shall mean, at any time, the Total Revolving Credit Commitment less the aggregate Revolving
Credit Commitments of all Defaulting Lenders.
“Administrative
Agent” shall mean UBS AG, Stamford Branch or any successor to UBS AG, Stamford Branch appointed in accordance with the provisions
of Section 12.11, together with its Affiliates that are appointed as sub-agents in accordance with Section 12.4, in each case, as the
administrative agent for the Lenders under this Agreement and the other Credit Documents.
“Administrative
Agent’s Office” shall mean the office and, as appropriate, the account of the Administrative Agent set forth on Schedule
13.2 or such other office or account as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
“Affiliate”
shall mean, with respect to any specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified. The term “Control” shall mean 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 ownership
of Voting Stock, by agreement or otherwise. The terms “Controlling” and “Controlled” have meanings correlative
thereto.
“Affiliated Lender” shall mean a Non-Debt
Fund Affiliate or a Debt Fund Affiliate.
“Affiliated Lender Assignment and Acceptance”
shall have the meaning provided in Section 13.6(g)(i)(C).
“Agents” shall mean each of the Administrative
Agent and the Collateral Agent.
“Agreement” shall mean this Credit Agreement.
“AHYDO Catch-Up Payment”
shall mean any payment with respect to any obligations of the Borrower or any Restricted Subsidiary, in each case to avoid the application
of Section 163(e)(5) of the Code thereto.
“Amplify” shall mean General Atlantic (Amplify)
LLC, a Delaware limited liability company.
“Amplify Merger” shall have the meaning
provided in the recitals to this Agreement.
“Applicable
Laws” shall mean, as to any Person, any international, foreign, provincial, territorial, federal, state, municipal, and local
law (including common law and Environmental Laws), statute, regulation, by-law, ordinance, treaty, rule, order, code, regulation, decree,
guideline, judgment, consent decree, writ, injunction, settlement agreement, governmental requirement and administrative or judicial precedents
enacted, promulgated or imposed or entered into or agreed by any Governmental Authority, in each case applicable to or binding on such
Person or any of its property or assets or to which such Person or any of its property or assets is subject.
“Applicable
Margin” shall mean (a) with respect to any Initial Term Loans 5.254.50%
for Eurodollar Loans and 4.253.50%
for ABR Loans and (b) with respect to the Revolving Credit Loans and Swingline Loans, the following percentages per annum, based
upon the Consolidated First Lien Debt to Consolidated EBITDA Ratio as
set
forth in the most recent certificate delivered to the Administrative Agent pursuant to Section 9.1(d):
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Pricing Level
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Consolidated First Lien Debt to
Consolidated EBITDA Ratio
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Applicable Margin for Revolving Credit Loans that are Eurodollar Loans
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Applicable Margin for Revolving
Credit
Loans that are ABR Loans and
Swingline Loans
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1
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Greater than 4.75:1.00
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5.254.50%
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4.253.50%
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2
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Less than or equal to 4.75:1.00 but greater than 4.25:1.00
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5.004.25%
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4.003.25%
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3
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Less than or equal to 4.25:1.00
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4.754.00%
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3.753.00%
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Notwithstanding
anything to the contrary in this definition, during the period from the Closing Date until the Initial Financial Statement Delivery
Date, the Applicable Margin for Initial Term Loans, Revolving Credit Loans and Swingline Loans shall be determined by reference to
the applicable “Pricing Level 1” set forth in the tables above. Any increase or decrease in the Applicable Margin for
Initial Term Loans, Revolving Credit Loans and Swingline Loans resulting from a change in the Consolidated First Lien Debt to
Consolidated EBITDA Ratio shall become effective as of the first Business Day immediately following the date the certificate
delivered pursuant to Section 9.1(d) is delivered to the Administrative Agent; provided that, at the option of the Required
Lenders, the highest pricing level (as set forth in the tables above) shall apply (a) as of the first Business Day after the date on
which Section 9.1 Financials were required to have been delivered but have not been delivered pursuant to Section 9.1 and shall
continue to so apply to and including the date on which such Section 9.1 Financials are so delivered (and thereafter the pricing
level otherwise determined in accordance with this definition shall apply) and (b) as of the first Business Day after an Event of
Default under Section 11.1 or Section 11.5 shall have occurred and be continuing and, in the case of Section 11.1, the
Administrative Agent has notified the Borrower that the highest pricing level applies, and shall continue to so apply to but
excluding the date on which such Event of Default shall cease to be continuing (and thereafter the pricing level otherwise
determined in accordance with this definition shall apply).
In
the event that the Administrative Agent and the Borrower determine that any Section 9.1 Financials previously delivered were incorrect
or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy,
if corrected, would have led to the application of a higher Applicable Margin for Initial Term Loans, Revolving Credit Loans and/or Swingline
Loans for any period (an “Applicable Period”) than the Applicable Margin for Initial Term Loans, Revolving Credit
Loans and/or Swingline Loans, as applicable, applied for such Applicable Period, then (a) the Borrower shall as soon as practicable deliver
to the Administrative Agent the correct Section 9.1 Financials for such Applicable Period, (b) the Applicable Margin for Initial Term
Loans, Revolving Credit Loans and/or Swingline Loans, as applicable, shall be determined as if the pricing level for such higher Applicable
Margin for Initial Term Loans, Revolving Credit Loans and/or Swingline Loans, as applicable, was applicable for such Applicable Period,
and (c) the Borrower shall within 10 Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the
accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be
promptly applied by the Administrative Agent in accordance with this Agreement. This paragraph shall not limit the rights of the Administrative
Agent and Lenders with respect to Section 2.8(c) and Section 11. “Applicable Period” shall have the meaning provided
in the definition of the term “Applicable Margin”.
“Approved Foreign Bank”
shall have the meaning provided in the definition of the term “Cash Equivalents”.
“Approved Fund” shall have the meaning
provided in Section 13.6(b).
“Asset
Sale Prepayment Event” shall mean any Disposition (or series of related Dispositions) of any business unit, asset or property
of the Borrower or any Restricted Subsidiary (including any Disposition of any Capital Stock of any Subsidiary of the Borrower owned by
the Borrower or any Restricted Subsidiary); provided that the term “Asset Sale Prepayment Event” shall include only
Dispositions (or a series of related Dispositions) (including any Disposition of any Capital Stock of any Subsidiary of Holdings owned
by the Borrower or a
Restricted Subsidiary) made pursuant
to clauses (c), (d)(ii), (g), (j), (q), (r) and (t) of Section 10.4.
“Assignment
and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 13.6) substantially in the form of Exhibit H or such other form as shall be reasonably acceptable
to the Borrower and the Administrative Agent.
“Authorized
Officer” shall mean the Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, the
Chief Operating Officer, the Treasurer, any Manager, any Vice President, the Assistant Treasurer, with respect to certain limited liability
companies or partnerships that do not have officers, any manager, managing member, managing director, general partner or authorized signatory
thereof, any other senior officer of Holdings, the Borrower or any other Credit Party designated as such in writing to the Administrative
Agent by Holdings, the Borrower or any other Credit Party, as applicable, and, with respect to any document (other than the solvency
certificate) delivered on the Closing
Date or any Incremental Facility Closing Date, the Secretary or the Assistant Secretary of any Credit Party, and, solely for purposes
of notices given pursuant to Sections 2, 3, 4 or 5, any other officers of the applicable Credit Party so designated by any of the foregoing
Persons in a notice to the Administrative Agent or any other officer of the applicable Credit Party designated in or pursuant to an agreement
between the applicable Credit Party and the Administrative Agent. Any document delivered hereunder that is signed by an Authorized Officer
shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other
action on the part of Holdings, the Borrower or any other Credit Party and such Authorized Officer shall be conclusively presumed to
have acted on behalf of such Person.
“Auto-Extension Letter of Credit” shall
have the meaning provided in Section 3.2(e).
“Available Amount”
shall mean, at any time (the “Available Amount Reference Time”) an amount equal at such time to (a) the sum (which
shall not be less than zero) of, without duplication:
(i) [reserved];
(ii)
the amount (which amount shall not be less than zero) equal to 50% of the Cumulative Consolidated Net Income of the Borrower and
the Restricted Subsidiaries,
(iii)
the amount (which amount shall not be less than zero) equal to 50% of the Deferred Revenues of the Borrower and the Restricted
Subsidiaries,
(iv)
to the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount of all Returns
(to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary from any Investment to the extent
such Investment was made by using the Available Amount during the period from and including the Business Day immediately following the
Closing Date through and including the Available Amount Reference Time (other than the portion of any such dividends and other distributions
that is used by the Borrower or any Restricted Subsidiary to pay taxes related to such amounts);
(v) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount of all repayments
made in cash or Cash Equivalents of principal received by the Borrower or any Restricted Subsidiary from any Investment to the
extent such Investment was made by using the Available Amount during the period from and including the Business Day immediately
following the Closing Date through and including the Available Amount Reference Time in respect of loans made by the Borrower or any
Restricted Subsidiary and that constituted Investments;
(vi) to
the extent not already included in the calculation of Cumulative Consolidated Net Income or applied to prepay the Term Loans in
accordance with Section 5.2(a)(i) or to prepay, repurchase, redeem, defease, acquire or make any other similar payment on any
Permitted Additional Debt or on any Credit Agreement Refinancing Indebtedness, the aggregate amount of all Net Cash Proceeds
received by the Borrower or any Restricted Subsidiary in connection with the Disposition of its ownership interest in any Investment
to any Person other than to the Borrower or a Restricted Subsidiary and to the extent such Investment was made by using the
Available Amount during the period from and including the Business Day immediately following the Closing Date through and including
the Available Amount Reference Time;
(vii) the
amount of any Investment of the Borrower or any of its Restricted Subsidiaries in any Unrestricted Subsidiary that has been
re-designated as a Restricted Subsidiary pursuant to Section 9.15 or that has been merged, amalgamated or consolidated with or into
the Borrower or any of its Restricted Subsidiaries pursuant to Section 10.3 or the amount of assets of an Unrestricted Subsidiary
Disposed of to the Borrower or a Restricted Subsidiary, in each case following the Closing Date and at or prior to the Available
Amount Reference Time, in each case, such amount not to exceed the lesser of (x) the Fair Market Value of the Investments of the
Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary immediately prior to giving pro forma effect to such
re-designation or merger, amalgamation or consolidation or the Fair Market Value of the assets so Disposed of and (y) the amount
originally invested from the Available Amount by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary
(provided that, in the case of original investments made in cash, the Fair Market Value shall be such cash value); and
(viii)
the aggregate amount of all Returns (to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted
Subsidiary on Investments made using the Available Amount during the period from and including the Business Day immediately following
the Closing Date through and including the Available Amount Reference Time;
minus (b) the sum of, without
duplication and without taking into account the proposed portion of the amount calculated above to be used at the applicable Available
Amount Reference Time:
(i)
the aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Amount pursuant to
Section 10.5 after the Closing Date and prior to the Available Amount Reference Time;
(ii)
the aggregate amount of any Restricted Payments made by the Borrower using the Available Amount pursuant to Section 10.6(f) after
the Closing Date and prior to the Available Amount Reference Time; and
(iii)
the aggregate amount expended on prepayments, repurchases, redemptions, acquisitions, defeasements, and other similar payments
made by the Borrower or any Restricted Subsidiary using the Available Amount pursuant to Section 10.7(a) after the Closing Date and prior
to the Available Amount Reference Time.
“Available Amount Reference
Time” shall have the meaning provided in the definition of the term “Available Amount.”
“Available Equity Amount”
shall mean, at any time (the “Available Equity Amount Reference Time”) an amount (which shall not be less than zero)
equal to, without duplication:
(a)
the aggregate amount of cash and the Fair Market Value of marketable securities or other property, in each case, contributed to
the capital of the Borrower or the proceeds received by the Borrower from the issuance of any Capital Stock (or Incurrences of Indebtedness
that have been converted into or exchanged for Qualified Capital Stock), in each case during the period from and including the Business
Day immediately following the Closing Date through and including the Available Equity Amount Reference Time, but excluding (A) all proceeds
from the issuance of Disqualified Capital Stock, (B) any Excluded Contribution and (C) any Cure Amount; plus
(b) [reserved];
(c)
the Fair Market Value or, if the Fair Market Value of such Term Loans cannot be ascertained, the Fair Market Value shall be the
purchase price of such Term Loans (which shall not in any event be calculated in excess of par) of Term Loans contributed directly or
indirectly by an Investor or a Non-Debt Fund Affiliate to the Borrower during the period after the Closing Date through and including
the Available Equity Amount Reference Time; plus
(d)
the greater of (x) $25,000,000 and (y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test
Period most recently ended on or prior to any such Available Equity Amount Reference Time; plus
(e)
to the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount (which amount
shall not be less than zero) of any Retained Asset Sale Proceeds retained by the Borrower and its Restricted Subsidiaries during the period
after the Closing Date through and including the Available Equity Amount Reference Time; plus
(f)
to the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount (which amount
shall not be less than zero) of any Retained Refused Proceeds retained by the Borrower and its Restricted Subsidiaries during the period
from and including the Business Day immediately following the Closing Date through and including the Available Equity Amount Reference
Time; plus
(g)
the aggregate amount of all Returns (to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted
Subsidiary on Investments made using the Available Equity Amount during the period from and including the Business Day immediately following
the Closing Date through and including the Available Equity Amount Reference Time;
minus the sum, without duplication, and, without
taking into account the proposed portion of the Available Equity Amount calculated above to be used at the applicable Available Equity
Amount Reference Time, of:
(i) the
aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Equity Amount pursuant to Section
10.5 after the Closing Date and prior to the Available Equity Amount Reference Time;
(ii) the
aggregate amount of any Restricted Payments made by the Borrower using the Available Equity Amount pursuant to Section 10.6(f) after
the Closing Date and prior to the Available Equity Amount Reference Time; and
(iii) the
aggregate amount of prepayments, repurchases, redemptions, defeasances, acquisitions and other similar payments, made by the Borrower
or any Restricted Subsidiary using the Available Equity Amount pursuant to Section 10.7(a) after the Closing Date and prior to the Available
Equity Amount Reference Time.
“Available Equity Amount
Reference Time” shall have the meaning provided in the definition of the term “Available Equity Amount.”
“Available Revolving
Credit Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total Revolving Credit
Commitment over (b) the sum of (i) the aggregate principal amount of all Revolving Credit Loans and Swingline Loans then outstanding
and (ii) the aggregate Letter of Credit Obligations at such time.
“Available
RP Capacity Amount” shall mean the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
10.6(b), (f), (l), (m), and (s) minus the sum of the amount of the Available RP Capacity Amount utilized by the Borrower or any Restricted
Subsidiary to (A) make Restricted Payments in reliance on Sections 10.6(b), (f), (l), (m), and (s) and (B) incur Indebtedness pursuant
to Section 10.1(w) utilizing the Available RP Capacity Amount.
“Bail-In
Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect
of any liability of an EEA Financial Institution.
“Bail-In
Legislation” shall mean 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 for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule.
“Bankruptcy
Code” shall mean the provisions of Title 11 of the United States Code, 11 USC §§ 101 et seq., as amended, or any similar
federal or state law for the relief of debtors.
“Basel
III” shall mean, collectively, those certain agreements on capital requirements, leverage ratios and liquidity standards contained
in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International
Framework for Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National Authorities Operating the
Countercyclical Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from
time to time), and as implemented by a Lender’s primary U.S. federal banking regulatory authority or primary non-U.S. financial
regulatory authority, as applicable.
“Beneficial
Owner” shall mean, in the case of a Lender (including the Swingline Lender and each Letter of Credit Issuer), the beneficial
owner of any amounts payable under any Credit Document for U.S. federal withholding tax purposes.
“Benefited Lender” shall have the meaning
provided in Section 13.8(a).
“Board”
shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board
of Directors” shall mean, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person,
(ii) in the case of any limited liability company, the board of managers of such Person, (iii) in the case of any partnership, the Board
of Directors of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.
“Borrower”
shall have the meaning provided in the preamble to this Agreement and shall include any Successor Borrower, to the extent applicable.
“Borrower Materials” shall have the
meaning provided in Section 13.2.
“Borrowing”
shall mean and include (a) the Incurrence of Swingline Loans from the Swingline Lender on a given date (or swingline loans under any
Extended Revolving Credit Commitments of Additional/Replacement Revolving Credit Commitments from any swingline lender thereunder on
a given date), (b) the Incurrence of one Class and Type of Initial Term Loan on the Closing Date or
the First Incremental Agreement Effective Date, as applicable (or resulting from conversions on a given date after the
Closing Date or
the First Incremental Agreement Effective Date, as applicable) having, in the case of Eurodollar Loans, the same Interest
Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of
Eurodollar Loans), (c) the Incurrence of one Class and Type of
Incremental Term Loan on an Incremental Facility Closing Date (or resulting from conversions on a given date after the applicable
Incremental Facility Closing Date) having, in the case of Eurodollar Loans, the same Interest Period (provided that ABR Loans
Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans), (d) the Incurrence of
one Class and Type of Revolving Credit Loan on a given date (or resulting from conversions on a given date) having, in the case of
Eurodollar Loans, the same Interest Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered
part of any related Borrowing of Eurodollar Loans), (e) the Incurrence of one Class and Type of Additional/Replacement Revolving
Credit Loan on a given date (or resulting from conversions on a given date) having, in the case of Eurodollar Loans, the same
Interest Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part of any related
Borrowing of Eurodollar Loans) and (f) the Incurrence of one Type of Extended Revolving Credit Loan of a specified Class on a given
date (or resulting from conversions on a given date) having, in the case of Eurodollar Loans, the same Interest Period
(provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar
Loans).
“Business
Day” shall mean (a) any day excluding Saturday, Sunday and any day that shall be in The City of New York a legal holiday or
a day on which banking institutions are authorized by law or other governmental actions to close and (b) if the applicable Business Day
relates to any Eurodollar Loans, any day on which dealings in deposits in U.S. Dollars are carried on in the London interbank eurodollar
market.
“Capital
Expenditures” shall mean, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash
or accrued as liabilities) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are
required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of
the Borrower and the Restricted Subsidiaries, (b) all Capitalized Software Expenditures and Capitalized Research and Development Costs
during such period and (c) all fixed asset additions financed through Financing Lease Obligations Incurred by the Borrower and the Restricted
Subsidiaries and recorded on the balance sheet in accordance with GAAP during such period; provided that the term “Capital
Expenditures” shall not include:
(i) expenditures
made in connection with the replacement, substitution, restoration or repair of assets to the extent financed from insurance proceeds
or compensation awards paid on account of a Recovery Event (except to the extent that such proceeds otherwise increase Consolidated Net
Income for purposes of calculating Excess Cash Flow for such period),
(ii) the
purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount
of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,
(iii)
the purchase of property, plant or equipment to the extent financed with the proceeds of Dispositions outside the ordinary course
of business (except to the extent that such proceeds otherwise increase Consolidated Net Income for purposes of calculating Excess Cash
Flow for such period),
(iv) expenditures that constitute any part of Consolidated Lease Expense,
(v) expenditures
that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are paid for, or reimbursed,
by a Person other than the Borrower or any Restricted Subsidiary and for which neither the Borrower nor any Restricted Subsidiary has
provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person
(whether before, during or after such period, it being understood, however, that only the amount of expenditures actually provided or
incurred by the Borrower or any Restricted Subsidiary in such period and not the amount required to be provided or incurred in any future
period shall constitute “Capital Expenditures” in the applicable period),
(vi) the
book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that such book
value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during
such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure necessary
in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in which such expenditure actually
is made and (y) such book value shall have been included in Capital Expenditures when such asset was originally acquired,
(vii) any
expenditures made as payments of the consideration for an Acquisition (or other similar Investment) and expenditures made in connection
with the Transactions and any amounts recorded pursuant to purchase accounting required under GAAP pertaining to Acquisitions (or other
similar Investments) or the Transactions,
(viii) any
capitalized interest expense and internal costs reflected as additions to property, plant or equipment in the consolidated balance sheet
of the Borrower and the Restricted Subsidiaries or capitalized as Capitalized Software Expenditures and Capitalized Research and Development
Costs for such period, or
(ix) any
non-cash compensation or other non-cash costs reflected as additions to property, plant and equipment, Capitalized Software Expenditures
and Capitalized Research and Development Costs in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capital
Stock” shall mean 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 and including membership interests and
partnership interests) and, except to the extent constituting Indebtedness, any and all warrants, rights or options to purchase, acquire
or exchange any of the foregoing.
“Capitalized
Research and Development Costs” shall mean, for any period, all research and development costs that are, or are required to
be, in accordance with GAAP, reflected as capitalized costs on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capitalized
Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities)
by the Borrower and the Restricted Subsidiaries during such period in respect of purchased software or internally developed software and
software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries.
“Cash Collateral” shall have the meaning
provided in Section 3.8(c).
“Cash Collateralize” shall have the meaning
provided in Section 3.8(c).
“Cash Equivalents” shall mean:
(a) Dollars;
(b)
Australian Dollars, Canadian Dollars, Euros, Pounds Sterling or any national currency of any participating member state of the
EMU;
(c)
other currencies held by the Borrower or the Restricted Subsidiaries from time to time in the ordinary course of business;
(d)
securities issued or unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof,
in each case having maturities of not more than 24 months from the date of acquisition thereof;
(e)
securities issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing
authority of any such state, commonwealth or territory or any public instrumentality thereof or any political subdivision or taxing authority
of any such state or commonwealth or territory or any public instrumentality thereof having maturities of not more than 24 months from
the date of acquisition thereof and, at the time of acquisition, having an Investment Grade Rating;
(f)
commercial paper or variable or fixed rate notes issued by or guaranteed by any Lender or any bank holding company owning any Lender;
(g)
commercial paper or variable or fixed rate notes maturing no more than 24 months from the date of acquisition thereof and, at the
time of acquisition, having an Investment Grade Rating;
(h) time
deposits with, or domestic and eurocurrency certificates of deposit, demand deposits or bankers’ acceptances maturing no more than
two years after the date of acquisition thereof and overnight bank deposits, in each case, issued by, any Lender or any other bank having
combined capital and surplus of not less than $100,000,000 (or the Dollar equivalent as of the date of determination);
(i)
repurchase obligations for underlying securities of the type described in clauses (d), (e) and (h) above entered into with any
bank meeting the qualifications specified in clause (h) above or securities dealers of recognized national standing;
(j)
marketable short-term money market and similar securities having a rating of at least A-2 or P-2 from either S&P or Moody’s
(or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another Rating Agency);
(k)
readily marketable direct obligations issued by any non-U.S. government or any political subdivision or public instrumentality
thereof, in each case having an Investment Grade Rating with maturities of 24 months or less from the date of acquisition;
(l)
Investments with average maturities of no more than 24 months from the date of acquisition in money market funds rated AAA- (or
the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency);
(m)
with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary
maintains its chief executive office and principal place of business; provided such country is a member of the Organization for
Economic Cooperation and Development, in each case maturing within 24 months after the date of acquisition thereof, (ii) certificates
of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the
country in which such Foreign Subsidiary maintains its chief executive office and principal place of business; provided such country
is a member of the Organization for Economic Cooperation and Development, and who otherwise meets the qualifications specified in clause
(f) above (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months
from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
(n)
Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A-2”
or higher from Moody’s (or, if at any time neither S&P or Moody’s shall be rating such obligations, an equivalent rating
from another Rating Agency) with maturities of 24 months or less from the date of acquisition;
(o)
in the case of investments by any Foreign Subsidiary or investments made in a country outside the United States of America, Cash
Equivalents shall also include (i) investments of the type and maturity described in clauses (a) through (n) above of foreign obligors,
which investments or obligors (or the parents of such obligors) have ratings, described in such clauses or equivalent ratings from comparable
foreign Rating Agencies and (ii) other short term investments utilized by Foreign Subsidiaries in accordance with normal investment practices
for cash management in investments analogous to the foregoing investments described in clauses (a) through (n) of this paragraph; and
(p)
investment funds investing 90% of their assets in securities of the types described in clauses (a) through (o) above.
Notwithstanding
the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (a), (b) and (c)
above; provided that such amounts are converted into any currency or securities listed in clauses (a) through (d) as promptly as
practicable and in any event within ten (10) Business Days following the receipt of such amounts.
“Cash
Management Agreement” shall mean any agreement entered into from time to time by Holdings, the Borrower or any of the Restricted
Subsidiaries in connection with cash management services for collections, other Cash Management Services or for operating, payroll and
trust accounts of such Person, including automatic clearing house services, controlled disbursement services, electronic funds transfer
services, information reporting services, lockbox services, stop payment services and wire transfer services.
“Cash
Management Bank” shall mean any Person that is a Lender, Lead Arranger, Joint Bookrunner, Agent or any Affiliate of a Lender,
Lead Arranger, Joint Bookrunner or Agent at the time it provides any Cash Management Services or any Person that shall have become a Lender,
an Agent or an Affiliate of a Lender or an Agent at any time after it has provided any Cash Management Services.
“Cash
Management Obligations” shall mean obligations owed by Holdings, the Borrower or any Restricted Subsidiary to any Cash Management
Bank in connection with, or in respect of, any Cash Management Services.
“Cash
Management Services” shall mean (a) commercial credit cards, merchant card services, purchase or debit cards, including non-card
e-payables services, (b) treasury management services (including controlled disbursement, overdraft automatic clearing house fund transfer
services, return items and interstate depository network services) and (c) any other demand deposit or operating account relationships
or other cash management services, including under any Cash Management Agreements.
“CFC” shall mean a “controlled
foreign corporation” within the meaning of Section 957 of the Code.
“Change
in Law” shall mean the occurrence, after the Closing Date, of any of the following: (a) the adoption of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the administration or interpretation thereof by any Governmental
Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection
Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) Basel III and all requests,
rules, guidelines or directives thereunder or issued in connection therewith, shall in each case be deemed to be a “Change in Law”,
regardless of the date enacted, adopted or issued.
“Change of Control” shall mean and be deemed
to have occurred if:
(a) (i)
at any time prior to a Qualifying IPO, (x) the Permitted Holders shall at any time cease, directly or indirectly, to have the power
to vote or direct the voting of at least 35% of the total voting power of the Voting Stock of Holdings (or, for the avoidance of
doubt, any New Holdings or Successor Holdings) or (y) the acquisition by (A) any Persons (other than any one or more Permitted
Holders) or (B) Persons (other than any one or more Permitted Holders) that are together a “group” (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act (or any successor provision), but excluding any employee benefit plan of such
Person or “group” or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such
plan), including any group acting for the purpose of acquiring, holding or Disposing of Capital Stock of Holdings (or, for the
avoidance of doubt, any New Holdings or Successor Holdings) (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any
successor provision)) of a percentage of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any
New Holdings or Successor Holdings) that is greater than the percentage of the total voting power of the Voting Stock of Holdings
(or, for the avoidance of doubt, any New Holdings or Successor Holdings) in the aggregate, directly or indirectly, beneficially
owned by the Permitted Holders and/or (ii) at any time on and after a Qualifying IPO, the acquisition by (A) any Person (other than
any one or more Permitted Holders) or (B) Persons (other than any one or more Permitted Holders) that are together a
“group” (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (or any successor provision), but
excluding any employee benefit plan of such Person or “group” or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan), including any group acting for the purpose of acquiring, holding or Disposing of
Capital Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) (within the meaning of Rule
13d-5(b)(1) under the Exchange Act (or any successor provision)) of the total voting power of the Voting Stock of Holdings (or, for
the avoidance of doubt, any New Holdings or Successor Holdings) having more than the greater of (A) 35% of the total voting power of
the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) and (B) the percentage of the
total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) owned,
directly or indirectly, beneficially in the aggregate by the Permitted Holders, unless in the case of either clause (i) or (ii)
above, the Permitted Holders have, at such time, the right or the ability by voting power, contract, proxy or otherwise to elect,
appoint, nominate or designate at least a majority of the aggregate votes on the Board of Directors of Holdings (or, for the
avoidance of doubt, any New Holdings or Successor Holdings); and/or
(b)
at any time prior to a Qualifying IPO of the Borrower (or, for the avoidance of doubt, a Successor Borrower), the failure of Holdings
(or, for the avoidance of doubt, any New Holdings or Successor Holdings), directly or indirectly through wholly owned subsidiaries, to
own beneficially and of record, all of the Capital Stock of the Borrower; and/or
(c)
a “change of control” or any comparable event under, and as defined in any documentation governing any other First
Lien Obligations (other than any Cash Management Agreement or Hedging Agreement) shall have occurred.
Notwithstanding
the preceding or any provision of Rule 13d-3 of the Exchange Act (or any successor provision), (i) a Person or group shall not be deemed
to beneficially own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option
or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement, (ii) if any group includes
one or more Permitted Holders, the issued and outstanding Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or
Successor Holdings) beneficially owned, directly or indirectly, by any Permitted Holders that are part of such group shall not be treated
as being beneficially owned by any other member of such group for purposes of determining whether a Change of Control has occurred and
(iii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Voting
Stock or other securities of such other Person’s Parent Entity (or related contractual rights) unless it owns 50.0% or more of the
total voting power of the Voting Stock of such Parent Entity. For purposes of this definition and any related definition to the extent
used for purposes of this definition, at any time when 50.0% or more of the total voting power of the Voting Stock of Holdings (or, for
the avoidance of doubt, any New Holdings or Successor Holdings) is directly or indirectly owned by a Parent Entity, all references to
Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) shall be deemed to refer to its ultimate Parent Entity
(but excluding any Investor) that directly or indirectly owns such Voting Stock.
“Class”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit
Loans, Initial Term Loans, Incremental Term Loans (of a Class), Extended Term Loans (of the same Extension Series), Extended Revolving
Credit Loans (of the same Extension Series and any related swingline loans thereunder), Additional/Replacement Revolving Credit Loans
(of the same Class and any related swingline loans thereunder) or Swingline Loans, and, when used in reference to any Commitment, refers
to whether such Commitment is a Revolving Credit Commitment, an Initial Term Loan Commitment, an Incremental Term Loan Commitment (of
the same Class), an Extended Revolving Credit Commitment (of the same Extension Series and any related swingline commitment thereunder),
an Additional/Replacement Revolving Credit Commitment (of the same Class and any related swingline commitment thereunder) or a Swingline
Commitment, and when used in reference to any Lender, refers to whether such Lender has a Loan or Commitment of such Class.
“Claims” shall have meaning provided
in the definition of Environmental Claims.
“Closing Date” shall mean the date of
the initial Credit Event under this Agreement, which date is August 4, 2017.
“Closing Date Indebtedness”
shall mean Indebtedness outstanding on the date hereof and, to the extent in excess of $2,500,000, described on Schedule 10.1.
“Closing Date
Term Loan Facility” shall have the meaning provided for such term in the recitals to this Agreement.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time. Section references to the Code are to the Code, as in effect
on the Closing Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Collateral”
shall have the meaning provided for such term or a similar term in each of the Security Documents; provided that, with respect
to any Mortgages, “Collateral” shall mean “Mortgaged Property” as defined therein.
“Collateral
Agent” shall mean UBS AG, Stamford Branch or any successor thereto appointed in accordance with the provisions of Section 12.11,
together with any of its Affiliates, that is appointed as a sub-agent in accordance with Section 12.4, as the collateral agent for the
Secured Parties.
“Commitment”
shall mean, (a) with respect to each Lender (to the extent applicable), such Lender’s Initial Term Loan Commitment, Incremental
Term Loan Commitment, Revolving Credit Commitment, Extended Revolving Credit Commitment, Additional/Replacement Revolving Credit Commitment
or any combination thereof (as the context requires) and (b) with respect to the Swingline Lender, or swingline lender under any Extended
Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments, its Swingline Commitment or swingline commitment,
as applicable.
“Commitment Fee” shall have the meaning
provided in Section 4.1(a).
“Commitment
Fee Rate” shall mean a rate equal to the following percentages per annum, based upon the Consolidated First Lien Debt to Consolidated
EBITDA Ratio as set forth in the most recent certificate delivered to the Administrative Agent pursuant to Section 9.1(d):
|
Pricing Level
|
Consolidated First Lien Debt to Consolidated EBITDA Ratio
|
Commitment Fee Rate
|
|
1
|
Greater than 4.75:1.00
|
0.50%
|
|
2
|
Less than or equal to 4.75:1.00
but greater than
4.25:1.00
|
0.375%
|
|
3
|
Less than or equal to 4.25:1.00
|
0.25%
|
Notwithstanding
anything to the contrary in this definition, during the period from the Closing Date until the Initial Financial Statement Delivery
Date, the Commitment Fee Rate shall be determined by “Pricing Level 1” set forth in the table above. Any increase or
decrease in the Commitment Fee Rate resulting from a change in the Consolidated First Lien Debt to Consolidated EBITDA Ratio shall
become effective as of the first Business Day immediately following the date the certificate delivered pursuant to Section 9.1(d) is
delivered to the Administrative Agent; provided that, at the option of the Required Lenders, the highest pricing level (as
set forth in the table above) shall apply (a) as of the first Business Day after the date on which Section 9.1 Financials were
required to have been delivered but have not been delivered pursuant to Section 9.1 and shall continue to so apply to and including
the date on which such Section 9.1 Financials are so delivered (and thereafter the pricing level otherwise determined in accordance
with this definition shall apply) and (b) as of the first Business Day after an Event of Default under Section 11.1 or Section 11.5
shall have occurred and be continuing and, in the case of Section 11.1, the Administrative Agent has notified the Borrower that the
highest pricing level applies, and shall continue to so apply to but excluding the date on which such Event of Default shall cease
to be continuing (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).
In the
event that the Administrative Agent and the Borrower determine that any Section 9.1 Financials previously delivered were incorrect
or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher Commitment Fee Rate for any Applicable Period than the
Commitment Fee Rate applied for such Applicable Period, then (a) the Borrower shall as soon as practicable deliver to the
Administrative Agent the correct Section 9.1 Financials for such Applicable Period, (b) the Commitment Fee Rate shall be determined
as if the pricing level for such higher Commitment Fee Rate were applicable for such Applicable Period, and (c) the Borrower shall
within 10 Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional
interest owing as a result of such increased Commitment Fee Rate for such Applicable Period, which payment shall be promptly applied
by the Administrative Agent in accordance with this Agreement. This paragraph shall not limit the rights of the Administrative Agent
and Lenders with respect to Section 2.8(c) and Section 11.
“Commitment
Letter” shall mean the Credit Facilities Commitment Letter, dated as of June 19, 2017, among UBS AG, Stamford Branch, UBS Securities
LLC, SunTrust Bank, SunTrust Robinson Humphrey, Inc. and Holdings.
“Commodity
Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute.
“Communications” shall have the meaning
provided in Section 13.2.
“Company Merger” shall have the meaning
provided in the recitals to this Agreement.
“Confidential Information” shall have the
meaning provided in Section 13.16.
“Confidential
Information Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated July 2017, delivered to the
prospective lenders in connection with this Agreement.
“Consolidated
Depreciation and Amortization Expense” shall mean, with respect to any Person for any period, the total amount of depreciation
and amortization expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees and expenses,
Capital Expenditures, including Capitalized Software Expenditures, intangible assets established through recapitalization or purchase
accounting, and the accretion or amortization of OID resulting from the Incurrence of Indebtedness at less than par, of such Person for
such period on a consolidated basis and as determined in accordance with GAAP.
“Consolidated EBITDA” shall mean, for any
period, the Consolidated Net Income for such period, plus:
(a) without duplication and to the extent
already deducted or, in the case of clauses (vi) and (viii) below,
to the extent not included (and not added back or excluded) in arriving at such Consolidated Net Income, the sum of the following
amounts for such period:
(i)
provision for taxes based on income or profits or capital, including, without limitation, federal, foreign, state, local, franchise,
unitary, property, excise, value added and similar taxes and foreign withholding taxes paid or accrued during such period (including taxes
in respect of expatriated or repatriated funds and any penalties and interest related to such taxes or arising from any tax examinations),
(ii)
Consolidated Interest Expense and, to the extent not reflected in such Consolidated Interest Expense, bank and letter of credit
fees, debt rating monitoring fees and net losses on Hedging Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk, amortization of deferred financing fees, OID or costs, costs of surety bonds in connection with financing
activities, together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (A) through
(N) thereof,
(iii) Consolidated Depreciation and Amortization Expense,
(iv) the
amount of any restructuring charge, accrual or reserve or non-recurring (on a per-transaction basis) integration costs and related costs
and charges, including proposed or actual hiring and on-boarding of any senior level executives and any one-time (on a per-transaction
basis) costs or charges incurred in connection with Acquisitions and other Investments and costs, charges and expenses, including put
arrangements and headcount reductions or other similar actions including severance charges in respect of employee termination or relocation
costs, excess pension charges, severance and lease termination expenses and other expenses related to the closure, discontinuance, consolidation
and integration of locations, IT infrastructure, legal entities and/or facilities,
(v)
any other non-cash charges, including (A) all non-cash compensation expenses and costs, (B) the non-cash impact of recapitalization
or purchase accounting, (C) the non-cash impact of accounting changes or restatements, (D) any non-cash portion of Consolidated Lease
Expense and (E) other non-cash charges; provided that, to the extent that any such non-cash charges represent an accrual or reserve
for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated
EBITDA in such future period to such extent; and provided, further, that amortization of a prepaid cash item that was paid
in a prior period shall be excluded),
(vi)
the aggregate amount of Consolidated Net Income for such period attributable to non-controlling interests of third parties in any
non Wholly-Owned Subsidiary, excluding cash distributions in respect thereof to the extent already included in Consolidated Net Income,
(vii) the
amount of management, monitoring, consulting and advisory fees, termination payments, indemnities and related expenses paid or
accrued in such period to (or on behalf of) the Investors (including amortization thereof) and any directors’ fees or
reimbursements (including pursuant to any management agreement) in any such case to the extent otherwise permitted under Section
10.11 or to (or on behalf of) Affiliates of the Target on or prior to the Closing Date (and following the Closing Date, with respect
to indemnification or other amounts owed in respect of arrangements in effect prior to the Closing Date),
(viii)
(A) pro forma adjustments, including pro forma “run rate” cost savings, operating expense reductions and other synergies
related to the Transactions projected by the Borrower in good faith to result from actions that have been taken, actions with respect
to which substantial steps have been taken or actions that are expected to be taken (in each case, in the good faith determination of
the Borrower), in any such case within eight fiscal quarters after the Closing Date (or, to the extent identified and reasonably acceptable
to the Lead Arrangers, undertaken or implemented prior to the Closing Date) and, without duplication and (B) pro forma adjustments, including
pro forma “run rate” cost savings, operating expense reductions, and other synergies related to mergers, business combinations,
Acquisitions and similar Investments, Dispositions and other similar transactions, or related to restructuring initiatives, cost savings
initiatives and other initiatives projected by the Borrower in good faith to result from actions that have been taken, actions with respect
to which substantial steps have been taken or actions that are expected to be taken (in each case, in the good faith determination of
the Borrower), in any such case, within eight fiscal quarters after the date of consummation of such merger, business combination, Acquisition
or similar Investment, Disposition or other similar transaction or the initiation of such restructuring initiative, cost savings initiative
or other initiative; provided further, that, for the purpose of this clause (viii), (I) any such adjustments shall be added to
Consolidated EBITDA for each Test Period until fully realized and shall be calculated on a pro forma basis as though such adjustments
had been realized on the first day of the relevant Test Period and shall be calculated net of the amount of actual benefits realized from
such actions, (II) any such adjustments shall be reasonably identifiable and (III) no such adjustments shall be added pursuant to this
clause (viii) to the extent duplicative of any items related to adjustments included in the definition of Consolidated Net Income, clause
(iv) above or pursuant to the effects of Section 1.12 (it being understood that for purposes of the foregoing and Section 1.12 “run
rate” shall mean the full recurring benefit that is associated with any such action),
(ix)
Receivables Fees and the amount of loss on Dispositions of receivables and related assets to the Receivables Subsidiary in connection
with a Qualified Receivables Facility,
(x)
to the extent funded with cash contributed to the capital of the Borrower or the Net Cash Proceeds of an issuance of Capital Stock
of the Borrower (other than Disqualified Capital Stock) solely to the extent that such Net Cash Proceeds are excluded from the calculation
of the Available Equity Amount, (A) any deductions, charges, costs or expenses (including compensation charges and expenses) incurred
by the Borrower or any Restricted Subsidiary pursuant to any management equity plan or share option plan or any other management or employee
benefit plan or agreement, pension plan, any severance agreement or any equity subscription or shareholder agreement or any distributor
equity plan or agreement or in connection with grants of stock appreciation or similar rights or other rights to directors, officers,
managers and/or employees of any Parent Entity, any Equityholding Vehicle, the Borrower or any of its Restricted Subsidiaries and (B)
any charges, costs, expenses accruals or reserves in connection with the rollover, acceleration or payout of Capital Stock held by directors,
officers, managers and/or employees of any Parent Entity, any Equityholding Vehicle, the Borrower or any of its Restricted Subsidiaries,
(xi)
100% of the increase in Deferred Revenue as of the end of such period from Deferred Revenue as of the beginning of such period,
(xii)
cash receipts (or any netting arrangements resulting in reduced cash expenditures) not otherwise included in Consolidated EBITDA
in any period to the extent non- cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant
to paragraph (b) below for any previous period and not added back,
(xiii)
any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial
losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or
cost) existing at the date of initial application of Financial Accounting Standards Board’s Accounting Standards Codification No.
715, any non-cash deemed finance charges in respect of any pension liabilities, the curtailment or modification of pension and post-retirement
employee benefit plans (including settlement of pension liabilities), and any other items of a similar nature,
(xiv)
in respect of any Hedging Obligations that are terminated (or early extinguished) prior to the stated settlement date, any loss
(or gain as applicable) reflected in Consolidated Net Income in or following the quarter in which such termination or early extinguishment
occurs,
(xv)
all adjustments, other than normalized adjustments, of the type that are described on page 41 of the Public Lenders Presentation
dated July 2017, to the extent such adjustments, without duplication, continue to be applicable to such period,
(xvi) costs,
expenses, charges, accruals, reserves (including restructuring costs related to acquisitions prior to, on or after the Closing Date)
or expenses attributable to the undertaking and/or the implementation of cost savings initiatives, operating expense reductions and other
restructuring and integration and transition costs, costs associated with inventory category and distribution optimization programs,
pre-opening, opening and other business optimization expenses (including software development costs), consolidation, discontinuance and
closing costs and expenses for locations and/or facilities, signing, retention and completion bonuses, costs related to entry and expansion
into new markets (including consulting fees) and to modifications to pension and post-retirement employee benefit plans, system design,
establishment and implementation costs and project start-up costs,
(xvii) adjustments consistent with Regulation S-X of the Securities Act,
(xviii)
changes in earn-out obligations incurred in connection with any Acquisition or other similar Investment permitted under this Agreement
and paid during the applicable period and any similar acquisitions completed prior to the Closing Date, and
(xix)
costs related to the implementation of operational and reporting
systems and technology initiatives,
less
(b) without duplication and to the extent included in arriving at such Consolidated Net Income,
(i)
any non-cash gains, but excluding any non-cash gains that represent the reversal of any accrual of,
or cash reserve for, anticipated cash items that reduced Consolidated EBITDA in any prior period, and
(ii)
100% of the decrease in Deferred Revenue as of the end of such period from the Deferred Revenue as of the beginning of such period,
in each case, as determined
on a consolidated basis for the Borrower and the Restricted Subsidiaries in accordance with GAAP; provided that,
(I)
there shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person,
property, business or asset acquired by the Borrower or any Restricted Subsidiary during such period (other than any Unrestricted Subsidiary)
to the extent not subsequently sold, transferred or otherwise Disposed of during such period (but not including the Acquired EBITDA of
any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired,
including pursuant to the Transactions or pursuant to a transaction consummated prior to the Closing Date, and not subsequently so Disposed
of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted
Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such
Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical
pro forma basis; and
(II)
there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business
or asset sold, transferred or otherwise Disposed of, closed or classified as discontinued operations by the Borrower or any Restricted
Subsidiary to the extent not subsequently reacquired, reclassified or continued, in each case, during such period (each such Person (other
than an Unrestricted Subsidiary), property, business or asset so sold, transferred or otherwise Disposed of, closed or classified, a “Sold
Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary
during such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such
Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale,
transfer, disposition, closure, classification or conversion) determined on a historical pro forma basis.
Notwithstanding
anything to the contrary contained herein and subject to adjustment as provided in clauses (I) and
(II) of the immediately preceding proviso with respect to acquisitions and Dispositions occurring prior to, on and following the
Closing Date and, without any duplication of any adjustments already included in the amounts below, other adjustments contemplated
by Section 1.12, clauses (a)(i), (a)(viii), (a)(xv) and (a)(xvi) above, Consolidated EBITDA shall be deemed to be $13,940,000,
$12,635,000, $12,370,000 and $11,155,000, respectively, for the fiscal quarters ended June 30, 2016, September 30, 2016, December
31, 2016 and March 31, 2017.
“Consolidated
EBITDA to Consolidated Interest Expense Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated
EBITDA for the most recent Test Period ended on or prior to such date of determination to (b) Consolidated Interest Expense for such
period; provided that, for purposes of calculating the Consolidated EBITDA to Consolidated Interest Expense Ratio for any
period ending prior to the first anniversary of the Closing Date, Consolidated Interest Expense shall be an amount equal to actual
Consolidated 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.
“Consolidated
First Lien Debt” shall mean, without duplication, as of any date of determination, (a) the aggregate principal amount of all
Consolidated Total Debt (determined without regard to clause (b) of the definition thereof) outstanding hereunder as of such date (but
excluding the effects of any discounting of Indebtedness resulting from the application of recapitalization or purchase accounting in
connection with the Transactions, any Acquisition or other similar Investment) and all other Consolidated Total Debt (determined without
regard to clause (b) of the definition thereof) secured by Liens on the Collateral that do not rank junior in priority to the Liens on
the Collateral securing the Obligations minus (b) the aggregate amount of cash and Cash Equivalents on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries on such date, excluding cash and Cash Equivalents which are or should be listed
as “restricted” on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date. It is understood
that to the extent the Borrower or any Restricted Subsidiary Incurs any Indebtedness and receives the proceeds of such Indebtedness, for
purposes of determining any Incurrence test under this Agreement and whether the Borrower is in pro forma compliance with any such test,
the proceeds of such Incurrence shall not be considered cash or Cash Equivalents for purposes of any “netting” pursuant to
clause (b) of this definition.
“Consolidated
First Lien Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated First
Lien Debt as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA
for such Test Period.
“Consolidated
Interest Expense” shall mean, with respect to any Person for any period, without duplication, the sum of:
(a) the
consolidated cash interest expense of such Person for such period, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of such Person, (including (i) all commissions, discounts and other cash fees and charges
owed with respect to letters of credit and bankers’ acceptance financing, (ii) the cash interest component of Financing Lease
Obligations, (iii) net cash payments, if any, made (less net cash payments, if any, received), pursuant to obligations under Hedging
Agreements for Indebtedness) and (iv) Restricted Payments on account of Disqualified Stock made pursuant to Section 10.6(r), but in
any event excluding, for the avoidance of doubt,
(A)
accretion or amortization of original issue discount resulting from the Incurrence of Indebtedness at less than par;
(B)
amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses;
(C)
any accretion or accrual of, or accrued interest on discounted liabilities not constituting Indebtedness during such period and
any prepayment, redemption, repurchase, defeasance, acquisition or similar premium, penalty or inducement or other loss in connection
with the early Refinancing or modification of Indebtedness paid or payable during such period;
(D)
any interest in respect of items excluded from Indebtedness in the proviso to the definition thereof;
(E) penalties
or interest relating to taxes and any other amount of non-cash interest resulting from the effects of the acquisition method of accounting
or pushdown accounting;
(F) non-cash
interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedging Agreements or other derivative
instruments pursuant to Financial Accounting Standards Board’s Accounting Standards Codification No. 815 (Derivatives and Hedging);
(G)
any one-time cash costs associated with breakage in respect of Hedging Agreements for interest rates and any payments with respect
to make-whole premiums or other breakage costs in respect of any Indebtedness;
(H)
all additional interest or liquidated damages then owing pursuant to any registration rights agreement and any comparable “additional
interest” or liquidated damages with respect to other securities designed to compensate the holders thereof for a failure to publicly
register such securities;
(I)
any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting
or purchase accounting;
(J)
any expensing of bridge, arrangement, structuring, commitment or other financing fees (excluding, for the avoidance of doubt, the
Commitment Fees);
(K)
any lease, rental or other expense in connection with Non-Financing Lease Obligations,
(L)
Receivables Fees, commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified
Receivables Facility,
(M) any capitalized interest, whether paid in cash or otherwise; and
(N)
any other non-cash interest expense, including capitalized interest, whether paid or accrued;
less
(b) cash interest income of the Borrower and the Restricted Subsidiaries for such period.
For purposes
of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such
Person to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP.
“Consolidated
Lease Expense” shall mean, for any period, all rental expenses of any Person during such period in respect of Non-Financing
Lease Obligations for real or personal property (including in connection with Sale Leasebacks), but excluding real estate taxes, insurance
costs and common area maintenance charges and net of sublease income; provided that Consolidated Lease Expense shall not include
(a) obligations under vehicle leases entered into in the ordinary course of business, (b) all such rental expenses associated with assets
acquired pursuant to the Transactions and pursuant to an Acquisition (or other similar Investment) to the extent that such rental expenses
relate to Non-Financing Lease Obligations (i) in effect at the time of (and immediately prior to) such acquisition and (ii) related to
periods prior to such acquisition, (c) Financing Lease Obligations, all as determined on a consolidated basis in accordance with GAAP
and (d) the effects from applying purchase accounting.
“Consolidated
Net Income” shall mean, with respect to any Person for any period, the aggregate of the Net Income attributable to such Person
for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without
duplication, and on an after-tax basis to the extent appropriate,
(a) any
extraordinary, unusual or nonrecurring gains, losses or expenses; costs associated with preparations for, and implementation of,
compliance with the requirements of the Sarbanes-Oxley Act of 2002 and other Public Company Costs; earn-out payments or other
consideration paid or payable in connection with an Acquisition to the extent recorded as cash expense; severance costs; relocation
costs; integration costs; pre-opening, opening, consolidation, discontinuation, integration and closing costs and expenses for
locations, facilities, IT infrastructure and for legal entities (including any legal entity restructuring); signing, retention and
completion bonuses; transition costs; restructuring costs; and litigation settlements, fines, judgments, orders or losses and
related costs and expenses shall be excluded,
(b)
the Net Income for such period shall not include the cumulative effect of a change in accounting principles, including if reflected
through a restatement or retroactive application, during such period,
(c)
any net gains or losses realized on (i) Disposed of, discontinued or abandoned operations (which shall not, unless the Borrower
otherwise elects, include assets then held for sale), or (ii) the sale or other Disposition of any Capital Stock of any Person, shall
be excluded,
(d)
any net gains or losses realized attributable to asset Dispositions, other than those in the ordinary course of business, as determined
in good faith by the Borrower, and Dispositions of books of business, client lists or related goodwill in connection with the departure
of related employees, shall be excluded,
(e)
the Net Income for such period of any Person that is not the Borrower or a Restricted Subsidiary of the Borrower, or that is accounted
for by the equity method of accounting, shall be excluded; provided that the Consolidated Net Income of the Borrower and its Restricted
Subsidiaries shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents
(or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) to the referent
Person or a Restricted Subsidiary thereof in respect of such period,
(f) solely
for the purpose of determining the amount available under clause (ii) of the definition of “Available Amount,” the Net
Income for such period of any Restricted Subsidiary (other than any Credit Party) shall be excluded to the extent the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination
permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted
by the operation of the terms of its charter or any judgment, decree, order, statute, rule, or governmental regulation applicable to
that Restricted Subsidiary or its equityholders (other than: (i) restrictions that have been waived or otherwise released, (ii)
restrictions pursuant to this Agreement and (iii) restrictions arising pursuant to an agreement or instrument if the encumbrances
and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Secured
Parties than the encumbrances and restrictions contained in the Credit Documents (as determined by the Borrower in good faith))
unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided
that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments
actually paid in cash or Cash Equivalents (or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash
Equivalents, upon such conversion) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein,
(g)
any income (loss) (less all fees and expenses or charges related thereto) from the purchase, acquisition, early extinguishment,
conversion or cancellation of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs
written off and premiums paid) shall be excluded,
(h) any
impairment charge, asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to
intangible assets (including goodwill), long-lived assets, Investments in debt and equity securities, the amortization of
intangibles, and the effects of adjustments to accruals and reserves during a prior period relating to any change in the methodology
of calculating reserves for returns, rebates, warranties, inventories and other chargebacks (including government program rebates),
shall be excluded,
(i) any
(i) non-cash compensation expense as a result of grants of stock appreciation or similar rights, profits interests, stock options,
phantom equity, restricted stock or other rights or equity incentive programs and any non-cash charges associated with the rollover,
acceleration or payout of Capital Stock or options, phantom equity, profits interests or other rights with respect thereto by, or
to, officers, directors, employees or consultants of Holdings, the Borrower or any of the Restricted Subsidiaries, or any Parent
Entity or Equityholding Vehicle, (ii) income (loss) attributable to deferred compensation plans or trusts and (iii) any expense
(including taxes) in respect of payments made to option holders or holders of profits interests, phantom equity, restricted stock or
restricted stock units of the Borrower or any Parent Entity or Equityholding Vehicle in connection with, or as a result of, any
distribution being made to equityholders of the Borrower or any Parent Entity or Equityholding Vehicle, which payments are being
made to compensate such option holders or holders of profits interests, phantom equity, restricted stock or restricted stock units
as though they were equityholders at the time of, and entitled to share in, such distribution (to the extent such distribution to
equityholders is excluded from Consolidated Net Income), shall be excluded,
(j)
any fees and expenses (including any commissions or discounts) incurred during such period, or any amortization thereof for such
period, in connection with any Acquisition, Investment, asset Disposition, Change of Control, Incurrence, Refinancing, prepayment, redemption,
repurchase, acquisition, defeasance, extinguishment, retirement or repayment of Indebtedness, issuance of Capital Stock, or amendment,
supplement or other modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing
Date and any such transaction undertaken, but not completed and/or not successful) and any charges or non-recurring merger costs incurred
during such period as a result of any such transaction shall be excluded,
(k) accruals
and reserves that are established or adjusted as a result of the Transactions, or any Acquisition or Investment in accordance with GAAP,
(l) the
effects from applying purchase accounting, including applying recapitalization or purchase accounting to inventory, property and equipment,
software, goodwill and other intangible assets, in-process research and development, post-employment benefits, leases, Deferred Revenue
and debt-like items required or permitted by GAAP (including the effects of such adjustments pushed down to the Borrower or the Restricted
Subsidiaries), as a result of the Transactions or any other consummated Acquisition, or the amortization or write-off of any amounts
thereof, shall be excluded,
(m) any
foreign exchange gains or losses (whether or not realized) resulting from the impact of foreign currency changes on the valuation of
assets and liabilities on the consolidated balance sheet of the Borrower shall be excluded,
(n) any
non-cash interest expense and non-cash interest income, in each case to the extent there is no associated cash disbursement or receipt,
as the case may be, before the Latest Maturity Date, shall be excluded,
(o) the
amount of any cash tax benefits related to the tax amortization of intangible assets in such period shall be included,
(p) Transaction
Expenses (including any charges associated with the rollover, acceleration or payout of Capital Stock by management of the Target or
any of its Subsidiaries or Parent Entities in connection with the Transactions) shall be excluded,
(q) income
or expense related to changes in the fair value of contingent liabilities recorded in connection with the Transactions or any Acquisition
or other similar Investment shall be excluded,
(r) proceeds
received from business interruption insurance (to the extent not reflected as revenue or income in Net Income and to the extent that
the related loss was deducted in the determination of Net Income), shall be included,
(s) charges,
losses, lost profits, expenses or write-offs to the extent indemnified, reimbursed or insured by a third party, including expenses covered
by indemnification or reimbursement provisions in connection with the Transactions, an Acquisition or any other similar Investment, in
each case, to the extent that indemnification, reimbursement or insurance coverage has not been denied, the Borrower in good faith believes
that such amounts are recoverable from such indemnitors, reimbursers or insurers, and so long as such amounts are actually paid or reimbursed
to the Borrower or any of its Restricted Subsidiaries in cash or Cash Equivalents within one year after the related amount is first added
to Consolidated Net Income pursuant to this clause (s) (and if not so reimbursed within one year, such amount shall be deducted from
Consolidated Net Income during the next measurement period), shall be excluded; provided that such amounts shall only be included
in Consolidated Net Income under clause (ii) of the definition of “Available Amount” after such amounts are actually reimbursed
in cash,
(t) any
non-cash expenses, accruals, reserves or income related to adjustments to historical tax exposures shall be excluded; provided
that, if any such non-cash items represent an accrual or reserve for cash payments in any future period, the cash payment in respect
thereof in such future period shall be subtracted from Consolidated Net Income in such future period, but only to the extent of such
non-cash expense, accrual or reserve excluded pursuant to this clause (t),
(u) any
non-cash gain or loss attributable to the mark-to-market movement in the valuation of Hedging Obligations (to the extent the cash impact
resulting from such gain or loss has not been realized) or other derivative instruments pursuant to Financial Accounting Standards Board’s
Accounting Standards Codification No. 815-Derivatives and Hedging, shall be excluded,
(v) any
gain or loss relating to Hedging Obligations associated with transactions realized in the current period that has been reflected in Net
Income in prior periods and excluded from, or included in, as applicable, Consolidated Net Income pursuant to the preceding clause (u)
shall be included, and
(w) any
expense to the extent a corresponding amount is received in cash by the Borrower or any Restricted Subsidiaries from a Person other than
the Borrower or any Restricted Subsidiaries, provided such payment has not been included in determining Consolidated Net Income
(it being understood that if the amounts received in cash under any such agreement in any period exceed the amount of expense in respect
of such period, such excess amounts received may be carried forward and applied against expense in future periods).
“Consolidated
Secured Debt” shall mean, without duplication, as of any date of determination, (a) the aggregate principal amount of all Consolidated
Total Debt (determined without regard to clause (b) of the definition thereof) outstanding under this Agreement as of such date (but excluding
the effects of any discounting of Indebtedness resulting from the application of recapitalization or purchase accounting in connection
with any Acquisition or other similar Investment) and all other Consolidated Total Debt (determined without regard to clause (b) of the
definition thereof) secured by Liens on any assets or property of the Borrower or any Restricted Subsidiary minus (b) the aggregate
amount of cash and Cash Equivalents on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, excluding
cash and Cash Equivalents which are or should be listed as “restricted” on the consolidated balance sheet of the Borrower
and the Restricted Subsidiaries as of such date. It is understood that to the extent the Borrower or any Restricted Subsidiary Incurs
any Indebtedness and receives the proceeds of such Indebtedness, for purposes of determining any Incurrence test under this Agreement
and whether the Borrower is in pro forma compliance with any such test, the proceeds of such Incurrence shall not be considered cash or
Cash Equivalents for purposes of any “netting” pursuant to clause (b) of this definition.
“Consolidated
Secured Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Secured
Debt as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA for
such Test Period.
“Consolidated
Total Assets” shall mean, as of any date of determination, the total amount of all assets of the Borrower and the Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP as of such date.
“Consolidated
Total Debt” shall mean, as of any date of determination, (a) the aggregate principal amount of indebtedness of the Borrower
and the Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the
effects of any discounting of indebtedness resulting from the application of purchase accounting in connection with any Acquisition or
other similar Investment similar to those made for Acquisition), consisting of third-party indebtedness for borrowed money, Unpaid Drawings,
Financing Lease Obligations and third-party debt obligations evidenced by promissory notes or similar instruments, minus (b) the
aggregate amount of cash and Cash Equivalents on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such
date, excluding cash and Cash Equivalents which are listed as “restricted” on the consolidated balance sheet of the Borrower
and the Restricted Subsidiaries as of such date. It is understood that to the extent the Borrower or any Restricted Subsidiary Incurs
any Indebtedness and receives the proceeds of such Indebtedness, for purposes of determining any Incurrence test under this Agreement
and whether the Borrower is in pro forma compliance with any such test, the proceeds of such Incurrence shall not be considered cash or
Cash Equivalents for purposes of any “netting” pursuant to clause (b) of this definition.
“Consolidated
Total Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt
as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA for such
Test Period.
“Consolidated
Working Capital” shall mean, at any date, the excess of (a) the sum of all amounts (excluding all cash and Cash
Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like
caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date less (b) the sum of all
amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like
caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, including (for purposes of
both clauses (a) and (b)) current and long-term Deferred Revenue but excluding (for purposes of both clauses (a) and (b) above, as
applicable), without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness (including Letter of Credit
Obligations) under the Revolving Credit Facility, any Additional/Replacement Revolving Credit Facility, any Extended Revolving
Credit Facility or any other revolving credit facility that is effective in reliance on Section 10.1(u), to the extent otherwise
included therein, (iii) the current portion of interest, (iv) the current portion of current and deferred income taxes, (v) non-cash
compensation costs and expenses, (vi) any other liabilities that are not Indebtedness and will not be settled in cash or Cash
Equivalents during the next succeeding twelve month period after such date, (vii) the effects from applying recapitalization or
purchase accounting, (viii) any earn out obligations until 30 days after such obligation becomes contractually due and payable and
any earn-out obligation that becomes contractually due and payable to the extent (A) such Person is indemnified for the payment
thereof by a solvent Person reasonably acceptable to the Administrative Agent or (B) amounts to be applied to the payment thereof
are in escrow through customary arrangements and (ix) any asset or liability in respect of net obligations of such Person in respect
of Swap Contracts entered into in the ordinary course of business; provided that Consolidated Working Capital shall be
calculated without giving effect to (x) the depreciation of the Dollar relative to other foreign currencies or (y) changes to
Consolidated Working Capital resulting from non-cash charges and credits to consolidated current assets and consolidated current
liabilities (including, without limitation, derivatives and deferred income tax); provided, further, that for purposes
of calculating Excess Cash Flow, increases or decreases in working capital shall exclude the impact of adjusting items in the
definition of “Consolidated Net Income”.
“Contract Consideration”
shall have the meaning provided in the definition of the term “Excess Cash Flow.”
“Contractual
Obligation” shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of its property is bound other than the Obligations.
“Controlled
Investment Affiliate” shall mean, as to any Person, any other Person, other than any Investor, which directly or indirectly
controls, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such
Person) primarily for making direct or indirect equity or debt investments in the Borrower and/or other Person.
“Converted Restricted Subsidiary”
shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Converted Unrestricted
Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Corrective Extension Agreement” shall
have the meaning provided in Section 2.15(f).
“Credit
Agreement Refinancing Indebtedness” shall mean (a) Permitted Equal Priority Refinancing Debt, (b) Permitted Junior
Priority Refinancing Debt or (c) Permitted Unsecured Refinancing Debt; provided that, in each case, such Indebtedness is
Incurred to Refinance, in whole or in part, existing Term Loans or existing Revolving Credit Loans (or unused Revolving Credit
Commitments), any then-existing Additional/Replacement Revolving Credit Loans (or unused Additional/Replacement Revolving Credit
Commitments), any then-existing Extended Revolving Credit Loans (or unused Extended Revolving Credit Commitments), or any Loans
under any then- existing Incremental Facility (or, if applicable, unused Commitments thereunder), or any then-existing Credit
Agreement Refinancing Indebtedness (“Refinanced Debt”); provided, further, that (i) except for any
of the following that are only applicable to periods after the Latest Maturity Date, the covenants, events of default and guarantees
of such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest rates), interest
margins, rate floors, fees, funding discounts, original issue discounts, maturity, currency denomination and prepayment or
redemption premiums and terms) (when taken as a whole) are determined by the Borrower to be either (A) consistent with market terms
and conditions and conditions at the time of Incurrence or effectiveness (as determined by the Borrower in good faith) or (B) not
materially more restrictive on the Borrower and the Restricted Subsidiaries than those applicable to the Refinanced Debt, when taken
as a whole (provided that if the documentation governing such Credit Agreement Refinancing Indebtedness contains a Previously
Absent Financial Maintenance Covenant, the Administrative Agent shall be given prompt written notice thereof and this Agreement
shall be amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility
(provided, however, that if (x) both the Refinanced Debt and the related Credit Agreement Refinancing Indebtedness
that includes a Previously Absent Financial Maintenance Covenant consists of a revolving credit facility (whether or not the
documentation therefor includes any other facilities) and (y) the applicable Previously Absent Financial Maintenance Covenant is a
“springing” financial maintenance covenant for the benefit of such revolving credit facility or a covenant only
applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall only
be required to be included in this Agreement for the benefit of each revolving credit facility hereunder (and not for the benefit of
any term loan facility hereunder) and such Credit Agreement Refinancing Indebtedness shall not be deemed “more
restrictive” solely as a result of such Previously Absent Financial Maintenance Covenant benefiting only such revolving credit
facilities; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at
least five Business Days prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such
terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five
Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees), (ii) any such Indebtedness in the form of bonds, notes, loans or debentures or which Refinances, in whole or in part,
existing Term Loans, shall have a maturity that is no earlier than the earlier of the maturity of the Refinanced Debt and the Latest
Maturity Date and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt; provided that the
foregoing requirements of this clause (ii) shall not apply to the extent such Indebtedness constitutes a customary bridge facility,
so long as the long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged satisfies the
requirements of this clause (ii) and such conversion or exchange is subject only to conditions customary for similar conversions or
exchanges, (iii) any such Indebtedness which Refinances any existing Revolving Credit Loans (or unused Revolving Credit
Commitments), any then-existing Additional/Replacement Revolving Credit Loans (or unused Additional/Replacement Revolving Credit
Commitments) or any then-existing Extended Revolving Credit Loans (or unused Extended Revolving Credit Commitments) shall have a
maturity that is no earlier than the maturity of such Refinanced Debt and shall not require any mandatory commitment reductions
prior to the maturity of such Refinanced Debt; provided that the foregoing requirements of this clause (iii) shall not apply
to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which any such
customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (iii) and such conversion or
exchange is subject only to conditions customary for similar conversions or exchanges, (iv) except to the extent otherwise permitted
under this Agreement (subject to a dollar for dollar usage of any other basket set forth in Section 10.1, if applicable), such
Indebtedness shall not have a greater principal amount (or shall not have a greater accreted value, if applicable) than the
principal amount (or accreted value, if applicable) of the Refinanced Debt plus unpaid accrued interest, fees and premiums
(including tender premiums) (if any) thereon, defeasance costs, underwriting discounts and fees and expenses (including OID, closing
payments, upfront fees or similar fees) associated with the Refinancing plus an amount equal to any existing commitments
unutilized and letters of credit undrawn, (v) such Refinanced Debt shall be repaid, repurchased, redeemed, defeased, acquired or
satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (including tender premiums) (if
any) in connection therewith shall be paid substantially concurrently with the date such Credit Agreement Refinancing Indebtedness
is Incurred or made effective, (vi) except to the extent otherwise permitted hereunder, the aggregate unused revolving commitments
under such Credit Agreement Refinancing Indebtedness shall not exceed the unused Revolving Credit Commitments,
Additional/Replacement Revolving Credit Commitments or Extended Revolving Credit Commitments, as applicable, being replaced plus
undrawn letters of credit, (vii) in the case of any such Indebtedness in the form of bonds, notes, loans or debentures or which
Refinances, in whole or in part, existing Term Loans, the terms thereof shall not require any mandatory repayment, redemption,
repurchase, acquisition or defeasance (other than (x) in the case of bonds, notes or debentures, customary change of control, asset
sale event or casualty, eminent domain or condemnation event offers, AHYDO Catch-Up Payments and customary acceleration any time
after an event of default and (y) in the case of any term loans, mandatory prepayments that are on terms (when taken as a whole) not
materially more favorable to the lenders or holders providing such Indebtedness than those applicable to the Refinanced Debt (when
taken as a whole) prior to the maturity date of the Refinanced Debt, (viii) any Credit Agreement Refinancing
Indebtedness may not be guaranteed by any Persons that do not guarantee the Obligations and (ix) any Credit Agreement Refinancing Indebtedness
may not be secured by any assets that do not secure the Obligations.
“Credit
Documents” shall mean this Agreement, the Security Documents, the Guarantee, the Fee Letter, each Letter of Credit, any promissory
notes issued by the Borrower hereunder, any Incremental Agreement, any Extension Agreement and any Customary Intercreditor Agreement entered
into after the Closing Date to which the Collateral Agent and/or the Administrative Agent is a party.
“Credit
Event” shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance, increase in the
amount, or extension of a Letter of Credit.
“Credit
Facility” shall mean any of the Initial Term Loan Facility, any Incremental Term Loan Facility, the Revolving Credit Facility,
any Additional/Replacement Revolving Credit Facility, any Extended Term Loan Facility or any Extended Revolving Credit Facility, as applicable.
“Credit
Party” shall mean, collectively and/or, as applicable, individually, Holdings, the Borrower and each Subsidiary Guarantor.
“Cumulative
Consolidated Net Income” shall mean, as at any date of determination, Consolidated Net Income for the period (taken as one accounting
period) commencing on July 1, 2017 and ending on the last day of the most recent fiscal quarter for which Section 9.1 Financials have
been delivered.
“Cure Amount” shall have the meaning provided
in Section 11.11(a).
“Cure Deadline” shall have the meaning
provided in Section 11.11(a).
“Cure Right” shall have the meaning provided
in Section 11.11(a).
“Customary
Intercreditor Agreement” shall mean (a) to the extent executed in connection with the Incurrence of secured Indebtedness
Incurred by a Credit Party, the Liens on the Collateral securing which are intended to rank equal in priority to the Liens on the
Collateral securing the Obligations (but without regard to the control of remedies), at the option of the Borrower and the
Collateral Agent acting together in good faith, either (i) any intercreditor agreement substantially in the form of the Equal
Priority Intercreditor Agreement or (ii) a customary intercreditor agreement in form and substance reasonably acceptable to the
Collateral Agent and the Borrower, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall
rank equal in priority to the Liens on the Collateral securing the Obligations (but without regard to the control of remedies) and
(b) to the extent executed in connection with the Incurrence of secured Indebtedness Incurred by a Credit Party, the Liens on the
Collateral securing which are intended to rank junior in priority to the Liens on the Collateral securing the Obligations, at the
option of the Borrower and the Collateral Agent acting together in good faith, either (i) an intercreditor agreement substantially
in the form of the Junior Priority Intercreditor Agreement or (ii) a
customary intercreditor agreement in form and substance reasonably acceptable to the Collateral Agent and the Borrower, which
agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior in priority to the Liens on
the Collateral securing the Obligations.
“Debt
Fund Affiliate” shall mean any Affiliate of the Borrower (other than Holdings, the Borrower or any Restricted Subsidiary of
the Borrower) 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 or securities and that exercises investment discretion independent
from the private equity business of the Sponsor.
“Debt
Incurrence Prepayment Event” shall mean any Incurrence by the Borrower or any of the Restricted Subsidiaries of any
Indebtedness, but excluding any Indebtedness permitted to be Incurred under Section 10.1 (other than Incremental Term Loans Incurred
in reliance on clause (i)(x) of the proviso to Section 2.14(b), Permitted Additional Debt Incurred in reliance on Section
10.1(u)(i)(x) and, to the extent relating to Term Loans, Credit Agreement Refinancing Indebtedness).
“Debt Surviving Company” shall have
the meaning provided in the recitals to this Agreement.
“Debtor
Relief Laws” shall mean the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States
or other applicable jurisdictions from time to time in effect.
“Default”
shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulting
Lender” shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the
definition of “Lender Default.”
“Deferred
Blocker Consideration” shall have the meaning assigned to such term in the Acquisition Agreement.
“Deferred
Company Consideration” shall have the meaning assigned to such term in the Acquisition Agreement.
“Deferred
Revenue” shall mean, at any date, the amount set forth opposite the caption “deferred revenue” (or any like caption
or included in any other caption, including current and non-current designations) on a consolidated balance sheet at such date; provided
that such balance should be determined excluding the effects of acquisition method accounting.
“Designated
Non-Cash Consideration” shall mean the Fair Market Value of consideration that is not deemed to be cash or Cash
Equivalents and that is received by the Borrower or its Restricted Subsidiaries in connection with a Disposition pursuant to Section
10.4(c) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower
delivered to the Administrative Agent, setting forth the basis of such valuation (less the amount of the amount of cash or Cash
Equivalents received in connection with a subsequent Disposition, redemption or repurchase of, or collection or payment on, such
Designated Non-Cash Consideration).
“Disposed
EBITDA” shall mean, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount
for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references
to the Borrower and the Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” (and in the component
financial definitions used therein) were references to such Sold Entity or Business and its Subsidiaries or to such Converted Unrestricted
Subsidiary and its Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business.
“Disposition”
shall have the meaning provided in Section 10.4. The terms “Disposal”, “Dispose” and “Disposed
of” shall have correlative meanings.
“Disposition
Percentage” shall mean, with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event required to be applied
pursuant to Section 5.2(a)(i), the applicable percentage of Net Cash Proceeds required to be offered on any date of determination to prepay
Term Loans.
“Disqualified
Capital Stock” shall mean, with respect to any Person, any Capital Stock of such Person that, by its terms (or by the terms
of any security or other Capital Stock into which it is convertible or for which it is putable or exchangeable) or upon the happening
of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking
fund obligation or otherwise, other than solely as a result of a change of control, asset sale event or casualty, eminent domain or condemnation
event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale event or casualty, eminent domain
or condemnation event shall be subject to the prior repayment in full of the Loans and all other Obligations (other than Hedging Obligations
under any Secured Hedging Agreement, Cash Management Obligations under Secured Cash Management Agreements or contingent indemnification
obligations and other contingent obligations not then due and payable), (b) is redeemable or exchangeable at the option of the holder
thereof (other than solely for Qualified Capital Stock), other than as a result of a change of control, asset sale event or casualty,
eminent domain or condemnation event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale
event or casualty, eminent domain or condemnation event shall be subject to the prior repayment in full of the Loans and all other Obligations
(other than Hedging Obligations under any Secured Hedging Agreement, Cash Management Obligations under Secured Cash Management Agreements
or contingent indemnification obligations and other contingent obligations not then due and payable), in whole or in part, or (c) provides
for the scheduled payment of dividends in cash, in each case prior to the date that is ninety-one (91) days after the Latest Maturity
Date; provided that, if such Capital Stock is issued pursuant to any plan for the benefit of officers, directors, employees or
consultants of Holdings (or any Parent Entity thereof), the Borrower or any of its Subsidiaries or by any such plan to such officers,
directors, employees or consultants, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required
to be repurchased by Holdings (or any Parent Entity thereof), the Borrower or any of its Subsidiaries in order to satisfy applicable statutory
or regulatory obligations or as a result of such officer’s, director’s, employee’s or consultant’s termination,
death or disability.
“Disqualified
Lenders” shall mean (a) such Persons that have been specified in writing to the Administrative Agent and the Lead Arrangers
on or prior to June 19, 2017 as being “Disqualified Lenders,” (b) those Persons who are competitors of the Borrower and its
Subsidiaries (including the Target, Amplify and their respective Subsidiaries) that are separately identified in writing by the Borrower
from time to time to the Administrative Agent and (c) in the case of each of clauses (a) and (b), any of their Affiliates (which, for
the avoidance of doubt, shall not include any bona fide debt investment funds that are Affiliates of the Persons referenced in clause
(b) above) that are either (i) identified in writing to the Administrative Agent by the Borrower from time to time or (ii) readily identifiable
on the basis of such Affiliate’s name as an Affiliate of such entity; provided that any Person that is a Lender and subsequently
becomes a Disqualified Lender (but was not a Disqualified Lender on the Closing Date or at the time it became a Lender) shall not retroactively
be deemed to be a Disqualified Lender hereunder. The identity of Disqualified Lenders may be communicated by the Administrative Agent
to a Lender upon request, but will not be otherwise posted or distributed to any Person by the Administrative Agent.
“Distressed Person” shall have the meaning
provided in the definition of “Lender-Related Distress Event.”
“Dollars,” “U.S. Dollars”
and “$” shall mean dollars in lawful currency of the United States of America.
“Domestic Restricted Subsidiary”
shall mean each Restricted Subsidiary of the Borrower that is a Domestic Subsidiary.
“Domestic Subsidiary”
shall mean each Subsidiary of the Borrower that is organized under the Applicable Laws of the United States, any state thereof, or the
District of Columbia.
“Drawing” shall have the meaning provided
in Section 3.4(b).
“EEA
Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country that is
subject to the supervision of an EEA Resolution Authority, (b) any Person established in an EEA Member Country that is a parent of an
institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that 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” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA
Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective
Yield” shall mean, as to any Indebtedness, the effective yield paid by the Borrower on such Indebtedness as determined by the
Borrower and the Administrative Agent in a manner consistent with generally accepted financial practices, taking into account the applicable
interest rate margins, any interest rate “floors” (the effect of which floors shall be determined in a manner set forth in
the proviso below and assuming that, if interest on such Indebtedness is calculated on the basis of a floating rate, that the “Eurodollar
Rate” or similar component of such formula is included in the calculation of Effective Yield) or similar devices and all fees, including
upfront or similar fees or OID (amortized over the shorter of (x) the remaining Weighted Average Life to Maturity of such Indebtedness
and (y) the four years following the date of Incurrence thereof, and, if applicable, assuming any Additional/Replacement Revolving Credit
Commitments were fully drawn) payable generally by the Borrower to Lenders or other institutions providing such Indebtedness, but excluding
any commitment fees, arrangement fees, structuring fees, closing payments or other similar fees payable in connection therewith that are
not generally shared with all relevant Lenders (in their capacities as lenders) and, if applicable, ticking fees accruing prior to the
funding of such Indebtedness and customary consent or amendment fees for an amendment paid generally to consenting Lenders (and regardless
of whether any such fees are paid to, or shared in whole or in part with, any Lender); provided that, with respect to any Indebtedness
that includes a “floor”, (a) to the extent that the Reference Rate on the date that the Effective Yield is being calculated
is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the
purpose of calculating the Effective Yield and (b) to the extent that the Reference Rate on the date that the Effective Yield is being
calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.
“Eligible
Assignee” shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (subject, in
each case, to such consents, if any, as may be required under Section 13.6(b)), other than, in each case, (i) a natural person, (ii) a
Defaulting Lender or (iii) a Disqualified Lender.
“Employee
Investors” shall mean the current, former or future officers, directors, managers and employees (and Controlled Investment Affiliates
and Immediate Family Members of the foregoing) of Holdings, the Borrower, the Restricted Subsidiaries or any Parent Entity who are or
who become direct or indirect investors in Holdings, any Parent Entity, any Equityholding Vehicle, or in the Borrower, including any such
officers, directors, managers or employees owning through an Equityholding Vehicle. For the avoidance of doubt, the Rollover Investors
constitute Employee Investors.
“EMU” shall mean the economic and monetary
union as contemplated in the Treaty on European Union.
“Environment”
shall mean ambient air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata and natural
resources such as wetlands, flora and fauna.
“Environmental
Claims” shall mean any and all administrative, regulatory or judicial actions, suits, orders, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by the Borrower or any of
its Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing
transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law or any
permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including (i) any
and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from the Release or threatened Release of Hazardous
Materials or arising from alleged injury or threat of injury to health, safety or the Environment.
“Environmental
Law” shall mean any applicable federal, state, provincial, territorial, foreign, municipal or local statute, law, rule, regulation,
ordinance, code, permit, binding agreement issued, promulgated or entered into by or with any Governmental Authority or rule of common
law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including
any binding judicial or administrative order, consent decree or judgment, in each case relating to pollution or the protection of the
Environment including, those relating to generation, use, handling, storage, treatment, Release or threat of Release of Hazardous Materials
or, to the extent relating to exposure to Hazardous Materials, human health or safety.
“Equal
Priority Intercreditor Agreement” shall mean the Equal Priority Intercreditor Agreement substantially in the form of Exhibit
G-1 among (x) the Collateral Agent and (y) one or more representatives of the holders of one or more classes of Permitted Additional Debt
and/or Permitted Equal Priority Refinancing Debt, with any immaterial changes and material changes thereto in light of the prevailing
market conditions, which material changes shall be posted to the Lenders not less than five Business Days before execution thereof and,
if the Required Lenders shall not have objected to such changes within five Business Days after posting, then the Required Lenders shall
be deemed to have agreed that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement
(with such changes) is reasonable and to have consented to such intercreditor agreement (with such changes) and to the Administrative
Agent’s and/or Collateral Agent’s execution thereof.
“Equity Contribution” shall have the
meaning provided in the recitals to this Agreement.
“Equityholding
Vehicle” shall mean any Parent Entity and any equityholder thereof through which current, former or future officers, directors,
employees, managers or consultants of Holdings or the Borrower or any of their Subsidiaries or Parent Entity hold Capital Stock of such
Parent Entity.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Section references to ERISA are to ERISA
as in effect on the Closing Date and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
“ERISA
Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) that together with Holdings, the Borrower or a Restricted
Subsidiary thereof is treated as a “single employer” within the meaning of Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(b), (c), (m) and (o) of
the Code.
“Escrowed
Proceeds” shall mean the proceeds from the offering of any debt securities or other Indebtedness paid into an escrow account
with an independent escrow agent on the date of the applicable offering or incurrence pursuant to escrow arrangements that permit the
release of amounts on deposit in such escrow account upon satisfaction of certain conditions or the occurrence of certain events. The
term “Escrowed Proceeds” shall include any interest earned on the amounts held in escrow.
“EU Bail-In Legislation
Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person),
as in effect from time to time.
“Eurodollar Borrowing” shall mean each
Borrowing of a Eurodollar Loan.
“Eurodollar Loan”
shall mean any Loan bearing interest at a rate determined by reference to the Eurodollar Rate.
“Eurodollar
Rate” shall mean, (a) with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum equal to
greater of (i) (A) with regard to Initial Term Loans only, 1.00% and (B) with regard to Revolving Credit Loans, 0.00% and (ii) the product
of (A) the LIBOR in effect for such Interest Period and (B) Statutory Reserves
Where,
“LIBOR”
shall mean, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters
Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being
the LIBOR01 page) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period
in Dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest
Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or
service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other
service which displays LIBOR for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such
Interest Period; provided that if LIBOR is quoted under either of the preceding clauses (i) or (ii), but there is no such quotation
for the Interest Period elected, LIBOR shall be equal to the Interpolated Rate; and
“Statutory
Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative
Agent or any Lender (including any branch, Affiliate, or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities
(as defined in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation
D of the Board) and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that
may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
and (b) with respect to any ABR Loan, an interest rate
per annum equal to the LIBOR in effect for an Interest Period of one month
Where,
“LIBOR”
shall mean (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the
Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page
currently being the LIBOR01 page) for deposits in Dollars with a one-month term, determined as of approximately 11:00 a.m. (London,
England time), on the day of determination of such rate, or (ii) in
the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall
cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service
which displays LIBOR for deposits in Dollars with a one-month term, determined as of approximately 11:00 a.m. (London, England time)
on the date of determination of such rate; provided that if LIBOR is quoted under either of the preceding clauses (i) or
(ii), but there is no such quotation for a one- month Interest Period, LIBOR shall be equal to the Interpolated Rate.
“Event of Default” shall have the meaning
provided in Section 11.
“Excess Cash Flow” shall mean, for any
period, an amount equal to the excess of
(a) the sum, without duplication, of:
(i) Consolidated Net Income for such period;
(ii)
an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income (provided
that, in each case, if any non-cash charge represents an accrual or reserve for cash items in any future period, the cash payment in respect
thereof in such future period shall be subtracted from Excess Cash Flow in such future period);
(iii)
decreases in Consolidated Working Capital and decreases in long-term accounts receivable, in each case as of the end of such period
from the Consolidated Working Capital and long-term accounts receivable as of the beginning of such period (except, in the case of each
of the foregoing, any such increases or decreases that are as a result of the reclassification of items from short-term to long-term or
vice versa) (other than any such decreases or increases, as applicable, arising from Acquisitions or Dispositions outside the ordinary
course of assets, business units or property by the Borrower or any of the Restricted Subsidiaries completed during such period or the
application of recapitalization or purchase accounting);
(iv)
an amount equal to the aggregate net non-cash loss on the Disposition of assets, business units or property by the Borrower and
the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in
arriving at such Consolidated Net Income;
(v)
cash payments received in respect of Hedging Agreements during such period to the extent not included in arriving at such Consolidated
Net Income; and
(vi)
income tax expense to the extent deducted in arriving at such Consolidated
Net Income (net of any adjustments pursuant to clause (o) of Consolidated Net Income for cash tax benefits related to the tax
amortization of intangible assets in such period);
minus
(b) the sum, without duplication, of:
(i)
an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (but excluding any non-cash
credit to the extent representing the reversal of an accrual or reserve described in clause (a)(ii) above) and cash charges included in
clauses (a) through (w) of the definition of the term “Consolidated Net Income”;
(ii)
without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Capital Expenditures
or acquisitions of Intellectual Property made in cash or accrued during such period, except to the extent that such Capital Expenditures
or acquisitions of Intellectual Property were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock
by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition
outside the ordinary course of business;
(iii) the
aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (A) the
principal component of payments in respect of Financing Lease Obligations, (B) all scheduled principal repayments of the Term Loans,
Permitted Additional Debt and Credit Agreement Refinancing Indebtedness, in each case to the extent such payments are permitted
hereunder and actually made and (C) the amount of any mandatory prepayment of Term Loans actually made pursuant to Section 5.2(a)(i)
and any mandatory redemption, repurchase, prepayment, defeasance, acquisition or similar payment of Permitted Additional Debt or
Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in each
such case from the proceeds of any Disposition and that resulted in an increase to Consolidated Net Income (and have not otherwise
been excluded under clause (c) of the definition thereof) and not in excess of the amount of such increase but excluding (1) all
other prepayments, repurchases, defeasances, acquisitions, redemptions and/or similar payments of Term Loans and (2) all prepayments
of revolving credit loans and swingline loans permitted hereunder made during such period (other than in respect of any revolving
credit facility (other than in respect of (x) the Revolving Credit Facility, any Extended Revolving Credit Facility or
Additional/Replacement Revolving Credit Facility and (y) other revolving loans that are effective in reliance on Section 10.1(a) or
Section 10.1(u)) to the extent there is an equivalent permanent reduction in commitments thereunder)), except to the extent financed
by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the
Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(iv)
an amount equal to the aggregate net non-cash gain on the Disposition of property by the Borrower and the Restricted Subsidiaries
during such period (other than the Disposition of property in the ordinary course of business) to the extent included in arriving at such
Consolidated Net Income;
(v)
increases in Consolidated Working Capital and increases in long-term accounts receivable in each case as of the end of such period
from the Consolidated Working Capital and long-term accounts receivable as of the beginning of such period (except, in the case of each
of the foregoing, any such increases or decreases that are as a result of the reclassification of items from short-term to long-term or
vice versa) (other than any such increases or decreases, as applicable, arising from Acquisitions or Dispositions outside the ordinary
course by the Borrower and the Restricted Subsidiaries during such period or the application of recapitalization or purchase accounting);
(vi)
cash payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower
and the Restricted Subsidiaries other than Indebtedness, except to the extent that such payments were financed by the Incurrence of long-
term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted
Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(vii) without
duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Investments made in cash (other
than Investments made pursuant to Sections 10.5(b), (f), (g), (h), (i), (n) and (s)) during such period, except to the extent that
such Investments were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of
capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the
ordinary course of business;
(viii)
without duplication of amounts deducted pursuant to clause (xii) below, the amount of Restricted Payments (other than Restricted
Investments) paid in cash during such period, except to the extent that such Restricted Payments were financed by the Incurrence of long-term
Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted
Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(ix) the
aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries in cash during such period (including
expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, except to
the extent that such expenditures were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by,
or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any
Disposition outside the ordinary course of business;
(x)
the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries
during such period that are required to be made in connection with any prepayment, redemption, defeasance, acquisition, repurchase and/or
similar payment of Indebtedness, except to the extent that such payments were financed by the Incurrence of long-term Indebtedness by,
or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or
using the proceeds of any Disposition outside the ordinary course of business;
(xi)
without duplication of amounts deducted from Excess Cash Flow in other periods, (A) the aggregate consideration required to be
paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”)
entered into prior to or during such period and (B) any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries
(the “Planned Expenditures”) in the case of each of clauses (A) and (B), relating to Acquisitions (or other similar
Investments), Capital Expenditures (including Capitalized Software Expenditures) or acquisitions of Intellectual Property to be consummated
or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except to the extent financed
by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower
or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business); provided
that, to the extent that the aggregate amount of cash actually utilized to finance such Acquisitions (or other similar Investments), Capital
Expenditures (including Capitalized Software Expenditures) or acquisitions of Intellectual Property during such following period of four
consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added
to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters;
(xii)
without duplication of any amounts deducted pursuant to clause (viii) above, the aggregate amount of all payments paid in cash
by the Borrower and the Restricted Subsidiaries during such period in connection with, or necessary to consummate, the Transactions;
(xiii) income taxes, including penalties and interest, paid in cash in such period; and
(xiv)
cash expenditures made in respect of Hedging Agreements during such period to the extent not deducted in arriving at such Consolidated
Net Income.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Rate” shall mean on any day with respect to any currency (other than Dollars), the rate at which such currency may be
exchanged into any other currency (including Dollars), as set forth at approximately 11:00 a.m. (London time) on such day on the
Bloomberg page or screen for such currency. In the event that such rate does not appear on any Bloomberg page or screen, the
Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be
agreed by the Administrative Agent and the Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange
operations in respect of such currency are then being conducted, at or about 11:00 a.m., local time, on such date for the purchase
of the relevant currency for delivery two Business Days later.
“Excluded Capital Stock” shall mean:
(a) any
Capital Stock with respect to which, in the reasonable judgment of the Borrower and the Collateral Agent as agreed in writing, the cost
or other consequences (including any material adverse tax consequences) of pledging such Capital Stock shall be excessive in view of
the benefits to be obtained by the Secured Parties therefrom,
(b) solely
in the case of any pledge of Capital Stock of any Foreign Subsidiary or FSHCO to secure the Obligations, any Capital Stock that is Voting
Stock of such Foreign Subsidiary or FSHCO in excess of 65% of the outstanding Capital Stock that is Voting Stock of such Foreign Subsidiary
or FSHCO,
(c) any
Capital Stock to the extent, and for so long as, the pledge thereof would be prohibited by any Applicable Law (including financial assistance,
fraudulent conveyance, preference, thin capitalization, capital preservation or similar laws or regulations and any legally effective
requirement to obtain the consent of any Governmental Authority to such pledge unless such consent has been obtained),
(d) any “margin stock” (as defined in Regulation U),
(e) the Capital Stock of any Person, other than any Wholly-Owned Restricted Subsidiary to the extent, and for so long as, the pledge
of such Capital Stock would be prohibited by the terms of any Contractual Obligation, Organizational Document, joint venture agreement
or shareholders’ agreement applicable to such Person or legally effective Contractual Obligations or create an enforceable right
of termination in favor of any other party thereto (other than Holdings, the Borrower or any wholly owned Restricted Subsidiary of the
Borrower),
(f) the Capital Stock of any Subsidiary of a
Foreign Subsidiary or any Subsidiary of a FSHCO,
(g) the Capital Stock of any Unrestricted Subsidiary or of any Receivables Subsidiary, and
(h) any
Capital Stock of any Subsidiary to the extent that the pledge of such Capital Stock would result in material adverse Tax consequences
to Holdings, the Borrower or any Subsidiary as reasonably determined by the Borrower in consultation with (but without the consent of)
the Collateral Agent.
“Excluded
Contribution” shall mean the Net Cash Proceeds, the Fair Market Value of marketable securities or the Qualified Proceeds, in
each case received by the Borrower from capital contributions to the common Capital Stock of the Borrower or sales or issuances of common
Capital Stock of the Borrower permitted hereunder, in each case, after the Closing Date (other than any amount to the extent used in the
Cure Amount) and designated by the Borrower to the Administrative Agent as an Excluded Contribution within 5 Business Days of the date
such capital contributions are made or the date the applicable Capital Stock is issued or sold.
“Excluded Property” shall have the meaning
provided in the Security Agreement.
“Excluded Subsidiary” shall mean:
(a)
any Subsidiary that is not a wholly owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor
pursuant to the requirements of Section 9.10 (for so long as such Subsidiary remains a non-wholly owned Subsidiary),
(b)
any Subsidiary that is prohibited by (x) Applicable Law (including financial assistance, fraudulent conveyance, preference, thin
capitalization, capital preservation or similar laws or regulations) or (y) Contractual Obligation from guaranteeing the Obligations (and
for so long as such restrictions or any replacement or renewal thereof is in effect); provided that in the case of clause (y),
such Contractual Obligation existed on the Closing Date or, with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary
after the Closing Date (and so long as such Contractual Obligation was not incurred in contemplation of such acquisition), on the date
such Subsidiary is so acquired,
(c)
any Domestic Subsidiary that is (i) a FSHCO or (ii) a direct or indirect Subsidiary of a CFC,
(d)
any Immaterial Subsidiary (provided that the Borrower shall not be permitted to exclude Immaterial Subsidiaries from guaranteeing
the Obligations to the extent that (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries (other than Unrestricted
Subsidiaries) excluded by this clause (d) exceeds 10% of the consolidated gross revenues of the Borrower and its Restricted Subsidiaries
that are not otherwise Excluded Subsidiaries by virtue of any of the other clauses of this definition, except for this clause (d), for
the Test Period most recently ended on or prior to the date of determination or (ii) the aggregate amount of total assets for all Immaterial
Subsidiaries (other than Unrestricted Subsidiaries) excluded by this clause (d) exceeds 10% of the aggregate amount of Consolidated Total
Assets of the Borrower and its Restricted Subsidiaries that are not otherwise Excluded Subsidiaries by virtue of any other clauses of
this definition, except for this clause (d), as at the end of the Test Period most recently ended on or prior to the date of determination),
(e)
any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower (confirmed in writing
by notice to the Borrower and the Collateral Agent), the cost or other consequences (including any material adverse Tax consequences)
of providing a guarantee shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom,
(f)
each Foreign Subsidiary and each Unrestricted Subsidiary,
(g)
each other Restricted Subsidiary acquired pursuant to an Acquisition or other similar Investment and financed with secured Indebtedness
Incurred pursuant to Section 10.1(j) and the Liens securing which are permitted by Section 10.2(f) (and, for the avoidance of doubt,
not Incurred in contemplation of such Acquisition or other similar Investment), and each Restricted Subsidiary acquired in
such
Acquisition or other similar Investment that guarantees such Indebtedness, in each case to the extent
that,
and for so long as, the documentation relating to such Indebtedness to which such Restricted Subsidiary is a party prohibits such Subsidiary
from guaranteeing the Obligations,
(h)
any Subsidiary to the extent that the guarantee of the Obligations would result in material adverse tax consequences to the Borrower
or any Subsidiary as reasonably determined by the Borrower in consultation with (but without the consent of) the Administrative Agent,
and confirmed in writing by notice to the Borrower and the Collateral Agent,
(i)
any Subsidiary that would require any consent, approval, license or authorization from any Governmental Authority to provide a guarantee
unless such consent, approval, license or authorization has been received, or is received after commercially reasonable efforts by such
Subsidiary to obtain the same, which efforts may be requested by the Administrative Agent,
(j)
any not-for-profit Subsidiaries, Captive Insurance Companies, Receivables Subsidiary or other Special Purpose Subsidiaries designated
in writing by the Borrower from time to time to the Administrative Agent and the Collateral Agent, and
(k)
any Subsidiary that does not have the legal capacity to provide a guarantee of the Obligations (provided that the lack of such legal
capacity does not arise from any action or omission of Holdings or any other Credit Party).
“Excluded
Swap Obligation” shall mean, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion
of the guarantee of such Guarantor pursuant to the Guarantee of, or the grant by such Guarantor of a security interest to secure, such
Swap Obligation (or any guarantee pursuant to the Guarantee thereof) is or becomes illegal or unlawful 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)
(i) by virtue of such Guarantor’s failure to constitute an “eligible contract participant,” as defined in the Commodity
Exchange Act and the regulations thereunder (determined after giving pro forma effect to any applicable keep well, support, or other
agreement for the benefit of such Guarantor and any and all applicable guarantees of such Guarantor’s Swap Obligations by other
Credit Parties), at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would
become effective with respect to such Swap Obligation or (ii) in the case of a Swap Obligation that is subject to a clearing requirement
pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity,” as defined in section
2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor
becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded
Swap Obligation” of such Guarantor as specified in any agreement between the relevant Credit Parties and Hedge Bank applicable
to such Swap Obligations. If a Swap Obligation arises under a Master Agreement governing more than one Swap, such exclusion shall apply
only to the portion of such Swap Obligation that is attributable to the Swap for which such guarantee or security interest is or becomes
excluded in accordance with the first sentence of this definition.
“Excluded
Taxes” shall have the meaning provided in Section 5.4(a).
“Existing
Class” shall mean Existing Term Loan Classes and each Class of Existing Revolving Credit Commitments.
“Existing
Credit Agreement” shall mean that certain Credit Agreement, dated as of December 21, 2016 (as amended, supplemented or otherwise
modified from time to time prior to the Closing Date), by and among Wirepath Home Systems, LLC, Wirepath Home Systems Holdco LLC, the
lenders from time to time party thereto referred to therein, Antares Capital LP, as the administrative agent and collateral agent, and
the other parties thereto.
“Existing
Debt Refinancing” shall mean the repayment in full of all principal, accrued and unpaid interest, fees, premium, if any, and
other amounts outstanding under the Existing Credit Agreement, other than (i) contingent obligations not then due and payable and that
by their terms survive the termination of the Existing Credit Agreement and (ii) the Existing Letters of Credit, the termination of all
commitments to extend credit thereunder and the termination and/or release of any security interests and guarantees in connection therewith.
“Existing
Letters of Credit” shall mean all the letters of credit listed on Schedule 1.1(b).
“Existing
Revolving Credit Class” shall have the meaning provided in Section 2.15(b).
“Existing
Revolving Credit Commitments” shall have the meaning provided in Section 2.15(b).
“Existing
Revolving Credit Loans” shall have the meaning provided in Section 2.15(b).
“Existing
Term Loan Class” shall have the meaning provided in Section 2.15(a).
“Expected
Cure Amount” shall have the meaning provided in Section 11.11(b).
“Extended
Loans/Commitments” shall mean Extended Term Loans, Extended Revolving Credit Loans and/or Extended Revolving Credit Commitments.
“Extended
Repayment Date” shall have the meaning provided in Section 2.5(c).
“Extended
Revolving Credit Commitments” shall have the meaning provided in Section 2.15(b).
“Extended
Revolving Credit Facility” shall mean each Class of Extended Revolving Credit Commitments established pursuant to Section 2.15(b).
“Extended
Revolving Credit Loans” shall have the meaning provided in Section 2.15(b).
“Extended
Term Loan Facility” shall mean each Class of Extended Term Loans made pursuant to Section 2.15.
“Extended
Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
“Extended
Term Loans” shall have the meaning provided in Section 2.15(a).
“Extending
Lender” shall have the meaning provided in Section 2.15(c).
“Extension
Agreement” shall have the meaning provided in Section 2.15(d).
“Extension
Date” shall have the meaning provided in Section 2.15(e).
“Extension
Election” shall have the meaning provided in Section 2.15(c).
“Extension
Request” shall mean Term Loan Extension Requests and Revolving Credit Extension Requests.
“Extension
Series” shall mean all Extended Term Loans or Extended Revolving Credit Commitments (as applicable) that are established pursuant
to the same Extension Agreement (or any subsequent Extension Agreement to the extent such Extension Agreement expressly provides that
the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any
previously established Extension Series) and that provide for the same interest margins, extension fees, if any, and amortization schedule.
“Fair
Market Value” shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration
obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at
arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics
of such asset, as reasonably determined by the Borrower.
“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (and any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices pursuant
to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (or any law implementing
such an intergovernmental agreement).
“FCPA”
shall have the meaning provided in Section 8.19.
“Federal
Funds Effective Rate” shall mean, 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.
“Fee
Letter” shall mean the Credit Facilities Fee Letter, dated as of June 19, 2017, among UBS AG, Stamford Branch, UBS Securities
LLC, SunTrust Bank, SunTrust Robinson Humphrey, Inc. and Holdings.
“Fees”
shall mean all amounts payable pursuant to or referred in Section 4.1.
“Financial
Performance Covenant” shall mean the covenant of the Borrower set forth in Section 10.10.
“Financial
Performance Covenant Event of Default” shall have the meaning provided in Section 11.3.
“Financing
Lease Obligation” shall mean, as applied to any Person, an obligation that is required to be accounted for as a financing or
capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement
for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability
in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding
the footnotes thereto) in accordance with GAAP.
“First Incremental Agreement” shall mean
that certain Incremental Agreement No. 1, dated as of February 5, 2018 among the Borrower, Holdings, the other Guarantors, the Tranche
B Term Lenders party thereto and the Administrative Agent.
“First Incremental Agreement Effective
Date” shall have the meaning provided in the First Incremental Agreement.
“First
Lien Obligations” shall mean the Obligations, any Permitted Additional Debt Obligations (other than any Permitted Additional
Debt Obligations that are unsecured or are secured by a Lien ranking junior to the Liens securing the Obligations (but without regard
to control of remedies)) and any Permitted Equal Priority Refinancing Debt and Indebtedness in respect of Term Loan Exchange Notes, collectively.
“Flood
Documents” shall have the meaning provided in Section 9.14(c)(i).
“Flood
Hazard Property” shall have the meaning provided in Section 9.14(c)(i).
“Flood
Insurance Laws” shall mean, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the
National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute
thereto, (b) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (c) the Biggert-Waters
Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign
Plan” shall mean any pension plan maintained or contributed to by Holdings, the Borrower or any Restricted Subsidiary with
respect to its respective employees employed outside the United States.
“Foreign
Restricted Subsidiary” shall mean any Restricted Subsidiary that is not a Domestic Subsidiary.
“Foreign
Subsidiary” shall mean each Subsidiary of the Borrower that is not a Domestic Subsidiary.
“Fronting
Fee” shall have the meaning provided in Section 4.1(b).
“FSHCO”
shall mean any direct or indirect Domestic Subsidiary that has no material assets other than Capital Stock (including any debt instrument
treated as equity for U.S. federal income tax purposes) or Indebtedness of one or more direct or indirect Foreign Subsidiaries that are
CFCs.
“Funded
Debt” shall mean all indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than
one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of the
Borrower or any such Restricted Subsidiary, to a date more than one year from such date or arises under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness
in respect of the Loans.
“GA
Equityholders” shall mean General Atlantic (Amplify) HoldCo LLC.
“GAAP”
shall mean generally accepted accounting principles in the United States of America, as in effect from time to time, subject to Section
1.3(a). Notwithstanding the foregoing, at any time after adoption of IFRS by the Borrower for its financial statements and reports for
all financial reporting purposes, the Borrower may elect to apply IFRS for all purposes of this Agreement and the other Credit Documents,
in lieu of United States GAAP, and, upon any such election, references herein or in any other Credit Document to GAAP shall be construed
to mean IFRS as in effect from time to time; provided that (a) any such election once made shall be irrevocable (and shall only
be made once), (b) all financial statements and reports required to be provided after such election pursuant to this Agreement shall
be prepared on the basis of IFRS and (c) from and after such election, all ratios, computations and other determinations (i) based on
GAAP contained in this Agreement shall be computed in conformity with IFRS and (ii) in this Agreement that require the application of
GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated
or determined in accordance with GAAP; provided, further, that in the event of any such election by the Borrower, any financial
ratio calculations or thresholds (including the Financial Maintenance Covenant) in this Agreement may be recalibrated to reflect the
election to implement IFRS so long as (1) such recalibration is limited to changes in the calculation of such thresholds or covenant
levels due to the effect of differences between GAAP and IFRS, (2) the recalibrated ratios and calculations shall be mutually agreed
between the Administrative Agent and the Borrower, unless the Required Lenders have given notice of their objection to such recalibration
within five Business Days of receiving notice thereof, and (3) any such recalibration shall be done in a manner such that after giving
effect to such recalibration, the recalibrated thresholds and covenant levels shall be consistent with the intention of the respective
thresholds and covenant levels calculated under GAAP prior to such election. The Borrower shall give notice of any election to the Administrative
Agent with 10 Business Days of such election. For the avoidance of doubt, solely making an election (without any other action) referred
to in this definition will not be treated as an incurrence of Indebtedness.
“Governmental
Authority” shall mean the government of the United States, any foreign country or any multinational authority, or any state,
province, territory, municipality or other political subdivision thereof, and any entity, body or authority exercising executive, legislative,
judicial, taxing, regulatory or administrative functions of or pertaining to government, including the PBGC and other quasi-governmental
entities established to perform such functions.
“Guarantee”
shall mean the Guarantee, dated as of the Closing Date, made by each Guarantor in favor of the Collateral Agent for the benefit of the
Secured Parties, substantially in the form of Exhibit A.
“Guarantee
Obligations” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness
of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation
of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor
to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect
thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments
for deposit or collection 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 or disposition of assets permitted under this Agreement (other than with respect
to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of
the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Guarantors”
shall mean (a) Holdings, (b) each wholly owned Domestic Subsidiary of the Borrower that is Restricted Subsidiary (other than an Excluded
Subsidiary) on the Closing Date, (c) the Borrower (other than with respect to its own Obligations) and (d) each Subsidiary of the Borrower
that becomes a party to the Guarantee after
the
Closing Date pursuant to Section 9.10.
“Hazardous
Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam
insulation, transformers or other equipment that contains dielectric fluid containing regulated levels of polychlorinated biphenyls,
asbestos, asbestos-containing materials, mold and radon gas; (b) any chemicals, materials or substances defined as or included in the
definition of “hazardous substances,” “hazardous waste,” “waste,” “hazardous materials,”
“extremely hazardous waste,” “restricted hazardous waste,” “subject waste,” “toxic substances,”
“toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any Applicable
Law pertaining to pollution or the protection of the Environment; and (c) any other chemical, material or substance, which is prohibited,
limited or regulated by any Applicable Law pertaining to pollution or the protection of the Environment.
“Hedge
Bank” shall mean any Person that is a counterparty to a Hedging Agreement with a Credit Party or one of its Restricted Subsidiaries,
in its capacity as such, and that either (i) is a Lender, an Agent, a Lead Arranger, a Joint Bookrunner or an Affiliate of a Lender,
an Agent, a Lead Arranger or a Joint Bookrunner at the time it enters into such Hedging Agreement or (ii) becomes a Lender, an Agent
or an Affiliate of a Lender or an Agent after it has entered into such Hedging Agreement; provided that no such Person (except
an Agent) shall be considered a Hedge Bank until such time as it shall have delivered written notice to the Collateral Agent that such
a transaction has been entered into and that such Person constitutes a Hedge Bank entitled to the benefits of the Security Documents.
For purposes of the preceding sentence, a Person may deliver one notice confirming that it constitutes a “Hedge Bank” with
respect to all Hedging Agreements entered into pursuant to a specified Master Agreement. For the avoidance of doubt, each Agent shall
constitute a Hedge Bank to the extent it has entered into a Hedging Agreement.
“Hedging
Agreement” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement,
and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed
by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Hedging
Obligations” shall mean, with respect to any Person, the obligations of such Person under Hedging Agreements.
“Historical
Financial Statements” shall mean (a) audited consolidated balance sheets of the Wirepath Home Systems Holdco LLC (or the predecessor
thereto) and its subsidiaries as at the end of, and related consolidated statements of operations, statement of members’ equity
and statement of cash flows of Wirepath Home Systems Holdco LLC (or the predecessor thereto) and its subsidiaries for, the fiscal years
ended December 31, 2015 and December 31, 2016 and (b) an unaudited consolidated balance sheet of Wirepath Home Systems Holdco LLC (or
the predecessor thereto) and its subsidiaries as of March 31, 2017, and the related consolidated statement of operations, statement of
members’ equity and statement of cash flows as of and for the three-month period ended March 31, 2017.
“Holdings”
shall mean (i) Holdings (as defined in the preamble to this Agreement) or (ii) at the election of the Borrower, any other Person or Persons
(the “New Holdings”) that is a Subsidiary of (or are Subsidiaries of) Holdings or of any Parent Entity of Holdings
(or the previous New Holdings, as the case may be) (the “Previous Holdings”) but not the Borrower; provided
that (a) such New Holdings directly or indirectly owns 100% of the Capital Stock of the Borrower, (b) the New Holdings shall expressly
assume all the obligations of the Previous Holdings under this Agreement and the other Credit Documents pursuant to a supplement hereto
or thereto in form and substance reasonably satisfactory to the Administrative Agent, (c) the New Holdings shall have delivered to the
Administrative Agent a certificate of an Authorized Officer stating that such substitution and any supplements to the Credit Documents
preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (d) if reasonably
requested by the Administrative Agent, an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent
shall be delivered by the Borrower to the Administrative Agent to the effect that, without limitation, such substitution does not breach
or result in a default under this Agreement or any other Credit Document, (e) all Capital Stock of the Borrower and substantially all
of the other assets of the Previous Holdings are contributed or otherwise transferred to such New Holdings and pledged to secure the
Obligations and (f) no Event of Default has occurred and is continuing at the time of such substitution and such substitution does not
result in any Event of Default or material Tax liability; provided, further, that if each of the foregoing is satisfied,
the Previous Holdings shall be automatically released from all its obligations under the Credit Documents and any reference to “Holdings”
in the Credit Documents shall be meant to refer to the “New Holdings.”
“Immaterial
Subsidiary” shall mean, at any date of determination, any Restricted Subsidiary of the Borrower (a) whose total assets (when
combined with the assets of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany obligations) at the last
day of the Test Period most recently ended on or prior to such determination date were an amount equal to or less than 5% of the Consolidated
Total Assets of the Borrower and its Restricted Subsidiaries at such date and (b) whose gross revenues (when combined with the revenues
of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany obligations) for such Test Period were an amount equal
to or less than 5% of the consolidated gross revenues of the Borrower and its Restricted Subsidiaries for such Test Period, in each case
determined in accordance with GAAP.
“Immediate
Family Members” shall mean with respect to any individual, such individual’s estate, heirs, legatees, distributees, child,
stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law (including adoptive
relationships), any person sharing an individual’s household (other than an unrelated tenant or employee) and any trust, partnership
or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals 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
Agreement” shall have the meaning provided in Section 2.14(e).
“Incremental
Base Amount” shall mean, as of any date of determination, (a) (x) the greater of $50,000,000 and (y) 100.0% of Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination
(measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date plus (b) the
aggregate principal amount of (i) Term Loans voluntarily prepaid prior to such date pursuant to Section 5.1, (ii) the aggregate amount
of cash consideration paid by any Purchasing Borrower Party to effect any assignment to it of Term Loans pursuant to Section 13.6(g),
but only to the extent that such Term Loans have been cancelled and (iii) all permanent reductions of Revolving Credit Commitments, Extended
Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments pursuant to Section 4.2 effected prior to such date
(for the avoidance of doubt, excluding any such commitment reductions required by the proviso to Section 2.14(b) or in connection with
the Incurrence of any Credit Agreement Refinancing Indebtedness Incurred to Refinance any Revolving Credit Commitments, Additional/Replacement
Revolving Credit Commitments and/or Extended Revolving Credit Commitments), in each case of this clause (b) except to the extent financed
by the Incurrence of long-term Indebtedness (including, for the avoidance of doubt, any such Indebtedness Incurred under a revolving
credit facility, Incurred as Permitted Additional Debt or otherwise Incurred under Section 2.14) by, or the issuance of Capital Stock
by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition
outside the ordinary course of business.
“Incremental
Commitments” shall have the meaning provided in Section 2.14(a).
“Incremental
Facilities” shall have the meaning provided in Section 2.14(a).
“Incremental
Facility Closing Date” shall have the meaning provided in Section 2.14(e).
“Incremental
Limit” shall have the meaning provided in Section 2.14(b).
“Incremental
Ratio Debt Amount” shall have the meaning provided in Section 2.14(b) and Section 10.1(u).
“Incremental
Revolving Credit Commitment Increase” shall have the meaning provided in Section 2.14(a).
“Incremental
Revolving Credit Commitment Increase Lender” shall have the meaning provided in Section 2.14(f)(ii).
“Incremental
Term Loan Commitment” shall mean the Commitment of any Lender to make Incremental Term Loans of a particular Class pursuant
to Section 2.14(a).
“Incremental
Term Loan Facility” shall mean each Class of Incremental Term Loans made pursuant to Section 2.14.
“Incremental
Term Loan Maturity Date” shall mean, with respect to any Class of Incremental Term Loans made pursuant to Section 2.14, the
final maturity date thereof.
“Incremental
Term Loans” shall have the meaning provided in Section 2.14(a).
“Incur”
shall mean create, issue, assume, guarantee, incur or otherwise become directly or indirectly liable for any Indebtedness; provided,
however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such Person at the time it becomes a Restricted Subsidiary.
The term “Incurrence” when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance
with Section 10.1:
(a)
amortization of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security;
(b)
the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly
scheduled dividends on Capital Stock in the form of additional Capital Stock of the same class and with the same terms; and
(c)
the obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of prepayment, redemption,
repurchase, defeasance, acquisition or similar payment or making of a mandatory offer to prepay, redeem, repurchase, defease, acquire
or similarly pay such Indebtedness;
will
not be deemed to be the Incurrence of Indebtedness.
“Indebtedness”
shall mean, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness
or liabilities in accordance with GAAP:
(a)
all indebtedness of such Person for borrowed money and all indebtedness of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;
(b)
the maximum amount (after giving pro forma effect to any prior drawings or reductions which have been reimbursed) of all letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments
issued or created by or for the account of such Person;
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(c)
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net
Hedging Obligations of such Person;
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(d)
all obligations of such Person to pay the deferred purchase price of property or services (other than (i) current trade or other ordinary
course payables or liabilities or accrued expenses (but not any refinancings, extensions, renewals, or replacements thereof) Incurred
in the ordinary course of business and maturing within 365 days after the Incurrence thereof except if such trade or other ordinary course
payables or liabilities or accrued expenses bear interest, (ii) any earn-out or similar obligation, unless such obligation has not been
paid within 30 days after becoming due and payable and becomes a liability on the balance sheet of such Person in accordance with GAAP
and (iii) obligations resulting from take-or-pay contracts entered into in the ordinary course of business);
(e)
indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond
and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
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(f)
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all
Financing Lease Obligations;
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(g)
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all
obligations of such Person in respect of Disqualified Capital Stock; and
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(h)
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all
Guarantee Obligations of such Person in respect of any of the foregoing;
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provided
that Indebtedness shall not include (i) prepaid
or Deferred Revenue arising in the ordinary course of business, (ii) purchase price holdbacks arising in the ordinary course of business
in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such
asset, (iii) amounts owed to dissenting equityholders in connection with, or as a result of, their exercise of appraisal rights
and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto (including any accrued interest),
with respect to the Transactions or any other Acquisition permitted under the Credit Documents, (iv) liabilities associated with customer
prepayments and deposits and other accrued obligations (including transfer pricing), in each case incurred in the ordinary course of
business, (v) Non-Financing Lease Obligations or other obligations under or in respect of straight-line leases, operating leases or Sale
Leasebacks (except resulting in Financing Lease Obligations), (vi) customary obligations under employment agreements and deferred compensation
arrangements, (vii) contingent post-closing purchase price adjustments, non-compete or consulting obligations or earn-outs to which the
seller in an Acquisition or Investment may become entitled and (viii) Indebtedness of any Parent Entity appearing on the balance
sheet of the Borrower or any Restricted Subsidiary solely by reason of “pushdown” accounting under GAAP.
For
all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or Joint Venture (other than
a Joint Venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer,
except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness
would be included in the calculation of Consolidated Total Debt of such Person and (B) in the case of Holdings, the Borrower and their
Subsidiaries, exclude all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of
terms) and made in the ordinary course of business or consistent with past practice. The amount of any net Hedging Obligations on any
date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes
of clause (e) above shall, unless such Indebtedness has been assumed by such Person, be deemed to be equal to the lesser of (i) the aggregate
unpaid amount of such Indebtedness and (ii) the Fair Market Value of the property encumbered thereby as determined by such Person in
good faith.
“Indemnified
Parties” shall have the meaning provided in Section 13.5(a)(iii).
“Independent
Financial Advisor” shall mean an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar
Businesses of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which
it has been engaged.
“Initial
Financial Statement Delivery Date” shall mean the date on which Section 9.1 Financials are delivered to the Administrative
Agent under Section 9.1 for the first full fiscal quarterly or annual period of the Borrower completed after the Closing Date.
“Initial
Revolving Borrowing Amount” shall mean one or more Borrowings of Revolving Credit Loans on the Closing Date in an amount not
to exceed the aggregate amounts specified or referred to in the definition of the term “Permitted Initial Revolving Credit Borrowing
Purposes”; provided that, without limitation, Letters of Credit may be issued on the Closing Date to, among other things,
backstop or replace letters of credit outstanding immediately prior to the Closing Date under the Existing Credit Facility.
“Initial
Term Loan” shall have the meaning provided in Section 2.1(a)mean
(a) prior to the First Incremental Agreement Effective Date, the loans made on the Closing Date pursuant to Section 2.1(a) and (b) from
and after the First Incremental Agreement Effective Date, the Incremental Term Loans made on the First Incremental Agreement Effective
Date pursuant to the First Incremental Agreement.
“Initial
Term Loan Commitment” shall mean (a) in the case of each Lender that is a Lender on the Closing Date, the amount set forth
opposite such Lender’s name on Schedule 1.1(a) as such Lender’s “Initial Term Loan Commitment” and,
(b) in
the case of each Tranche B Term Lender, the amount of such Lender’s Incremental Term Loan Commitment under the First
Incremental Agreement (including, for the avoidance of doubt, the amount allocated to each Rollover Lender (as defined in the First
Incremental Agreement)) and (c) in the
case of any Lender that becomes a Lender after the Closing Date, the or
the First Incremental Agreement Effective Date, as applicable, the amount
specified as such Lender’s “Initial Term Loan Commitment” in the Assignment and Acceptance pursuant to which such
Lender assumed a portion of the Total Initial Term Loan Commitment, in each case as the same may be changed from time to time
pursuant to the terms hereof. The aggregate amount of the Initial Term Loan Commitments as of the Closing Date iswas
$265,000,000,
and the aggregate amount of the Initial Term Loan Commitments as of the First Incremental Agreement Effective Date is
$264,337,500.
“Initial
Term Loan Facility” shall have the meaning provided in the recitals
to thismean
(a) prior to the First Incremental Agreement Effective Date, the Closing Date Term Loan Facility and (b) from and after the First Incremental
Agreement Effective Date, the facility under which the Tranche B Term Loans are made available on the First Incremental Agreement Effective
Date pursuant to the First Incremental Agreement.
“Initial
Term Loan Lender” shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial
Term Loan Maturity Date” shall mean the seventh anniversary of the Closing Date, or if such anniversary of the Closing Date
is not a Business Day, the Business Day immediately following such anniversary.
“Initial
Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b).
“Initial
Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).
“Intellectual
Property” shall have the meaning provided for such term in the Security Agreement.
“Intercompany
Note” shall mean the Intercompany Subordinated Note, dated as of the Closing Date, substantially in the form of Exhibit L hereto,
executed by Holdings, the Borrower and each other Restricted Subsidiary of the Borrower party thereto.
“Interest
Period” shall mean, with respect to any Eurodollar Loan, the interest period applicable thereto, as determined pursuant to
Section 2.9.
“Interpolated
Rate” shall mean, in relation to LIBOR, the rate which results from interpolating on a linear basis between:
(a)
the applicable LIBOR (as used in the definition of the term “Eurodollar Rate”) for the longest period (for which LIBOR is
available) which is less than the Interest Period of that Loan; and
(b)
the applicable LIBOR (as used in the definition of the term “Eurodollar Rate”) for the shortest period (for which LIBOR is
available) which exceeds the Interest Period of that Loan, each as of approximately 11:00 a.m. (London, England time) two Business Days
prior to the commencement of such Interest Period of that Loan.
“Investment”
shall mean, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or
other acquisition of Capital Stock or Indebtedness or other securities of another Person, (b) a loan, advance or capital contribution
to, Guarantee Obligation with respect to any obligation of, or purchase or other acquisition of any other Indebtedness or equity participation
or interest in, another Person, including any partnership or Joint Venture interest in such other Person, excluding, in the case of the
Borrower and its Restricted Subsidiaries, intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive
of any roll-over or extensions of terms) and made in the ordinary course of business or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of the property and assets or business of another Person or assets constituting a business unit,
line of business or division of such Person. The amount, as of any date of determination, of (i) any Investment in the form of a loan
or an advance shall be the principal amount thereof outstanding on such date, minus any payments in cash or Cash Equivalents actually
received by such investor representing interest in respect of such Investment, but without any adjustment for write-downs or write-offs
(including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (ii) any Investment
in the form of a guarantee shall be equal to the stated or determinable amount of the related primary obligation, or portion thereof,
in respect of which such guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect
thereof, as determined in good faith by an Authorized Officer of the Borrower, (iii) any Investment in the form of a transfer of Capital
Stock or other non-cash property or services by the investor to the investee, including any such transfer in the form of a capital contribution,
shall be the Fair Market Value of such Capital Stock or other property or services as of the time of the transfer, minus any payments
actually received by such investor representing a Return in respect of such Investment, but without any other adjustment for increases
or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment,
and (iv) any Investment (other than any Investment referred to in clause (i), (ii) or (iii) above) by the specified Person in the form
of a purchase or other acquisition for value of any Capital Stock, evidences of Indebtedness or other securities of any other Person
shall be the original cost of such Investment, except that the amount of any Investment in the form of an Acquisition shall be the Acquisition
Consideration, minus (i) the amount of any portion of such Investment that has been repaid to the investor as a Return in respect of
such Investment (without duplication of amounts increasing the Available Amount or the Available Equity Amount), but without any other
adjustment for increases or decreases in value of, or write- ups, write-downs or write-offs with respect to, such Investment after the
date of such Investment. For purposes of Section 10.5, if an Investment involves the acquisition of more than one Person, the amount
of such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided that pending the final determination
of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably determined by an Authorized Officer
of the Borrower. For the avoidance of doubt, if the Borrower or any Restricted Subsidiary issues, sells or otherwise Disposes of any
Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted
Subsidiary, any Investment by the Borrower or any Restricted Subsidiary in such Person remaining after giving effect thereto shall not
be deemed to be a new Investment at such time.
“Investment
Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent)
by S&P or an equivalent rating by any other Rating Agency.
“Investment
Grade Securities” shall mean, (a) securities issued or directly and fully guaranteed or insured by the U.S. government or any
agency or instrumentality thereof (other than Cash Equivalents), (b) securities or debt instruments with an Investment Grade Rating,
but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries, (c) investments
in any fund that invests at least a 95% of its assets in investments of the type described in clauses (a) and (b) above, which fund may
also hold immaterial amounts of cash pending investment or distribution and (d) corresponding instruments in countries other than the
United States customarily utilized for high-quality investments.
“Investors”
shall mean, collectively, the Sponsor, the Rollover Investors and the other Employee Investors.
“ISP”
shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer
Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement
and instrument entered into by a Letter of Credit Issuer and the Borrower (or any Restricted Subsidiary) or in favor of the Letter of
Credit Issuer and relating to such Letter of Credit.
“Joint
Bookrunners” shall mean UBS Securities LLC and SunTrust Robinson Humphrey, Inc., each in its capacity as joint bookrunner.
“Joint
Venture” shall mean a joint venture, partnership or similar arrangement, whether in corporate, partnership or other legal form.
“Junior
Debt” shall mean any Subordinated Indebtedness of any Credit Party.
“Junior
Priority Intercreditor Agreement” shall mean the Junior Priority Intercreditor Agreement substantially in the form of Exhibit
G-2, among (x) the Collateral Agent and (y) one or more representatives of the holders of Permitted Additional Debt and/or Permitted
Junior Priority Refinancing Debt, with any immaterial changes and material changes thereto in light of the prevailing market conditions,
which material changes shall be posted to the Lenders not less than five Business Days before execution thereof and, if the Required
Lenders shall not have objected to such changes within five Business Days after posting, then the Required Lenders shall be deemed to
have agreed that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement (with such
changes) is reasonable and to have consented to such intercreditor agreement (with such changes) and to the Administrative Agent’s
and/or Collateral Agent’s execution thereof.
“Latest
Maturity Date” shall mean, with respect to the Incurrence of any Indebtedness or the issuance of any Capital Stock, the latest
Maturity Date applicable to any Credit Facility that is outstanding hereunder as determined on the date such Indebtedness is Incurred
or such Capital Stock is issued.
“LCA
Election” shall have the meaning provided in Section 1.11.
“LCA
Test Date” shall have the meaning provided in Section 1.11.
“Lead
Arrangers” shall mean UBS Securities LLC and SunTrust Robinson Humphrey, Inc., each in its capacity as lead arranger.
“Lender” shall mean (a) the Persons listed on Schedule 1.1(a), (b) any other Person that shall become a party hereto as a
“lender” pursuant to Section 13.6 and (c) each Person that becomes a party hereto as a “lender” pursuant to the
terms of Section 2.14 (including, for the avoidance of doubt, the Tranche B Term Lenders under the First Incremental Agreement), in each
case other than a Person who ceases to hold any outstanding Loans, Letter of Credit Exposure, Swingline Exposure or any Commitment.
“Lender
Default” shall mean (a) the refusal (in writing) or failure of any Revolving Credit Lender (which term, for purposes of this
definition, shall also include any Lender under an Additional/Replacement Revolving Credit Facility) to make available its portion of
any Incurrence of Revolving Credit Loans or participations in Letters of Credit or Swingline Loans, which refusal or failure is not cured
within one Business Day after the date of such refusal or failure, (b) the failure of any Revolving Credit Lender to pay over to the
Administrative Agent, any Letter of Credit Issuer, any Swingline Lender or any other Lender any other amount required to be paid by it
hereunder within one Business Day of the date when due, (c) the notification by a Revolving Credit Lender to the Borrower, the Collateral
Agent or the Administrative Agent that it does not intend or expect to comply with any of its funding obligations or has made a public
statement to that effect with respect to its funding obligations under this Agreement, (d) the failure by a Revolving Credit Lender to
confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its obligations under this Agreement,
(e) the admission of a Distressed Person in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related
Distress Event or (f) any Lender has become the subject of a Bail-In Action.
“Lender-Related
Distress Event” shall mean, with respect to any Revolving Credit Lender (which term, for purposes of this definition, shall
also include any Lender under an Additional/Replacement Revolving Credit Facility), that such Revolving Credit Lender or any person that
directly or indirectly controls such Revolving Credit Lender (each, a “Distressed Person”), as the case may be, is
or becomes subject to a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian,
conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s
assets, or such Distressed Person or any person that directly or indirectly controls such Distressed Person is subject to a forced liquidation
or winding up, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined
by any governmental authority having regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt or no
longer viable, or if any governmental authority having regulatory authority over such Distressed Person has taken control of such Distressed
Person or has taken steps to do so; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely
by virtue of the ownership or acquisition of any equity interests in any Revolving Credit Lender or any person that directly or indirectly
controls such Revolving Credit Lender by a governmental authority or an instrumentality thereof; provided, further, that
such ownership interest does not result in or provide such person with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such person (or such governmental authority or instrumentality)
to reject, repudiate, disavow or disaffirm any contract or agreements made by such person or its parent entity.
“Letter
of Credit” shall have the meaning provided in Section 3.1(a).
“Letter
of Credit Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit that has not been
reimbursed on the date when made or refinanced as a Borrowing.
“Letter
of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the amount of any Unpaid Drawings in
respect of which such Lender has made (or is required to have made) Revolving Credit Loans pursuant to Section 3.4 at such time and (b)
such Lender’s Revolving Credit Commitment Percentage of the Letter of Credit Obligations at such time (excluding the portion thereof
consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) Revolving Credit Loans pursuant
to Section 3.4).
“Letter
of Credit Fee” shall have the meaning provided in Section 4.1(c).
“Letter
of Credit Issuer” shall mean (a) UBS AG, Stamford Branch, (b) SunTrust Bank and (c) any one or more Persons who shall become
a Letter of Credit Issuer pursuant to Section 3.6. Any Letter of Credit Issuer may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of Credit Issuer”
shall include any such Affiliate with respect to Letters of
Credit
issued by such Affiliate. In the event that there is more than one Letter of Credit Issuer at any time,
references
herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect
of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.
“Letter
of Credit Maturity Date” shall mean the date that is three Business Days prior to the Revolving Credit Maturity Date.
“Letter
of Credit Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding
Letters of Credit plus
the aggregate of all Unpaid Drawings, including all Letter
of Credit Borrowings. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms,
but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed
to be “outstanding” in the amount so remaining available to be drawn.
“Letter
of Credit Participant” shall have the meaning provided in Section 3.3(a).
“Letter
of Credit Participation” shall have the meaning provided in Section 3.3(a).
“Letter
of Credit Request” shall mean an application and agreement for the issuance or amendment of a Letter of Credit in the form
from time to time in use by a Letter of Credit Issuer.
“Letter
of Credit Sub-Commitment” shall mean $15,000,000, as the same may be reduced from time to time pursuant to Section 4.2(b).
“Letter
of Credit Sub-Commitment Obligation” shall mean, in the case of each Letter of Credit Issuer that is a Letter of Credit Issuer
on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(a) as such Letter of Credit Issuer’s
“Letter of Credit Sub-Commitment Obligation”.
“Lien”
shall mean any mortgage, pledge, deed of trust, security interest, hypothecation, lien (statutory or other) or similar encumbrance and
any easement, right-of-way, restriction (including zoning restrictions), defect, exception or irregularity in title or similar charge
or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof); provided
that in no event shall a Non-Financing Lease
Obligation be deemed to be a Lien.
“Limited
Condition Acquisition” shall mean any Acquisition by the Borrower and/or one or more of its Restricted Subsidiaries permitted
by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan”
shall mean any Revolving Credit Loan, Additional/Replacement Revolving Credit Loan, Extended Revolving Credit Loan, Swingline Loan (including
any swingline loan pursuant to any Extended Revolving Credit Commitments or any Additional/Replacement Revolving Credit Commitments)
or Term Loan made by any Lender hereunder.
“Losses”
shall have the meaning provided in Section 13.5(a)(iii).
“Mandatory
Borrowing” shall have the meaning provided in Section 2.1(d)(ii).
“Market
Capitalization” shall mean an amount equal to (a) the total number of issued and outstanding shares of common Capital Stock
of the Borrower, Holdings or any Parent Entity on the date of the declaration of a Restricted Payment permitted pursuant to Section 10.6(m)
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 the date of declaration of such
Restricted Payment.
“Market
Convention Rate”shall have
the meaning provided in Section 2.10(d).
“Master
Agreement” shall have the meaning provided in the definition of the term “Hedging Agreement.”
“Material
Adverse Effect” shall mean, except as provided in the proviso to Section 6.12, a circumstance or condition that would, individually
or in the aggregate, materially and adversely affect (a) the business, financial condition or results of operations of the Borrower and
its Restricted Subsidiaries, taken as a whole, (b) the ability of the Credit Parties (taken as a whole) to perform their payment obligations
under the Credit Documents or (c) the rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders under the
Credit Documents.
“Material
Real Property” shall mean any parcel or parcels of Real Property owned in fee by any Credit Party, now or hereafter, having
a Fair Market Value (on a per property basis) of at least $5,000,000. For the purpose of determining the relevant value under this Agreement
with respect to the preceding clause, such value shall be determined as of (x) the Closing Date for Real Property now owned, (y) the
date of acquisition for Real Property acquired after the Closing Date or (z) the date on which the entity owning such Real Property becomes
a Credit Party after the Closing Date, in each case as determined in good faith by the Borrower.
“Maturity
Date” shall mean, as to the applicable Loan or Commitment, the Initial Term Loan Maturity Date, any Incremental Term Loan Maturity
Date, the Revolving Credit Maturity Date, any maturity date related to any Class of Additional/Replacement Revolving Credit Commitments
or any maturity date related to any Class of Extended Term Loans or any Class of Extended Revolving Credit Commitments, as applicable.
“Maximum Tender Condition” shall have
the meaning provided in Section 2.17(d).
“Merger Consideration” shall have the meaning
provided in the recitals to this Agreement.
“Merger Sub” shall have the meaning provided
in the recitals to this Agreement.
“Merger Sub II” shall have the meaning
provided in the recitals to this Agreement.
“Mergers” shall have the meaning provided
in the recitals to this Agreement.
“MFN Exceptions” shall have the meaning
provided in Section 2.14(c).
“MFN Protection” shall have the meaning
provided in Section 2.14(c).
“Minimum
Borrowing Amount” shall mean (a) with respect to a Borrowing of Term Loans, $5,000,000 (or such lesser amount as may be agreed
by the Administrative Agent or as may be required in order to accommodate Borrowings described under Section 2.14(b)) and (b) with respect
to a Borrowing of Revolving Credit Loans, $1,000,000 and (c) with respect to a Borrowing of Swingline Loans, $100,000.
“Minimum Tender Condition” shall have
the meaning provided in Section 2.17(d).
“Minority
Investment” shall mean any Person (other than a Subsidiary) in which the Borrower or any Restricted Subsidiary owns Capital
Stock.
“Moody’s”
shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage”
shall mean a mortgage or a deed of trust, deed to secure debt, trust deed or other security document entered into by the owner of a Mortgaged
Property in favor of the Collateral Agent for the benefit of the Secured Parties creating a Lien on such Mortgaged Property, substantially
in such form as may be reasonably agreed between the Borrower and the Collateral Agent.
“Mortgaged
Property” shall mean (a) the Real Property identified on Schedule 1.1(c) and (b) all Real Property owned in fee with respect
to which a Mortgage is required to be granted pursuant to Section 9.14(b).
“Multiemployer
Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which Holdings, the Borrower, a Restricted
Subsidiary or an ERISA Affiliate contributes, has an obligation to contribute or had an obligation to contribute over the five preceding
calendar years.
“Necessary Cure Amount” shall have the
meaning provided in Section 11.11(b).
“Net
Cash Proceeds” shall mean, with respect to any Prepayment Event, Incurrence of Indebtedness, any issuance of Capital Stock or
any capital contribution or any Disposition of any Investment (including any Designated Non-Cash Consideration), (a) the gross cash proceeds
(including payments from time to time in respect of installment or earn-out obligations, if applicable, but only as and when received
and, with respect to any Recovery Event, any insurance proceeds, eminent domain awards or condemnation awards in respect of such Recovery
Event) received by or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment Event, Incurrence
of Indebtedness, issuance of Capital Stock, receipt of a capital contribution or Disposition of any Investment, less (b) the sum of:
(i) in the case of any Prepayment Event or such Disposition, the amount, if any, of all Taxes paid or estimated to be payable by any
Parent Entity, the Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event or such Disposition (including
withholding taxes imposed on the repatriation or expatriation of any such Net Cash Proceeds),
(ii) in
the case of any Prepayment Event or such Disposition, the amount of any reasonable reserve established in accordance with GAAP against
any liabilities (other than any amounts deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of
such Prepayment Event or such Disposition and (y) retained by the Borrower or any of the Restricted Subsidiaries, including any pension
and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations
associated with such transaction; provided that the amount of any subsequent reduction of such reserve (other than in connection with
a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such Prepayment Event or such Disposition occurring
on the date of such reduction,
(iii) in
the case of any Prepayment Event or such Disposition, the amount of any principal amount, premium or penalty, if any, interest or other
amounts on any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event or such Disposition to the
extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such
Prepayment Event or such Disposition and such Indebtedness is actually so repaid (other than Indebtedness outstanding under the Credit
Documents or otherwise subject to a Customary Intercreditor Agreement and any costs associated with the unwinding of any Hedging Obligations
in connection with such transaction),
(iv) in
the case of any Asset Sale Prepayment Event, the amount of any proceeds of such Asset Sale Prepayment Event that the Borrower or the
applicable Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment to
reinvest, within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to
Section 9.13); provided that:
(A) the
Borrower or the applicable Restricted Subsidiary shall comply with Sections 9.10, 9.11 and 9.14(b) with respect to such reinvestment
if applicable;
(B) any
portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment within the Reinvestment
Period shall (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event occurring on the later of (1) the last day of the
Reinvestment Period and (2) 180 days after the date that the Borrower or such Restricted Subsidiary shall have entered into an Acceptable
Reinvestment Commitment and (y) be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment,
repurchase, defeasance, acquisition, redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement
Refinancing Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in any such case to the extent
permitted under Section 5.2(a)(i);
and
(C) any
proceeds subject to an Acceptable Reinvestment Commitment that is (I) later canceled or terminated for any reason before such proceeds
are applied in accordance therewith or (II) not consummated (i.e., the reinvestment contemplated by such Acceptable Reinvestment Commitment
is not made) shall be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase,
defeasance, acquisition, redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement Refinancing
Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in any such case to the extent permitted
under Section 5.2(a)(i), unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment
with respect to such proceeds prior to the end of the Reinvestment Period,
(v) in
the case of any Recovery Prepayment Event, the amount of any proceeds of such Recovery Prepayment Event (x) that the Borrower or the
applicable Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment
to reinvest, within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to
Section 9.13), including for the repair, restoration or replacement of the asset or assets subject to such Recovery Prepayment
Event, or (y) for which the Borrower or the applicable Restricted Subsidiary has provided a Restoration Certification prior to the
end of the Reinvestment Period; provided that:
(A) the
Borrower or the applicable Restricted Subsidiary shall comply with Sections 9.10, 9.11 and 9.14(b) with respect to such reinvestment
if applicable;
(B) any
portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment or Restoration Certification
within the Reinvestment Period shall (x) be deemed to be Net Cash Proceeds of a Recovery Prepayment Event occurring on the later of (1)
the last day of the Reinvestment Period and (2) 180 days after the date that the Borrower or such Restricted Subsidiary shall have entered
into an Acceptable Reinvestment Commitment or shall have provided a Restoration Certification and (y) be applied to the prepayment of
Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase, defeasance, acquisition, redemption or similar payment
of any secured Permitted Additional Debt or secured Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions
of the governing documentation thereof, in any such case to the extent permitted under Section 5.2(a)(i); and
(C) any
proceeds subject to an Acceptable Reinvestment Commitment or a Restoration Certification that is (I) later canceled or terminated for
any reason before such proceeds are applied in accordance therewith or (II) not consummated (i.e., the reinvestment, repair, restoration
or replacement contemplated by such Acceptable Reinvestment Commitment or Restoration Certification, as the case may be, is not made)
shall be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase, defeasance, acquisition,
redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement Refinancing Indebtedness pursuant
to the corresponding provisions of the governing documentation thereof, in each case to the extent permitted under Section 5.2(a)(i),
unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment or provides another
Restoration Certification with respect to such proceeds prior to the end of the Reinvestment Period,
(vi) in
the case of any Asset Sale Prepayment Event or Recovery Prepayment Event by any non-wholly owned Restricted Subsidiary, the pro rata
portion of the net cash proceeds thereof (calculated without regard to this clause (vi)) attributable to minority interests and not
available for distribution to or for the account of the Borrower or a wholly owned Restricted Subsidiary as a result thereof,
(vii) in
the case of any Prepayment Event, Incurrence of Indebtedness, Disposition, issuance of Capital Stock or receipt of a capital contribution,
the reasonable and customary fees, commissions, expenses (including attorney’s fees, investment banking fees, survey costs, title
insurance premiums and search and recording charges, transfer taxes, deed or mortgage recording taxes and other customary expenses and
brokerage, consultant and other customary fees or commissions), issuance costs, discounts and other costs and expenses (and, in the case
of the Incurrence of any Indebtedness the proceeds of which are required to be used to prepay any Class of Loans and/or reduce any Class
of Commitments under this Agreement, accrued interest and premium, if any, on such Loans and any other amounts (other than principal)
required to be paid in respect of such Loans and/or Commitments in connection with any such prepayment and/or reduction), and payments
made in order to obtain a necessary consent required by Applicable Law, in each case only to the extent not already deducted in arriving
at the amount referred to in clause (a) above, and
(viii) in
the case of any Asset Sale Prepayment Event or Disposition, any amounts funded into escrow established pursuant to the documents evidencing
any such Asset Sale Prepayment Event or Disposition to secure any indemnification obligations or adjustments to the purchase price associated
with any such Asset Sale Prepayment Event or Disposition until such amounts are released to the Borrower or a Restricted Subsidiary.
“Net
Income” shall mean, with respect to any Person, the net income (loss) attributable to such Person, determined on a consolidated
basis in accordance with GAAP and before any reduction in respect of dividends on preferred Capital Stock (other than dividends on Disqualified
Capital Stock).
“New Holdings” shall have the meaning
provided in the definition of the term “Holdings”.
“Non-Consenting Lender” shall have the
meaning provided in Section 13.7(b).
“Non-Credit Party” shall mean any Person
that is not a Credit Party.
“Non-Credit Party Asset Sale” shall have
the meaning provided in Section 5.2(h).
“Non-Credit Party Recovery Event” shall
have the meaning provided in Section 5.2(h).
“Non-Debt Fund Affiliate”
shall mean any Affiliate of the Borrower (other than Holdings, the Borrower or any Restricted Subsidiary of the Borrower) that is not
a Debt Fund Affiliate.
“Non-Defaulting Lender” shall mean and
include each Lender other than a Defaulting Lender.
“Non-Excluded Taxes” shall have the meaning
provided in Section 5.4(a).
“Non-Extension Notice Date” shall have
the meaning provided in Section 3.2(e).
“Non-Financing
Lease Obligations” shall mean a lease obligation that is not required to be accounted for as a financing or capital lease on
both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For avoidance of doubt, a straight-line
or operating lease shall be considered a Non- Financing Lease Obligation.
“Non-U.S. Lender” shall have the meaning
provided in Section 5.4(d).
“Note”
shall mean a Term Note or a Revolving Credit Note, in each case of the Borrower payable to any Lender or its registered assigns, evidencing
the aggregate amount of Indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender.
“Notice
of Borrowing” shall mean a request of the Borrower in accordance with the terms of Section 2.3 and substantially in the form
of Exhibit D or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic
transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by an Authorized Officer of
the Borrower.
“Notice of Conversion or Continuation”
shall have the meaning provided in Section 2.6(a).
“Notice
Period” shall have the meaning provided in Section 2.10(d).
“Obligations” shall mean the collective
reference to:
(a) the
due and punctual payment of (i) the principal of and premium, if any, and interest at the applicable rate provided in this Agreement
(including interest accruing during the pendency of any proceeding under any applicable Debtor Relief Laws (or that would accrue but
for the operation of applicable Debtor Relief Laws), regardless of whether allowed or allowable in such proceeding) on the Loans, when
and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required
to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon (including interest accruing during the pendency of any proceeding under any applicable
Debtor Relief Laws (or that would accrue but for the operation of applicable Debtor Relief Laws), regardless of whether allowed or allowable
in such proceeding) and obligations to provide Cash Collateral, and (iii) all other monetary obligations, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the
pendency of any applicable proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding), of
the Borrower or any other Credit Party to any of the Secured Parties under this Agreement and the other Credit Documents,
(b) the
due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower under or pursuant to this Agreement
and the other Credit Documents,
(c) the
due and punctual payment and performance of all the covenants, agreements, obligations, and liabilities of each other Credit Party under
or pursuant to this Agreement or the other Credit Documents,
(d) the
due and punctual payment and performance of all Cash Management Obligations under each Secured Cash Management Agreement of a Credit
Party or any Restricted Subsidiary thereof, and
(e) the
due and punctual payment and performance of all Hedging Obligations under each Secured Hedging Agreement of a Credit Party or any Restricted
Subsidiary thereof (other than with respect to any such Credit Party’s Hedging Obligations that constitute Excluded Swap Obligations
with respect to such Credit Party).
Notwithstanding
the foregoing, (i) unless otherwise agreed to by the Borrower, the obligations of a Credit Party or any Restricted Subsidiary thereof
under any Secured Cash Management Agreement and Secured Hedging Agreement shall be secured and guaranteed pursuant to the Security Documents
and only to the extent that, and for so long as, the other Obligations are so secured and guaranteed, (ii) any release of Collateral or
Guarantors effected in the manner permitted by this Agreement and the other Credit Documents shall not require the consent of the holders
of the Cash Management Obligations under Secured Cash Management Agreements or the consent of the holders of the Hedging Obligations under
Secured Hedging Agreements and (iii) Obligations shall in no event include any Excluded Swap Obligations.
“OFAC” shall have
the meaning provided in Section 8.20(a).
“OID” shall mean original issue discount.
“Organizational
Documents” shall mean (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent
or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement and (c) with respect to any partnership, Joint Venture, trust
or other form of business entity, the partnership, Joint Venture or other applicable agreement of formation or organization and, if applicable,
any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation
or organization of such entity.
“Other Taxes” shall have the meaning
provided in Section 5.4(b).
“Overnight
Rate” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate determined by the
Administrative Agent, the applicable Letter of Credit Issuer or the Swingline Lender, as the case may be, in accordance with banking industry
rules on interbank compensation.
“Parent
Entity” shall mean any Person that is a direct or indirect parent company (which may be organized as, among other things, a
partnership) of Holdings and/or the Borrower, as applicable. For the avoidance of doubt, any Person that is formed to effect a public
offering of common Capital Stock that directly or indirectly owns a majority of the Voting Stock of Holdings will be deemed a Parent Entity
of Holdings.
“Participant” shall have the meaning
provided in Section 13.6(d)(i).
“Participant Register” shall have the meaning
provided in Section 13.6(d)(ii).
“PATRIOT ACT” shall have the meaning provided
in Section 8.20(a)8.21.
“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Pension
Plan” shall mean any “employee pension benefit plan” (as defined in Section 3(2) of ERISA, other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA that is sponsored, maintained
or contributed to by Holdings, the Borrower, a Restricted Subsidiary or an ERISA Affiliate or, solely with respect to representations
and covenants that relate to liability under Section 4069 of ERISA, that was so maintained and in respect of which the Borrower, any Restricted
Subsidiary or ERISA Affiliate would have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
“Perfection
Certificate” shall mean a certificate in the form of Exhibit M or any other form approved by the Collateral Agent in its reasonable
discretion.
“Permitted
Acquisition” shall mean any Acquisition by the Borrower or any of the Restricted Subsidiaries, so long as (a) such
Acquisition and all transactions related thereto shall be consummated in all material respects in accordance with all Applicable
Laws, (b) if such Acquisition involves the acquisition of Capital Stock of a Person that upon such Acquisition would become a
Subsidiary, such Acquisition shall result in the issuer of such Capital Stock becoming a Restricted Subsidiary and, to the extent
required by Section 9.10, a Guarantor, (c) to the extent required by Sections 9.10, 9.11 and/or 9.14(b), such Acquisition shall
result in the Collateral Agent, for the benefit of the Secured Parties, being granted a security interest in any Capital Stock or
any assets so acquired, (d) subject to Section 1.11, both immediately prior to and after giving pro forma effect to such
Acquisition, no Event of Default under either Section 11.1 or Section 11.5 shall have occurred and be continuing and (e) immediately
after giving pro forma effect to such Acquisition, the Borrower and its Restricted Subsidiaries shall be in compliance with Section
9.13.
“Permitted
Additional Debt” shall mean (a) secured or unsecured bonds, notes or debentures (which bonds, notes or debentures, if
secured, may only be secured by Liens on the Collateral having a priority ranking equal to the priority of the Liens on the
Collateral securing the Obligations (but without regard to control of remedies) or by Liens on the Collateral having a priority
ranking junior to the Liens on the Collateral securing the Obligations) or (b) secured or unsecured loans (or commitments to provide
loans or other extensions of credit) (which loans or commitments, if secured, may only be secured by Liens on the Collateral having
a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but without regard to control of
remedies) or by Liens on the Collateral having a priority ranking junior to the Liens on the Collateral securing the Obligations),
in each case Incurred by or provided to the Borrower or another Guarantor; provided that (a) the terms of such Indebtedness
or commitments do not provide for maturity or any scheduled amortization or mandatory repayment, mandatory redemption, mandatory
commitment reduction, mandatory offer to purchase or sinking fund obligation prior to the Latest Maturity Date, other than, subject
(except, in the case of any such Indebtedness or commitments that constitute, or are intended to constitute, other First Lien
Obligations) to the prior repayment or prepayment of, or the prior offer to repay or prepay (and to the extent such offer is
accepted, the prior repayment or prepayment of) the Obligations hereunder (other than Hedging Obligations under any Secured Hedging
Agreement, Cash Management Obligations under Secured Cash Management Agreements or contingent indemnification obligations and other
contingent obligations not then due and payable), customary prepayments, commitment reductions, repurchases, redemptions,
defeasances, acquisitions or satisfactions and discharges, or offers to prepay, reduce, redeem, repurchase, defease, acquire or
satisfy and discharge, in each case upon, a change of control, asset sale event or casualty, eminent domain or condemnation event,
or on account of the accumulation of excess cash flow (in the case of loans or commitments), AHYDO Catch-Up Payments and customary
acceleration rights upon an event of default; provided that the foregoing requirements of this clause (a) shall not apply to
the extent such Indebtedness or commitments constitute a customary bridge facility, so long as the long-term Indebtedness into which
any such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (a) and such conversion
or exchange is subject only to conditions customary for similar conversions or exchanges, (b) except for any of the following that
are applicable only to periods following the Latest Maturity Date, the covenants, events of default, Subsidiary guarantees and other
terms for such Indebtedness or commitments (excluding, for the avoidance of doubt, interest rates (including through fixed interest
rates), interest rate margins, rate floors, fees, maturity, funding discounts, original issue discounts, currency denomination and
redemption or prepayment terms and premiums), when taken as a whole, are determined by the Borrower to either (A) be consistent with
market terms and conditions and conditions at the time of Incurrence or effectiveness or (B) not be materially more restrictive on
the Borrower and its Restricted Subsidiaries than the terms of this Agreement, when taken as a whole (provided that, if the
documentation governing such Indebtedness or commitments contains any Previously Absent Financial Maintenance Covenant, the
Administrative Agent shall have been given prompt written notice thereof and this Agreement shall have been amended to include such
Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility (provided, however, that, if
(x) the documentation governing the Permitted Additional Debt that includes a Previously Absent Financial Maintenance Covenant
consists of a revolving credit facility (whether or not the documentation therefor includes any other facilities) and (y) such
Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such
revolving credit facility or a covenant only applicable to, or for the benefit of, a revolving credit facility, then this Agreement
shall be amended to include such Previously Absent Financial Maintenance Covenant only for the benefit of each revolving credit
facility hereunder (and not for the benefit of any term loan facility hereunder) and such Indebtedness or commitments shall not be
deemed “more restrictive” solely as a result of such Previously Absent Financial Maintenance Covenant benefiting only
such revolving credit facilities); provided that a certificate of an Authorized Officer of the Borrower delivered to the
Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness or the providing of such commitments,
together with a reasonably detailed description of the material terms and conditions of such Indebtedness or commitments or drafts
of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy
the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the
Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including
a reasonable description of the basis upon which it disagrees), (c) if such Indebtedness is senior subordinated or subordinated
Indebtedness, the terms of such Indebtedness provide for customary “high yield” subordination of such Indebtedness to
the Obligations, (d) any Permitted Additional Debt may not be guaranteed by any subsidiaries of the Borrower that do not guarantee
the Obligations, (e) any secured Permitted Additional Debt Incurred may not be secured by any assets that do not secure the
Obligations and shall be subject to an applicable Customary Intercreditor Agreement and (f) any Permitted Additional Debt in the
form of loans secured by Liens on the Collateral having a priority ranking equal to the priority of the Liens on the Collateral
securing the Obligations (but without regard to control of remedies) shall be subject to the MFN Protection set forth in Section
2.14(c) (but subject to the MFN Exceptions to such MFN Protection) as if such Permitted Additional Debt were an Incremental Term
Loan.
“Permitted
Additional Debt Documents” shall mean any document or instrument (including any guarantee, security or collateral agreement
or mortgage and which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Additional
Debt by any Credit Party.
“Permitted
Additional Debt Obligations” shall mean, if any secured Permitted Additional Debt has been Incurred by or provided to a
Credit Party and is outstanding, the collective reference to (a) the due and punctual payment of (i) the principal of and premium,
if any, and interest at the applicable rate provided in the applicable Permitted Additional Debt Documents (including interest
accruing during the pendency of any proceeding under any applicable Debtor Relief Laws (or would accrue but for the operation of
applicable Debtor Relief Laws), regardless of whether allowed or allowable in such proceeding) on any such Permitted Additional
Debt, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment, repurchase, redemption,
defeasance, acquisition or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of
any proceeding under any applicable Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding), of the
Borrower or any other Credit Party to any of the Permitted Additional Debt Secured Parties under the applicable Permitted Additional
Debt Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower or
any Credit Party under or pursuant to applicable Permitted Additional Debt Documents.
“Permitted Additional Debt
Secured Parties” shall mean the holders from time to time of the secured Permitted Additional Debt Obligations (and any representative
on their behalf).
“Permitted Debt Exchange” shall have the
meaning provided in Section 2.17(a).
“Permitted Debt Exchange Offer” shall have
the meaning provided in Section 2.17(a).
“Permitted Encumbrances” shall mean:
(a) Liens
for Taxes, assessments or other governmental charges or claims that are not yet overdue by more than sixty days or more, or if more than
sixty days overdue either (i) that are being diligently contested in good faith and by appropriate proceedings for which appropriate
reserves have been established in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction or
(ii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(b) Liens
in respect of property or assets of the Borrower or any of its Restricted Subsidiaries imposed by Applicable Law, such as landlord’s,
carriers’, warehousemen’s, repairmen’s, construction contractors’ and mechanics’ Liens, supplier of materials,
architects’ and other similar Liens, in each case so long as such Liens arise in the ordinary course of business or consistent
with past practice and secure amounts not overdue for a period of more than sixty days or, if more than sixty days overdue either (i)
no action has been taken to enforce such Lien, (ii) such amount is being diligently contested in good faith by appropriate proceedings
for which appropriate reserves have been established in accordance with GAAP or the equivalent accounting principles in the relevant
local jurisdiction or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse
Effect;
(c) Liens
arising from judgments, awards, attachments or decrees for the payment of money in circumstances not constituting an Event of Default
under Section 11.9;
(d) Liens
incurred or pledges or deposits (i) made in connection with the Federal Employers Liability Act or any other workers’ compensation,
unemployment insurance, employers’ health tax and other types of social security or similar legislation, (ii) securing insurance
premiums, other liabilities (including in respect of reimbursement and indemnified obligations) to insurance carriers under insurance
or self-insurance arrangements (including in respect of deductibles, co-payment, co-insurance, self- insurance retention amounts and
premiums and adjustments thereof), (iii) securing the performance of tenders, public or statutory obligations, surety, stay, indemnity,
warranty release, customs and appeal bonds, bids, licenses, leases (other than Financing Lease Obligations), contracts (including government
contracts and trade contracts (other than for Indebtedness)), performance, performance and completion, completion and return-of-money
bonds or guarantees, government contracts, financial assurances and completion obligations and other similar obligations, (iv) securing
contested Taxes or import duties or the payment of rent, (v) securing letters of credit, bank guarantees or similar items issued or posted
to support the payment of or for the benefit of items in the foregoing clauses (i), (ii), (iii) and (iv) above, in each case incurred
in the ordinary course of business or consistent with past practice;
(e) ground
leases or subleases, licenses or sublicenses in respect of Real Property on which locations and/or facilities owned or leased by the
Borrower or any of its Restricted Subsidiaries are located;
(f) (i)
easements or reservations of, or rights of others for, rights-of-way, licenses, special assessments, survey exceptions, restrictions
(including zoning restrictions), minor title defects, servitudes, drains, sewers, exceptions or irregularities in title, encroachments,
protrusions and other similar charges, electric lines, telegraph and telephone lines and other similar purposes, or encumbrances or restrictions
on the use of Real Property, which in each case do not and could not reasonably be expected to have a Material Adverse Effect, and that
were not incurred in connection with and do not secure any Indebtedness, and (ii) to the extent reasonably agreed by the Collateral Agent,
any exception on the title policies issued in connection with any Mortgaged Property;
(g) any
(i) Lien or interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s, licensor’s
or sublicensor’s interest under any lease, sublease, license or sublicense permitted by this Agreement (other than in respect of
a Financing Lease Obligation), (ii) landlord Liens permitted by the terms of any lease, (iii) restriction or encumbrance that the interest
or title of any such lessor, sublessor, licensor or a sublicensor may be subject (including ground lease) or (iv) subordination of the
interest of the lessee, sublessee, licensee or sublicensee under such lease or license to any restriction or encumbrance referred to
in the preceding clause (iii);
(h) Liens
in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with
the importation of goods or to secure the performance of leases of Real Property;
(i) Liens
on goods or inventory or proceeds thereof the purchase, shipment or storage price of which is financed by a documentary letter of credit
or bankers’ acceptance issued or created for the account of the Borrower or any of its Restricted Subsidiaries; provided
that such Lien secures only the obligations of the Borrower or such Restricted Subsidiaries in respect of such letter of credit or bankers’
acceptance to the extent permitted under
Section 10.1;
(j) licenses,
sublicenses and cross-licenses of Intellectual Property granted in the ordinary course of business;
(k) Liens
arising from precautionary UCC (or equivalent statute) financing statement, other applicable personal property or movable property security
registry financing statements or similar filings made in respect of Non-Financing Lease Obligations, consignment arrangements or bailee
arrangements entered into by the Borrower or any of its Restricted Subsidiaries;
(l) any
zoning, building or similar law or right reserved to, or vested in, any Governmental Authority to control or regulate the use of any
Real Property or any structure thereon that does not and could not reasonably be expected to have a Material Adverse Effect;
(m) (i)
leases, licenses, subleases or sublicenses (including of Intellectual Property) granted to others in the ordinary course of business
that do not and could not reasonably be expected to have a Material Adverse Effect or (ii) 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 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;
(n) Liens
given to a public utility or any municipality or Governmental Authority when required by such utility or other authority in connection
with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary; provided that such Liens do not and could
not reasonably be expected to have a Material Adverse Effect;
(o) servicing
agreements, development agreements, site plan agreements, subdivision agreements and other agreements with Governmental Authorities pertaining
to the use or development of any of the Real Property of the Borrower or any Restricted Subsidiary, including, without limitation, any
obligations to deliver letters of credit and other security as required, so long as the same do not and could not reasonably be expected
to have a Material Adverse Effect;
(p) 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;
(q) reservations,
limitations, provisos and conditions expressed in any original grant from any Governmental Authority or other grant of real or immovable
property or interests therein;
(r) Liens
consisting of royalties payable with respect to any asset, right or property of the Borrower or its Subsidiaries;
(s) statutory
Liens incurred or pledges or deposits made in favor of a Governmental Authority to secure the performance of obligations of the Borrower
or any of its Subsidiaries under Environmental Laws to which the Borrower or any of its Subsidiaries or any assets of the Borrower or
any of its Subsidiaries is subject, in each case incurred or made in the ordinary course of business or consistent with past practice;
(t) all
rights of expropriation, access or use or other similar right conferred by or reserved by any federal, state or municipal Governmental
Authority;
(u) the
right reserved to, or vested in, any Governmental Authority by any statutory provision or by the terms of any lease, license, franchise,
grant or permit of the Borrower or any Restricted Subsidiary, to terminate any such lease, license, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance thereof;
(v) Liens
arising from Cash Equivalents described in clause (i) of the definition of the term “Cash Equivalents”; and
(w) with
respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by any Applicable Law.
“Permitted
Equal Priority Refinancing Debt” shall mean any secured Indebtedness Incurred by the Borrower and/or the Guarantors in the form
of one or more series of senior secured notes, bonds, debentures or loans; provided that (a) such Indebtedness is secured by Liens
on all or a portion of the Collateral on an equal priority basis with the Liens on the Collateral securing the Obligations (but without
regard to the control of remedies) and is not secured by any property or assets of Holdings, the Borrower or any Restricted Subsidiary
other than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth in the provisos to the definition of
“Credit Agreement Refinancing Indebtedness”, (c) such Indebtedness is not at any time guaranteed by any Persons other than
Persons that are Guarantors and (d) the holders of such Indebtedness (or their representative) and Collateral Agent shall become parties
to a Customary Intercreditor Agreement described in clause (a) of the definition thereof providing that the Liens on the Collateral securing
such obligations shall rank equal in priority to the Liens on the Collateral securing the Obligations (but without regard to the control
of remedies).
“Permitted
Holder Group” shall have the meaning provided in the definition of the term “Permitted Holders”.
“Permitted
Holders” shall mean each of (a) the Investors, (b) the Employee Investors and (c) other than for purposes of determining
the “Permitted Holders” for purposes of clause (a)(i) of the definition of “Change of Control”, any group
(within the meaning of Section 13(d)(3) of the Exchange Act (or any successor provision)) the members of which include any of the
Permitted Holders specified in clauses (a) or (b) above (a “Permitted Holder Group”); provided that, in
the case of any Permitted Holder Group, no Person or other group (other than the Permitted Holders specified in clauses (a) or (b)
above) own, directly or indirectly, Capital Stock having more than 50.0% of the total voting power of the Voting Stock of Holdings
(or, for the avoidance of doubt, any New Holdings or Successor Holdings) or any Parent Entity held by such Permitted Holder
Group.
“Permitted
Initial Revolving Credit Borrowing Purposes” shall mean one or more Borrowings of Revolving Credit Loans equal to the sum of
(a) an amount sufficient to fund any OID or upfront fees required to be funded pursuant to the “flex provisions” of the Fee
Letter on the Closing Date plus (b) an amount sufficient to fund any ordinary course working capital requirements of the Borrower
and its Subsidiaries (including the Target, Amplify and their respective Subsidiaries) on the Closing Date plus (c) an amount sufficient
to cash collateralize letters of credit outstanding immediately prior to the Closing Date under the Existing Credit Facility plus
(d) an amount not to exceed $5,000,000 to pay the Merger Consideration, the Existing Debt Refinancing and/or the Transaction Expenses
(including any OID or upfront fees).
“Permitted Investment” shall have the
meaning provided in Section 10.5.
“Permitted
Junior Priority Refinancing Debt” shall mean secured Indebtedness Incurred by any Credit Party in the form of one or more series
of junior lien secured notes, bonds or debentures or junior lien secured loans; provided that (a) such Indebtedness is secured
by Liens on all or a portion of the Collateral on a junior priority basis to the Liens on the Collateral securing the Obligations and
any other First Lien Obligations and is not secured by any property or assets of Holdings, the Borrower or any Restricted Subsidiary other
than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth in the provisos in the definition of “Credit
Agreement Refinancing Indebtedness” (provided that such Indebtedness may be secured by a Lien on the Collateral that ranks
junior in priority to the Liens on the Collateral securing the Obligations and any other First Lien Obligations, notwithstanding any provision
to the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness”), (c) the holders of such Indebtedness
(or their representative) and the Collateral Agent shall become parties to a Customary Intercreditor Agreement described in clause (b)
of the definition thereof providing that the Liens on the Collateral securing such obligations shall rank junior in priority to the Liens
on the Collateral securing the Obligations, and (d) such Indebtedness is not at any time guaranteed by any Person other than Persons that
are Guarantors.
“Permitted
Refinancing Indebtedness” shall mean, with respect to any Indebtedness (the “Refinanced Indebtedness”),
any Indebtedness Incurred in exchange for or as a replacement of (including by entering into alternative financing arrangements in
respect of such exchange or replacement (in whole or in part), by adding or replacing lenders, creditors, agents, borrowers and/or
guarantors, or, after the original instrument giving rise to such Indebtedness has been terminated, by entering into any credit
agreement, loan agreement, note purchase agreement, indenture or other agreement), or the net proceeds of which are to be used for
the purpose of modifying, extending, refinancing, renewing, replacing, redeeming, repurchasing, defeasing, acquiring, amending,
supplementing, restructuring, repaying, prepaying, retiring, extinguishing or refunding (collectively to
“Refinance” or a “Refinancing” or “Refinanced”), such Refinanced
Indebtedness (or previous refinancing thereof constituting Permitted Refinancing Indebtedness); provided that (A) the
principal amount (or accreted value, if applicable) of any such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Refinanced Indebtedness outstanding immediately prior to the consummation of such
Refinancing except by an amount equal to the unpaid accrued interest, dividends and premium (including tender premiums), if any,
thereon plus defeasance costs, underwriting discounts and other amounts paid and fees and expenses (including OID, closing
payments, upfront fees and similar fees) incurred in connection with such Refinancing plus an amount equal to any existing
commitment unutilized and letters of credit undrawn thereunder, (B) if the Indebtedness being Refinanced is Indebtedness permitted
by Section 10.1(a), 10.1(h) or 10.1(u), the direct and contingent obligors with respect to such Permitted Refinancing Indebtedness
are not changed (except that any Credit Party may be added as an additional direct or contingent obligor in respect of such
Permitted Refinancing Indebtedness), (C) other than with respect to a Refinancing in respect of Indebtedness permitted pursuant to
Section 10.1(f) or Section 10.1(g), such Permitted Refinancing Indebtedness shall have a final maturity date equal to or earlier
than the final maturity date of, and shall have a Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Refinanced Indebtedness; provided that the foregoing requirements of this clause (C) shall not apply
to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which any such
customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (C) and such conversion or
exchange is subject only to conditions customary for similar conversions or exchanges, and (D) if the Indebtedness being Refinanced
is Indebtedness permitted by Section 10.1(a), 10.1(h) or 10.1(u), except for any of the following that are only applicable to
periods after the Latest Maturity Date, the terms and conditions contained in the documentation governing such Permitted Refinancing
Indebtedness, taken as a whole, are determined by the Borrower to either (A) be consistent with market terms and conditions and
conditions at the time of incurrence, issuance or effectiveness or (B) not be materially more restrictive on the obligor or obligors
of such Indebtedness than the terms and conditions contained in the documentation governing such Refinanced Indebtedness being
Refinanced (including, if applicable, as to collateral priority and subordination, but excluding as to interest rates (including
through fixed exchange rates), interest rate margins, rate floors, fees, maturity, currency denomination, funding discounts,
original issue discount and redemption or prepayment terms and premiums) (provided that, if the documentation governing such
Permitted Refinancing Indebtedness contains a Previously Absent Financial Maintenance Covenant, the Administrative Agent shall have
been given prompt written notice thereof and this Agreement shall be amended to include such Previously Absent Financial Maintenance
Covenant for the benefit of each Credit Facility (provided, however, that if (x) the documentation governing the
Permitted Refinancing Indebtedness that includes a Previously Absent Financial Maintenance Covenant consists of a revolving credit
facility (whether or not the documentation therefor includes any other facilities) and (y) such Previously Absent Financial
Maintenance Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility
or a covenant only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance
Covenant shall only be included in this Agreement for the benefit of each revolving credit facility hereunder (and not for the
benefit of any term loan facility hereunder) and such Permitted Refinancing Indebtedness shall not be deemed “more
restrictive” solely as a result of such Previously Absent Financial Maintenance Covenant benefiting only such revolving credit
facilities)); provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at
least five Business Days prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy the foregoing requirement in clause (D) shall be conclusive evidence
that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such
five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees).
“Permitted
Unsecured Refinancing Debt” shall mean unsecured Indebtedness Incurred by any Credit Party in the form of one or more series
of senior, senior subordinated or subordinated unsecured notes, bonds, debentures or loans; provided that (a) such Indebtedness
satisfies the applicable requirements set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness”
and (b) such Indebtedness is not at any time guaranteed by any Persons other than Persons that are Guarantors.
“Person”
shall mean any individual, partnership, Joint Venture, firm, corporation, unlimited liability company, limited liability company, association,
trust or other enterprise or any Governmental Authority.
“Planned Expenditures” shall have the
meaning provided in the definition of the term “Excess Cash Flow.”
“Platform” shall have the meaning provided
in Section 13.2.
“Pledge
Agreement” shall mean the Pledge Agreement, dated as of the Closing Date, among Holdings, the Borrower, the Domestic Subsidiary
pledgors party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C.
“Preferred
Stock” shall mean any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution, or winding
up.
“Prepayment
Event” shall mean any Asset Sale Prepayment Event, Recovery Prepayment Event or Debt Incurrence Prepayment Event.
“Prepayment Premium Period” shall have
the meaning provided in Section 5.1(b).
“Present
Fair Saleable Value” shall mean the amount that could be obtained by an independent willing seller from an independent willing
buyer if the assets (both tangible and intangible) of the applicable Person and its subsidiaries taken as a whole are sold on a going-concern
basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises
insofar as such conditions can be reasonably evaluated.
“Previous Holdings” shall have the meaning
provided in the definition of the term “Holdings.”
“Previously
Absent Financial Maintenance Covenant” shall mean, at any time (x) any financial maintenance covenant that is not included in
this Agreement at such time and (y) any financial maintenance covenant in any other Indebtedness that is included in this Agreement at
such time but with covenant levels that are more restrictive on the Borrower and the Restricted Subsidiaries than the covenant levels
included in this Agreement at such time.
“Prime
Rate” shall mean the rate of interest last quoted by The Wall Street Journal (or another national publication selected by the
Administrative Agent and reasonably acceptable to the Borrower) as the “Prime Rate” in the U.S. or, if The Wall Street Journal
or such other national publication 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 determined by the Administrative Agent) or any similar release by the
Federal Reserve Board (as determined by the Administrative Agent).
“Proceeding” shall have the meaning
provided in Section 13.5(a)(iii).
“Pro Forma Balance Sheet” shall have the
meaning provided in Section 8.9(b).
“Pro Forma Entity”
shall mean any Acquired Entity or Business, any Sold Entity or Business, any Converted Restricted Subsidiary or any Converted Unrestricted
Subsidiary.
“Pro Forma Financial Statements” shall
have the meaning provided in Section 8.9(b).
“Public
Company” shall mean any Person with a class or series of Capital Stock that is traded on the New York Stock Exchange, the NASDAQ
or any comparable stock exchange or similar market.
“Public
Company Costs” shall mean costs relating to compliance with the provisions of the Securities Act and the Exchange Act, in each
case 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, costs 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.
“Public Lender” shall have the meaning
provided in Section 13.2.
“Purchasing Borrower Party”
shall mean Holdings, the Borrower or any Restricted Subsidiary of the Borrower that becomes a Transferee pursuant to Section 13.6(g).
“Qualified Capital Stock” shall mean any
Capital Stock that is not Disqualified Capital Stock.
“Qualified
Proceeds” shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business; provided
that the Fair Market Value of any such assets or Capital Stock shall be determined by the Borrower in good faith.
“Qualified
Receivables Facility” shall mean any Receivables Facility of a Receivables Subsidiary that meets the following conditions: (a)
the 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 Borrower and its Restricted Subsidiaries; (b) all sales
of accounts receivables and related assets by the 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 Borrower); (c) the financing terms, covenants, termination events and
other provisions thereof shall be on market terms (as determined in good faith by the 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 Borrower or any of its Restricted Subsidiaries (other than a
Receivables Subsidiary).
“Qualifying
IPO” shall mean the issuance by Holdings (or any Parent Entity of Holdings) of its common Capital Stock in an underwritten primary
public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration
statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“Rating
Agency” shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Initial Term
Loans and/or the Borrower and/or any other Person, instrument or security publicly available, a nationally recognized statistical rating
agency or agencies, as the case may be, selected by the Borrower which shall be substituted for Moody’s or S&P or both, as the
case may be.
“Real
Property” shall mean, collectively, all right, title and interest in and to any and all parcels of or interests in real property
owned or leased by any person, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements
and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership
thereof.
“Receivables
Facility” shall mean any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed,
restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants
and indemnities made in connection with such facilities) to the Borrower or any of the Restricted Subsidiaries (other than a Receivables
Subsidiary) pursuant to which the Borrower or any of the Restricted Subsidiaries sells its accounts receivable 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
its accounts receivable 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
Fees” shall mean distributions or payments made directly or by means of discounts with respect to any accounts receivable or
participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary
in connection with, any Receivables Facility.
“Receivables
Subsidiary” shall mean any Subsidiary formed for the purpose of, and that solely engages only in, one or more Receivables Facilities
and other activities reasonably related thereto.
“Recovery
Event” shall mean (a) any damage to, destruction of, or other casualty or loss involving, any property or asset or (b) any seizure,
condemnation, confiscation or taking under the power of eminent domain of, or any requisition of title or use of or relating to, or any
similar event in respect of, any property or asset, in each case, of the Borrower or a Restricted Subsidiary.
“Recovery
Prepayment Event” shall mean the receipt of cash proceeds with respect to any settlement or payment in connection with any Recovery
Event in respect of any property or asset of the Borrower or any Restricted Subsidiary; provided that the term “Recovery
Prepayment Event” shall not include any Asset Sale Prepayment Event.
“Redemption Notice” shall have the meaning
provided in Section 10.7(a).
“Reference
Rate” shall mean an interest rate per annum equal to the rate per annum determined by the Administrative Agent at approximately
11:00 a.m. (London time) on such day by reference to ICE Benchmark Administration Limited’s “LIBOR” rate (or by reference
to the rates provided by any Person that take over the administration of such rate if ICE Benchmark Administration Limited is no longer
making a “LIBOR” rate available) for deposits in Dollars (as set forth on the Bloomberg screen displaying such “LIBOR”
rate (or, in the event such rate does not appear on a Bloomberg page or screen, on any successor or substitute page or screen that displays
such rate, or on the appropriate page of such other information service that publishes such rate from time to time, in each case as selected
by the Administrative Agent)) for a period equal to three-months; provided that, to the extent that the Eurodollar Rate is not
ascertainable pursuant to the foregoing, the Reference Rate shall be determined by the Administrative Agent to be the average of the rates
per annum at which deposits in Dollars are offered for a three month Interest Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on such date.
“Refinance,”
“Refinancing” and “Refinanced” shall have the meanings provided in the definition of the term “Permitted
Refinancing Indebtedness”.
“Refinanced
Debt” shall have the meaning provided in the definition of Credit Agreement Refinancing Indebtedness.
“Refinanced
Indebtedness” shall have the meaning provided in the definition of the term “Permitted Refinancing Indebtedness”.
“Refunding Capital Stock” shall have
the meaning provided in Section 10.6(a).
“Register” shall have the meaning provided
in Section 13.6(b)(v).
“Regulation
D” shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Regulation
T” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Regulation
U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Regulation
X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Reinvestment
Period” shall mean, with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event, the day which is eighteen
months after the receipt of cash proceeds by the Borrower or any Restricted Subsidiary from such Asset Sale Prepayment Event or Recovery
Prepayment Event.
“Related
Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees,
agents, advisors, controlling Persons and other representatives and successors of such Person or such Person’s Affiliates.
“Release”
shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration
into or through the Environment or within, from or into any building, structure, facility or fixture.
“Repayment
Amount” shall mean any Initial Term Loan Repayment Amount, an Extended Term Loan Repayment Amount with respect to any Extension
Series and the amount of any installment of Incremental Term Loans scheduled to be repaid on any date.
“Reportable
Event” shall mean an event described in Section 4043(c) of ERISA and the regulations thereunder, other than those events as
to which the 30 day notice period referred to in Section 4043 of ERISA has been waived, with respect to a Pension Plan (other than a Pension
Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) and (o) of Section 414 of
the Code).
“Repricing
Transaction” shall mean (a) the Incurrence by the Borrower of any term loans (including, without limitation, any new or additional
term loans under this Agreement, whether Incurred directly or by way of the conversion of Initial Term Loans into a new Class of replacement
term loans under this Agreement) that are broadly syndicated under credit facilities (i) having an Effective Yield that is less than the
Effective Yield for the Initial Term Loans of the respective equivalent Type, but excluding Indebtedness Incurred in connection with a
Qualifying IPO, Change of Control (or transaction that if consummated would constitute a Change of Control) or Transformative Acquisition
and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part,
outstanding principal of Initial Term Loans or (b) any effective reduction in the Effective Yield for the Initial Term Loans (e.g., by
way of amendment, waiver or otherwise), except for a reduction in connection with a Qualifying IPO, Change of Control (or transaction
that if consummated would constitute a Change of Control) or Transformative Acquisition and, in the case of any transaction under either
clause (a) or clause (b) above, the primary purpose of which is to lower the Effective Yield on any Initial Term Loans. Any determination
by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and binding on all
Lenders holding Initial Term Loans.
“Required
Lenders” shall mean, at any date and subject to the limitations set forth in Section 13.6(h), Non- Defaulting Lenders
having or holding greater than 50% of the sum of (a) the outstanding principal amount of the Term Loans in the aggregate at such
date, (b)(i) the Adjusted Total Revolving Credit Commitment at such date and the Adjusted Total Extended Revolving Credit Commitment
of all Classes at such date or (ii) if the Total Revolving Credit Commitment (or any Total Extended Revolving Credit Commitment of
any Class) has been terminated or, for the purposes of acceleration pursuant to Section 11, the outstanding principal amount of the
Revolving Credit Loans and Letter of Credit Exposure (excluding the Revolving Credit Exposure of Defaulting Lenders) in the
aggregate at such date and/or the outstanding principal amount of the Extended Revolving Credit Loans and letter of credit exposure
under such Extended Revolving Credit Commitments (excluding any such Extended Revolving Credit Loans and letter of credit exposure
of Defaulting Lenders) at such date and (c)(i) the Adjusted Total Additional/Replacement Revolving Credit Commitment of each Class
of Additional/Replacement Revolving Credit Commitments at such date or (ii) if the Adjusted Total Additional/Replacement Revolving
Credit Commitment of any Class of Additional/Replacement Revolving Credit Commitments has been terminated or for purposes of
acceleration pursuant to Section 11, the outstanding principal amount of the Additional/Replacement Revolving Credit Loans of such
Class and the related revolving credit exposure (excluding the revolving credit exposure of Defaulting Lenders) in the aggregate at
such date.
“Required Reimbursement Date” shall
have the meaning provided in Section 3.4(a).
“Required
Revolving Credit Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding greater than 50% of the Adjusted
Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment has been terminated at such time, a majority
of the outstanding principal amount of the Revolving Credit Loans and Revolving Credit Exposure (excluding the Revolving Credit Exposure
of Defaulting Lenders) at such time).
“Restoration
Certification” shall mean, with respect to any Recovery Prepayment Event, a certification made by an Authorized Officer of
the Borrower or a Restricted Subsidiary, as applicable, to the Administrative Agent prior to the end of the Reinvestment Period
certifying (a) that the Borrower or such Restricted Subsidiary intends to use the proceeds received in connection with such Recovery
Prepayment Event to repair, restore or replace the property or assets in respect of which such Recovery Prepayment Event occurred,
or otherwise invest in assets useful to the business, (b) the approximate costs of completion of such repair, restoration or
replacement and (c) that such repair, restoration, reinvestment, or replacement will be completed within the later of (x) eighteen
months after the date on which cash proceeds with respect to such Recovery Prepayment Event were received and (y) 180 days after
delivery of such Restoration Certification.
“Restricted Investments” shall mean any
Investment other than a Permitted Investment.
“Restricted
Payment Amount” shall mean, at any time, the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for the Test Period most recently ended (measured as of such date) based upon the Section 9.1 Financials most
recently delivered on or prior to such date, minus the sum of (a) the amount utilized by the Borrower or any Restricted Subsidiary
to make Restricted Payments in reliance on Section 10.6(f)(iv), (b) the amount utilized by the Borrower or any Restricted Subsidiary to
Investments in reliance on Section 10.5(vv) (c) the amount utilized by the Borrower or any Restricted Subsidiary to prepay, repurchase,
redeem or otherwise defease or make similar payments in respect of Junior Debt prior to its stated maturity made by the Borrower or any
Restricted Subsidiary in reliance on Section 10.7(a)(iii)(D).
“Restricted Payments” shall have the meaning
provided in Section 10.6.
“Restricted
Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary. Unless otherwise expressly provided
herein, all references herein to a “Restricted Subsidiary” shall mean a Restricted Subsidiary of the Borrower.
“Retained
Asset Sale Proceeds” shall mean that portion of the Net Cash Proceeds of an Asset Sale Prepayment Event or Recovery Payment
Event not required to be offered to prepay Term Loans pursuant to Section 5.2(a)(i) due to the Disposition Percentage being less than
100%.
“Retained Refused Proceeds” shall have
the meaning provided in Section 5.2(c)(ii).
“Return”
shall mean, with respect to any Investment, any dividend, distribution, interest, fee, premium, return of capital, repayment of principal,
income, profit (from a Disposition or otherwise) and any other similar amount received or realized in respect thereof.
“Revolving
Credit Borrowing” shall mean a borrowing consisting of Revolving Credit Loans of the same Type and Class and, in the case of
Eurodollar Loans, having the same Interest Period made by each of the Revolving Credit Lenders under such Class pursuant to Section 2.1(b).
“Revolving
Credit Commitment” shall mean, (a) with respect to each Lender that is a Lender on the Closing Date, the amount set forth opposite
such Lender’s name on Schedule 1.1(a) as such Lender’s “Revolving Credit Commitment,” (b) in the case of any Lender
that becomes a Lender after the Closing Date, the amount specified as such Lender’s “Revolving Credit Commitment” in
the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment and (c) in the
case of any Lender that increases its Revolving Credit Commitment or becomes an Incremental Revolving Credit Commitment Increase
Lender in respect of the Revolving
Credit Facility, in each case pursuant to Section 2.14, the amount specified in the applicable Incremental Agreement, in each case as
the same may be changed from time to time pursuant to terms hereof. The aggregate amount of Revolving Credit Commitments as of the Closing
Date is $50,000,000.
“Revolving
Credit Commitment Percentage” shall mean, at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s
Revolving Credit Commitment by (b) the aggregate amount of the Revolving Credit Commitments of all Revolving Credit Lenders; provided
that, at any time when the Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit Commitment
Percentage shall be its Revolving Credit Commitment Percentage as in effect immediately prior to such termination.
“Revolving
Credit Exposure” shall mean, with respect to any Lender at any time, the sum of (a) the aggregate principal amount of the Revolving
Credit Loans of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at such time and (c) such Lender’s
Swingline Exposure at such time.
“Revolving Credit Extension Request”
shall have the meaning provided in Section 2.15(b).
“Revolving Credit Facility” shall have
the meaning provided in the recitals to this Agreement.
“Revolving Credit Lender”
shall mean, at any time, any Lender that has a Revolving Credit Commitment at such time.
“Revolving Credit Loan” shall have the
meaning provided in Section 2.1(b)(i).
“Revolving
Credit Maturity Date” shall mean the fifth anniversary of the Closing Date, or, if such anniversary is not a Business Day, the
Business Day immediately following such anniversary.
“Revolving
Credit Note” shall mean a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns,
in substantially the form of Exhibit F-1 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit Lender
resulting from the Revolving Credit Loans made by such Revolving Credit Lender.
“Revolving
Credit Termination Date” shall mean the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit
Loans shall be outstanding and the Letter of Credit Obligations shall have been reduced to zero or Cash Collateralized.
“Rollover Investors” shall have the
meaning provided in the recitals to this Agreement.
“S&P”
shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.
“Sale
Leaseback” shall mean any transaction or series of related transactions pursuant to which the Borrower or any of the Restricted
Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and
(b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the
same purpose or purposes as the property being sold, transferred or Disposed of.
“Sanctions” shall mean any U.S. sanctions
administered by OFAC or the U.S. Department of State.
“SEC” shall mean the Securities and Exchange
Commission or any successor thereto.
“Section
9.1 Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or 9.1(b)
together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).
“Secured
Cash Management Agreement” shall mean, at the Borrower’s written election to the Administrative Agent, any agreement relating
to Cash Management Services that is entered into by and between Holdings, the Borrower or any Restricted Subsidiary and a Cash Management
Bank.
“Secured
Hedging Agreement” shall mean, at the Borrower’s written election to the Administrative Agent, any Hedging Agreement that
is entered into by and between Holdings, the Borrower or any Restricted Subsidiary and any Hedge Bank. For purposes of the preceding sentence,
the Borrower may deliver one notice designating all Hedging Agreements entered into pursuant to a specified Master Agreement as “Specified
Hedging Agreements”.
“Secured
Parties” shall mean, collectively, (a) the Lenders, (b) the Letter of Credit Issuers, (c) the Swingline Lender, (d) the Administrative
Agent, (e) the Collateral Agent, (f) each Hedge Bank, (g) each Cash Management Bank, (h) the beneficiaries of each indemnification obligation
undertaken by any Credit Party under the Credit Documents and (i) any successors, endorsees, permitted transferees and permitted assigns
of each of the foregoing.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securitization
Repurchase Obligation” shall mean any obligation of a seller (or any guaranty of such obligation) of assets subject to a Receivables
Facility in 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 the seller.
“Security
Agreement” shall mean the Security Agreement, dated as of the Closing Date, among Holdings, the Borrower, the Domestic Subsidiary
grantors party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B.
“Security
Documents” shall mean, collectively the Security Agreement, the Pledge Agreement, the Mortgages, if any, and each other security
agreement or other instrument or document executed and delivered pursuant to Section 6.2, 9.10, 9.11 or 9.14 and any Customary Intercreditor
Agreement executed and delivered
pursuant to Section 10.2 or pursuant
to any of the Security Documents.
“Similar
Business” shall mean any business conducted or proposed to be conducted by the Borrower and the Restricted Subsidiaries on the
Closing Date or any business that is similar, reasonably related, incidental or ancillary thereto.
“Software” shall have the meaning provided
in the Security Agreement.
“Sold Entity or Business”
shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Solvent” shall mean, at the time of
determination:
(a)
each of the Fair Value and the Present Fair Saleable Value of the assets of a Person and its Subsidiaries taken as a whole exceed
their Stated Liabilities and Identified Contingent Liabilities; and
(b) such Person and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and
(c)
such Person and its Subsidiaries taken as a whole can pay their Stated Liabilities and Identified Contingent Liabilities as they
mature.
Defined terms
used in the foregoing definition shall have the meanings set forth in the solvency certificate delivered on the Closing Date pursuant
to Section 6.8.
“Special
Purpose Subsidiary” shall mean any (a) not-for-profit Subsidiary, (b) captive insurance company or (c) Receivables Subsidiary
and any other Subsidiary formed for a specific bona fide purpose not including substantive business operations and that does not own any
material assets, in each case, that has been designated as a “Special Purpose Subsidiary” by the Borrower.
“Specified
Acquisition Agreement Representations” shall mean the representations and warranties made by, or with respect to, the Target
and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Holdings
(or its affiliates) has the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the
Acquisition Agreement or to decline to consummate the Mergers (in accordance with the terms thereof) as a result of a breach of such representations
and warranties in the Acquisition Agreement.
“Specified Debt Incurrence Prepayment Event”
shall have the meaning provided in Section 5.2(a)(i).
“Specified Existing Revolving
Credit Commitment” shall mean any Existing Revolving Credit Commitments belonging to a Specified Existing Revolving Credit Commitment
Class.
“Specified
Existing Revolving Credit Commitment Class” shall have the meaning provided in Section 2.15(b).
“Specified
Representations” shall mean the representations and warranties of the Borrower and the Guarantors set forth in Sections 8.1
(with respect to the organizational existence only of Holdings and Merger Sub), the first two sentences of Section 8.2, Section 8.3(c)
(with respect to the Incurrence of the Loans on the Closing Date only, the provision of the Guarantees by the Credit Parties on the Closing
Date and the granting of the Liens on the Collateral by the Credit Parties on the Closing Date), Section 8.5, Section 8.7, Section 8.16,
Section 8.19(b) (with respect to the use of the proceeds of the Loans on the Closing Date), Section 8.20(b) (with respect to the use of
the proceeds of the Loans on the Closing Date), Section 8.21, Section 8.23 and Section 3.3 of the Security Agreement (limited to the Security
Documents required to be delivered on the Closing Date and the other requirements set forth in Section 6).
“Specified
Restructuring” means any restructuring initiative, cost saving initiative or other similar strategic initiative of the Borrower
or any of its Restricted Subsidiaries after the Closing Date described in reasonable detail in a certificate of an Authorized Officer
delivered by the Borrower to the Administrative Agent.
“Specified
Subsidiary” shall mean, at any date of determination, any Restricted Subsidiary that would be a “significant subsidiary”
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the
Closing Date.
“Specified
Transaction” shall mean, with respect to any period, any Investment (including Acquisitions), sale, transfer or other Disposition
of assets or property, Incurrence, Refinancing, prepayment, redemption, repurchase, defeasance, acquisition, similar payment, extinguishment,
retirement or repayment of Indebtedness, Restricted Payment, Subsidiary designation, provision of Incremental Term Loans, provision of
Incremental Revolving Credit Commitment Increases, provision of Additional/Replacement Revolving Credit Commitments, creation of Extended
Term Loans or Extended Revolving Credit Commitments or other event that by the terms of the Credit 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.
“Sponsor”
shall mean, collectively Hellman & Friedman LLC and/or its Affiliates and any funds, partnerships or other co-investment vehicles
managed, advised or controlled by the foregoing or their respective Affiliates, but excluding any operating portfolio companies of Hellman
& Friedman LLC or any such Affiliate.
“SPV” shall have the meaning provided
in Section 13.6(c).
“Standard
Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Borrower
or any Subsidiary of the Borrower which the 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.
“Stated
Amount” of any Letter of Credit shall mean, unless otherwise specified herein, the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter
of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving pro forma effect to all such increases,
whether or not such maximum stated amount is in effect at such time.
“Statutory Reserves” shall have the meaning
provided in the definition of the term “Eurodollar Rate.”
“Subordinated
Indebtedness” shall mean any third-party Indebtedness for borrowed money (and any Guarantee Obligation in respect thereof) that
is subordinated expressly by its terms in right of payment to the Obligations.
“Subordinated
Indebtedness Documentation” shall mean any document or instrument issued or executed with respect to any Subordinated Indebtedness.
“Subsidiary”
of any Person shall mean and include (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and (b) any limited liability company, partnership, association, Joint
Venture or other entity in which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the time.
Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.
“Subsidiary Guarantor” shall mean each
Guarantor that is a Subsidiary of the Borrower.
“Successor
Benchmark Rate” shall have the meaning provided in Section 2.10(d).
“Successor Borrower” shall have the meaning
provided in Section 10.3(a).
“Successor Holdings” shall have the meaning
provided in Section 10.9(b).
“Swap” shall
mean any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the
Commodity Exchange Act.
“Swap Obligation” shall mean any obligation
to pay or perform under any Swap.
“Swap
Termination Value” shall mean, in respect of any one or more Hedging Agreements, after taking into account the effect of any
legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements
have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior
to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which
may include a Lender or any Affiliate of a Lender).
“Swingline Commitment” shall mean $5,000,000.
“Swingline
Exposure” shall mean, with respect to any Lender, at any time, such Lender’s Revolving Credit Commitment Percentage of
the Swingline Loans outstanding at such time.
“Swingline
Lender” shall mean UBS AG, Stamford Branch, in its capacity as lender of Swingline Loans hereunder, or such other financial
institution that, after the Closing Date, shall agree to act in the capacity of lender of Swingline Loans hereunder. In the event that
there is more than one Swingline Lender at any time, references herein and in the other Credit Documents to the Swingline Lender shall
be deemed to refer to the Swingline Lender in respect of the applicable Swingline Loan or to all Swingline Lenders, as the context requires.
“Swingline Loan” shall have the meaning
provided in Section 2.1(d)(i).
“Swingline Maturity Date”
shall mean, with respect to any Swingline Loan, the date that is three Business Days prior to the Revolving Credit Maturity Date.
“Target” shall have the meaning provided
in the recitals to this Agreement.
“Taxes” shall have the meaning provided
in Section 5.4(a).
“Term Loan” shall
mean an Initial Term Loan, an Incremental Term Loan or any Extended Term Loan, as applicable.
“Term Loan Exchange Notes” shall have the
meaning provided in Section 2.17(a).
“Term Loan Exchange Effective Date” shall
have the meaning provided in Section 2.17(a).
“Term Loan Extension Request” shall have
the meaning provided in Section 2.15(a).
“Term
Loan Facility” shall mean any of the Initial Term Loan Facility, any Incremental Term Loan Facility and any Extended Term Loan
Facility.
“Term
Note” shall mean a promissory note of the Borrower payable to any Initial Term Loan Lender or its registered assigns, in substantially
the form of Exhibit F-2 hereto, evidencing the aggregate Indebtedness of the Borrower to such Initial Term Loan Lender resulting from
the Initial Term Loans made by such Initial Term Loan Lender.
“Test
Period” shall mean, for any determination under this Agreement, the most recent period of four consecutive fiscal quarters
of the Borrower ended on or prior to such date of determination (taken as one accounting period) in respect of which Section 9.1 Financials
shall have been delivered to the Administrative Agent for each fiscal quarter or fiscal year in such period; provided that,
prior to the first date that Section 9.1 Financials shall have been delivered pursuant to Section 9.1(a) or (b), the Test Period in effect
shall be the period of four consecutive fiscal quarters of the Borrower ended June 30, 2017. A Test Period may be designated by reference
to the last day thereof (i.e. the June 30, 2017 Test Period refers to the period of four consecutive fiscal quarters of the Borrower ended
June 30, 2017), and a Test Period shall be deemed to end on the last day thereof.
“Total
Additional/Replacement Revolving Credit Commitment” shall mean the sum of Additional/Replacement Revolving Credit Commitments
of all the Lenders providing any Class of Additional/Replacement Revolving Credit Commitments.
“Total
Commitment” shall mean the sum of the Total Initial Term Loan Commitment, the Total Incremental Term Loan Commitment, the Total
Revolving Credit Commitment, the Total Additional/Replacement Revolving Credit Commitment and the Total Extended Revolving Credit Commitment
of each Extension Series.
“Total
Credit Exposure” shall mean, at any date, the sum, without duplication, of the Total Revolving Credit Commitment at such date
(or, if the Total Revolving Credit Commitment shall have terminated on such date, the aggregate Revolving Credit Exposure of all Revolving
Credit Lenders at such date), the Total Additional/Replacement Revolving Credit Commitment at such date (or, if the Total Additional/Replacement
Revolving Credit Commitment shall have been terminated on such date, the aggregate exposure of all Additional/Replacement Revolving Credit
Lenders at such date), the Total Extended Revolving Credit Commitment of each Extension Series at such date (or if the Total Extended
Revolving Credit Commitment of any Extension Series shall have been terminated on such date, the aggregate exposures of all lenders under
such series at such date) and the outstanding principal amount of all Term Loans at such date.
“Total
Extended Revolving Credit Commitment” shall mean the sum of all Extended Revolving Credit Commitments of all Lenders under each
Extension Series.
“Total
Incremental Term Loan Commitment” shall mean the sum of the Incremental Term Loan Commitments of any Class of Incremental Term
Loans of all the Lenders providing such Class of Incremental Term Loans.
“Total
Initial Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments of all the Lenders.
“Total
Revolving Credit Commitment” shall mean, on any date, the sum of the Revolving Credit Commitments on such date of all the Revolving
Credit Lenders.
“Tranche B Term Lender” shall
have the meaning provided for such term in the First Incremental Agreement.
“Tranche B Term Loan” shall have
the meaning provided for such term in the First Incremental Agreement.
“Transaction
Expenses” shall mean any fees or expenses incurred or paid by the Sponsor, Investors, Merger Sub, Merger Sub II, Holdings, the
Borrower, any of their Subsidiaries or any of their Affiliates in connection with the Transactions, this Agreement and the other Credit
Documents and the transactions contemplated hereby and thereby.
“Transactions”
shall mean, collectively, (a) the formation of Holdings, Merger Sub, Merger Sub II and any Parent Entity of Holdings for purposes of consummating
the other transactions contemplated by the Acquisition Agreement, (b) the entry into the Acquisition Agreement, the Commitment Letter,
the Fee Letter and any other Contractual Obligations in connection therewith, (c) the Equity Contribution, including the rollover consummated
by the Rollover Investors, (d) the Mergers and the consummation of the other transactions contemplated by the Acquisition Agreement, including
the payment of the Merger Consideration and the payment of certain Transaction Expenses, (e) the Existing Debt Refinancing, (f) the entering
into of the Agreement, the other Credit Documents, and funding of the Loans on the Closing Date and the consummation of the other transactions
contemplated by this Agreement and the other Credit Documents and (g) the payment of the Transaction Expenses.
“Transferee” shall have the meaning
provided in Section 13.6(f).
“Transformative
Acquisition” shall mean any acquisition by the Borrower or any Restricted Subsidiary that is either (a) not permitted by the
terms of this Agreement immediately prior to the consummation of such acquisition or (b) if permitted by the terms of this Agreement immediately
prior to the consummation of such acquisition, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility
under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by
the Borrower acting in good faith.
“Treasury Capital Stock” shall have the
meaning provided in Section 10.6(a).
“Type” shall mean as to any Loan, its nature
as an ABR Loan or a Eurodollar Loan.
“UCC”
shall mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.
“UCP”
shall mean, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce
(“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“Unfunded
Current Liability” of any Pension Plan shall mean the amount, if any, by which the present value of the accrued benefits under
the Pension Plan exceeds the Fair Market Value of the assets allocable thereto as of the close of its most recent plan year, determined
in both cases using the applicable assumptions promulgated under Section 430 of the Code.
“United States Tax Compliance Certificate”
shall have the meaning provided in Section 5.4(d).
“Unpaid Drawing” shall have the meaning
provided in Section 3.4(a).
“Unrestricted
Subsidiary” shall mean (a) any Subsidiary of the Borrower that is formed or acquired after the Closing Date and is designated
as an Unrestricted Subsidiary by the Borrower pursuant to Section 9.15 subsequent to the Closing Date, (b) any existing Restricted Subsidiary
of the Borrower that is designated as an Unrestricted Subsidiary by the Borrower pursuant to Section 9.15 subsequent to the Closing Date
and (c) any Subsidiary of an Unrestricted Subsidiary.
“Voting
Stock” shall mean, with respect to any Person, shares of such Person’s Capital Stock that is at the time generally entitled,
without regard to contingencies, to vote in the election of the Board of Directors of such Person. To the extent that a partnership agreement,
limited liability company agreement or other agreement governing a partnership or limited liability company provides that the members
of the Board of Directors of such partnership or limited liability company (or, in the case of a limited partnership whose business and
affairs are managed or controlled by its general partner, the Board of Directors of the general partner of such limited partnership) is
appointed or designated by one or more Persons rather than by a vote of Voting Stock, each of the Persons who are entitled to appoint
or designate the members of such Board of Directors will be deemed to own a percentage of Voting Stock of such partnership or limited
liability company equal to (a) the aggregate votes entitled to be cast on such Board of Directors by the members of such Board of Directors
which such Person or Persons are entitled to appoint or designate divided by (b) the aggregate number of votes of all members of such
Board of Directors.
“Weighted
Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount
of such Indebtedness.
“Wholly-Owned
Subsidiary” shall mean a Subsidiary of a Person, all of the outstanding Capital Stock of which (other than (x) any director’s
qualifying shares and (y) shares issued to other Persons to the extent required by Applicable Law) are owned by such Person and/or by
one or more wholly-owned Subsidiaries of such Person.
“Withdrawal
Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Title IV of ERISA.
“Withholding
Agent” shall mean any Credit Party, the Administrative Agent and, in the case of any U.S. federal withholding tax, any other
withholding agent, if applicable.
“Write-Down
and Conversion Power” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule.
1.2
Other Interpretive Provisions. With reference to this Agreement and each other Credit Document, unless otherwise
specified herein or in such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The
words “herein,” “hereto,” “hereof” and “hereunder” and words
of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision
thereof.
(c) The term “including” is by way of example and not limitation.
(d)
Section, Exhibit and Schedule references are to the Credit Document in which such reference appears.
(e) The
term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or electronic form.
(f) In the computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including”; the words “to” and “until” each mean “to
but excluding”; and the word “through” means “to and including.”
(g)
Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect
the interpretation of this Agreement or any other Credit Document.
(h)
Any reference to any Person shall be constructed to include such Person’s successors or assigns (subject to any restrictions
on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded
to any or all of the functions thereof.
(i) Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
(j) The
word “will” shall be construed to have the same meaning as the word “shall.”
(k) The
words “asset” and “property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(a) All
accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP, applied in a manner consistent with that used in preparing the Historical Financial Statements, except as otherwise specifically
prescribed herein; provided, however, that (i) if the Borrower notifies the Administrative Agent that the Borrower requests
an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date on the operation
of such provision, regardless of whether any such notice is given before or after such Accounting Change, then such provision shall be
interpreted as if such Accounting Change had not occurred until such notice shall have been withdrawn or such provision amended in accordance
herewith and (ii) if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof
to eliminate the effect of any Accounting Change occurring after the Closing Date on the operation of such provision, regardless of whether
any such notice is given before or after such Accounting Change, then such provision shall be interpreted as if such Accounting Change
had not occurred until such notice shall have been withdrawn or such provision amended in accordance herewith, but only to the extent
that, without undue burden or expense, the Borrower, its auditors and/or its financial systems are capable of interpreting such provisions
as if such Accounting Change had not occurred.
(b) Where
reference is made to “the Borrower and its Restricted Subsidiaries, on a consolidated basis” or similar language, such consolidation
shall not include any Subsidiaries of the Borrower other than Restricted Subsidiaries.
(c) Notwithstanding
any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations
of amounts and ratios referred to herein shall be made, without giving effect to any election under the Financial Accounting Standards
Board’s Accounting Standards Codification No. 825—Financial Instruments, or any successor thereto (including pursuant to
the Accounting Standards Codification), to value any Indebtedness of Holdings, the Borrower or any Subsidiary at “fair value”
as defined therein.
(d) For
the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business in respect of which a definitive agreement
for the Disposition thereof has been entered into as discontinued operations, the Net Income of such Person or business shall not be
excluded from the calculation of Net Income until such Disposition shall have been consummated.
1.4 Rounding.
Any financial ratios required to be maintained or complied with by the 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).
1.5 References
to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organizational Documents, agreements (including
the Credit Documents) and other Contractual Obligations shall be deemed to include all subsequent amendments, restatements, amendment
and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements,
amendment and restatements, extensions, supplements and other modifications are permitted by this Agreement; and (b) references to any
Applicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting
such Applicable Law.
1.6 Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard,
as applicable, for times of the day in New York City, New York).
1.7 Timing
of Payment or Performance. Except as otherwise provided herein, when the payment of any obligation or the performance of any covenant,
duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other
than as described in Section 2.5 or Section 2.9) or performance shall extend to the immediately succeeding Business Day.
1.8
Currency Equivalents Generally.
(a) For purposes of any determination under Section 9, Section 10 (other than for purposes of calculating the Consolidated
First Lien Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt
to Consolidated EBITDA Ratio or the Consolidated EBITDA to Consolidated Interest Expense Ratio) or Section 11 or any determination under
any other provision of this Agreement requiring the use of a current exchange rate, all amounts Incurred or proposed to be Incurred
in currencies other than Dollars shall be translated into Dollars at the Exchange Rate then in effect on the date of such determination;
provided, however, that (x) for purposes of determining compliance with Section 10 with respect to the amount of any
Indebtedness, Investment, Disposition, Restricted Payment or payment under Section 10.7 in a currency other than Dollars, no Default
or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such
Indebtedness or Investment is Incurred or Disposition, Restricted Payment or payment under Section 10.7 is made, (y) for purposes
of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness, if such Indebtedness is Incurred
to Refinance other Indebtedness denominated in a foreign currency, and such Refinancing would cause the applicable Dollar- denominated
restriction to be exceeded if calculated at the relevant currency Exchange Rate in effect on the date of such Refinancing, such Dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of the Indebtedness that is Incurred to Refinance
such Indebtedness does not exceed the principal amount (or accreted amount) of such Indebtedness being Refinanced, except by an amount
equal to the accrued interest, dividends and premium (including tender premiums), if any, thereon plus defeasance costs, underwriting
discounts and other amounts paid and fees and expenses (including OID, closing payments, upfront fees and similar fees) incurred in connection
with such Refinancing plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (z)
for the avoidance of doubt, the foregoing provisions of this Section 1.8 shall otherwise apply to such Sections, including with respect
to determining whether any Indebtedness or Investment may be Incurred or Disposition, Restricted Payment or payment under Section 10.7
may be made at any time under such Sections. For purposes of calculating the Consolidated First Lien Debt to Consolidated EBITDA Ratio,
the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated EBITDA Ratio and the Consolidated
EBITDA to Consolidated Interest Expense Ratio, amounts in currencies other than Dollars shall be translated into Dollars at the applicable
exchange rates used in preparing the most recently delivered financial statements pursuant to Section 9.1(a) or (b), or, prior to the
delivery of such financial statements, the financial statements delivered pursuant to Section 6.9.
(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 Borrower’s consent (such consent not to be unreasonably withheld) to appropriately reflect
a change in currency of any country and any relevant market conventions or practices relating to such change in currency.
1.9 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by
Class (e.g., a “Revolving Credit Loan”) or by Type (e.g., a “Eurodollar Loan”) or
by Class and Type (e.g., a “Eurodollar Revolving Credit Loan”). Borrowings also may be classified and referred
to by Class (e.g., a “Revolving Credit Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”)
or by Class and Type (e.g., a “Eurodollar Revolving Credit Borrowing”).
1.10 Letter
of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar
equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases
in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.11
Limited Condition Acquisitions.
(a) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining
compliance with any provision of this Agreement that requires that no Default, Event of Default or specified Event of Default, as applicable,
has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrower,
be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date on which
the definitive acquisition agreements for such Limited Condition Acquisition are entered. For the avoidance of doubt, if the Borrower
has exercised its option under the first sentence of this clause (a), and any Default, Event of Default or specified Event of Default
occurs following the date on which the definitive acquisition agreements for the applicable Limited Condition Acquisition were entered
into and prior to or on the date of the consummation of such Limited Condition Acquisition, any such Default, Event of Default or specified
Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection
with such Limited Condition Acquisition is permitted hereunder.
(b) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining
compliance with any provision of this Agreement which requires the calculation of the Consolidated First Lien Debt to Consolidated EBITDA
Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated EBITDA Ratio or the Consolidated
EBITDA to Consolidated Interest Expense Ratio; or
(ii) testing
baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA);
in each case, at the option of
the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA
Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date on which
the definitive acquisition agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”),
and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection
therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the
Test Period most recently ended on or prior to the applicable LCA Test Date, the Borrower could have taken such action on the relevant
LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance
of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as
of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated
EBITDA of the Borrower or the Person subject to such Limited Condition Acquisition, on or prior to the date of consummation of the relevant transaction
or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made
an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or test with respect
to the Incurrence of Indebtedness or Liens, or the making of distributions or Restricted Payments, Investments, payments pursuant to
Section 10.7, Dispositions, mergers, Dispositions of all or substantially all of the assets of the Borrower or the designation of an
Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition
Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation
of such Limited Condition Acquisition, any such ratio or test shall be calculated on a pro forma basis assuming such Limited Condition
Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof)
have been consummated.
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1.12
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Pro Forma and Other Calculations.
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(a) Notwithstanding
anything to the contrary herein, financial ratios and tests (including measurements of Consolidated EBITDA), including the Consolidated
EBITDA to Consolidated Interest Expense Ratio, Consolidated First Lien Debt to Consolidated EBITDA Ratio, Consolidated Secured Debt to
Consolidated EBITDA Ratio and Consolidated Total Debt to Consolidated EBITDA Ratio shall be calculated in the manner prescribed by this
Section 1.12; provided that, notwithstanding anything to the contrary in clauses (b), (c), (d) or (e) of this Section 1.12, when
calculating the Consolidated First Lien Debt to Consolidated EBITDA Ratio for purposes of (i) the definition of “Applicable Margin,”
and (ii) Sections 5.2(a)(i) and 5.2(a)(ii), the events described in this Section 1.12 that occurred subsequent to the end of the applicable
Test Period shall not be given pro forma effect; provided, however, that for purposes of any determination under the
proviso to Section 5.2(a)(ii), Consolidated First Lien Debt shall be determined after giving pro forma effect to any voluntary prepayments
of Term Loans made pursuant to Section 5.1 after the end of the Borrower’s most recently ended full fiscal year and prior to the
date of the applicable payment to be made pursuant to such Section 5.2(a)(ii) assuming such voluntary prepayments had been made on the
last day of such fiscal year. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis or requires
pro forma compliance, the reference to “Test Period” for purposes of calculating such financial ratio or test shall
be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which Section 9.1 Financials have been
delivered.
(b) For
purposes of calculating any financial ratio or test (including Consolidated Total Assets or Consolidated EBITDA), Specified Transactions
(with any Incurrence or Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.12) that
have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the event
for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions
(and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified
Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total Assets or “unrestricted”
cash and Cash Equivalents, on the last day of the applicable Test Period). If, since the beginning of any applicable Test Period, any
Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any Restricted
Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant
to this Section 1.12, then such financial ratio or test (including Consolidated Total Assets and Consolidated EBITDA) shall be calculated
to give pro forma effect thereto in accordance with this Section 1.12.
(c) Whenever
pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction or a Specified Restructuring, the
pro forma calculations shall be made in good faith by an Authorized Officer of the Borrower and may include, for the avoidance of doubt,
the amount of “run rate” cost savings, operating expense reductions and cost synergies and other synergies projected by the
Borrower in good faith to result from or relating to any Specified Transaction (including the Transactions) or Specified Restructuring
that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are
expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions, cost synergies
or other synergies have been taken, have been committed to be taken, with respect to which substantial steps have been taken or which
are expected to be taken (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings,
operating expense reductions, cost synergies and other synergies had been realized on the first day of such period and as if such
cost savings, operating expense reductions, cost synergies and other synergies were realized during the entirety of such period and “run
rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken,
any action with respect to which substantial steps have been taken or any action that is expected to be taken (including any savings
expected to result from the elimination of Public Company Costs, if any) net of the amount of actual benefits realized during such period
from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests
and during any subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction
or Specified Transaction, and any such adjustments included in the initial pro forma calculations shall continue to apply to subsequent
calculations of such financial ratios or tests, including during any subsequent test periods in which the effects thereof are expected
to be realizable; provided that (A) such amounts are reasonably identifiable in the good faith judgment of the Borrower, (B) such
actions are taken, such actions are committed to be taken, substantial steps with respect to such action have been taken or such actions
are expected to be taken no later than eight fiscal quarters after the date of consummation of such Specified Transaction or the date
of initiation of such Specified Restructuring (or, with respect to the Transactions, eight fiscal quarters) and (C) no amounts shall
be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components
thereof), whether through a pro forma adjustment or otherwise, with respect to such period.
(d) In the event that the Borrower or any Restricted Subsidiary Incurs (including by assumption or guarantee) or Refinances
(including by redemption, repurchase, repayment, retirement or extinguishment) any Indebtedness, in each case included in the calculations
of any financial ratio or test, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and
prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall
be calculated giving pro forma effect to such Incurrence or Refinancing of Indebtedness (including pro forma effect to the application
of the net proceeds therefrom), in each case to the extent required, as if the same had occurred on the last day of the applicable Test
Period (except in the case of the Consolidated EBITDA to Consolidated Interest Expense Ratio (or similar ratio), in which case such Incurrence
or Refinancing of Indebtedness will be given effect, as if the same had occurred on the first day of the applicable Test Period); provided
that, with respect to any Incurrence of Indebtedness permitted by the provisions of this Agreement in reliance on the pro forma calculation
of the Consolidated First Lien Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated
EBITDA to Consolidated Interest Expense Ratio and/or the Consolidated Total Debt to Consolidated EBITDA Ratio, as applicable, pro forma
effect shall not be given to any Indebtedness being Incurred (or expected to be Incurred) substantially simultaneously or contemporaneously
with the Incurrence of any such Indebtedness in reliance on any “basket” set forth in this Agreement (including the Incremental
Base Amount, any “baskets” measured as a percentage of Consolidated EBITDA) including any Credit Event under the Revolving
Credit Facility or, except to the extent expressly required to be calculated otherwise in Section 2.14 or Section 10.1(u), any Additional/Replacement
Revolving Credit Facility.
(e) Whenever
pro forma effect is to be given to a pro forma event, the pro forma calculations shall be made in good faith by an Authorized Officer
of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness
shall be calculated as if the rate in effect on the date of the event for which the calculation of the Consolidated EBITDA to Consolidated
Interest Expense Ratio is made had been the applicable rate for the entire period (taking into account any interest Hedging Agreements
applicable to such Indebtedness). To the extent interest expense generated by Hedging Obligations that have been terminated is included
in Consolidated Interest Expense prior to the date of the event for which the calculation of the Consolidated EBITDA to Consolidated
Interest Expense Ratio is being made, Consolidated Interest Expense shall be adjusted to exclude such expense. Interest on a Financing
Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by an Authorized Officer of the Borrower to be the
rate of interest implicit in such Financing Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate,
shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower
or applicable Restricted Subsidiary may designate. For purposes of making the computations referred to above, interest on any Indebtedness
under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness
during the applicable period or, if lower, the maximum commitments under such revolving credit facility as of the date of the event for
which the calculation of the Consolidated EBITDA to Consolidated Interest Expense Ratio is being made, except as set forth in Section
1.12(d).
(f) Any
such pro forma calculation may include, without limitation, (1) all adjustments of the type described in clause (a)(viii) of the definition
of “Consolidated EBITDA” to the extent such adjustments, without duplication, continue to be applicable to such Test Period,
and (2) adjustments calculated in accordance with Regulation S-X under the Securities Act.
SECTION 2. Amount
and Terms of Credit Facilities.
(a)
Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally
agrees to make (or in the case of any Rollover Lender (as defined in the First Incremental Agreement) on
the First Incremental Agreement Effective Date, be deemed to make) a loan or loans (each, an “Initial Term Loan”)
to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender,
(ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made (x)
in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described
in clause (a) of the definition of Initial Term Loan Commitments, on the Closing Date, and
(y) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause
(b) of the definition of Initial Term Loan Commitments, on the First Incremental Agreement Effective Date, (iv) shall be denominated
in Dollars, (ivv) may, at the option of the
Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial
Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial
Term Loans of the same Type and (vvi)
may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term
Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(b)
(i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make
a loan or loans (each, a “Revolving Credit Loan”) to the Borrower in U.S. Dollars, which Revolving Credit Loans (A)
shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (B) shall not, after giving pro forma effect thereto
and to the application of the proceeds thereof, result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s
Revolving Credit Commitment at such time, (C) shall not, after giving pro forma effect thereto and to the application of the proceeds
thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit
Commitment then in effect, (D) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving
Credit Maturity Date (provided that notwithstanding the foregoing, the aggregate amount of all Revolving Credit Loans made on the
Closing Date shall not exceed the Initial Revolving Borrowing Amount), (E) may at the option of the Borrower be Incurred and maintained
as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders
pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the
same Type and (F) may be repaid and reborrowed in accordance with the provisions hereof.
(ii)
On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full and the Revolving Credit
Commitments shall terminate.
(c)
Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender
to make such Eurodollar Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to
repay such Eurodollar Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased
costs to the Borrower resulting therefrom (which obligation of the 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 determines would be otherwise
disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions
of Section 2.10 shall apply).
(d)
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees,
at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each,
a “Swingline Loan”) to the Borrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the
benefit of the provisions of Section 2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not,
after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all
Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Commitment then in effect, (E) may be repaid and reborrowed
in accordance with the provisions hereof and (F) shall mature no later than the date ten Business Days after such Swingline Loan is made.
On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline
Loan after receiving a written notice from either the Borrower or the Administrative Agent stating that a Default or an Event of Default
exists and is continuing until such time as the Swingline Lender shall have received written notice (x) of rescission of all such notices
from the party or parties originally delivering such notice, (y) of the waiver of such Default or Event of Default in accordance with
the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(ii)
On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with
a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which
case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on
the same Business Day by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage,
and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline
Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon same Business Days’ notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to
it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount
for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default
or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving
Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding
under any Debtor Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from
the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause
each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided
that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective
participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing the
same from and after such date of purchase.
(iii)
The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving
Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as
a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative
Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the
effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under
this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit
Lender in its capacity as a lender of Swingline Loans hereunder.
(iv)
The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing
a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective
upon the earlier of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the
date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure
of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline
Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to
Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
2.2 Minimum
Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing of Term Loans or
Revolving Credit Loans shall be in a multiple of $500,000 (or, in the case of a Borrowing of Revolving Credit Loans on the Closing
Date, $100,000), and Swingline Loans shall be in a multiple of $100,000, and, in each case, shall not be less than the Minimum
Borrowing Amount with respect for such Type of Loans (except that that Mandatory Borrowings shall be made in the amounts required by
Section 2.1(d) and Revolving Credit Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made
in the amounts required by Section 3.3 or Section 3.4, as applicable). More than one Borrowing may be Incurred on any date; provided that
at no time shall there be outstanding more than twelve (12) Eurodollar Borrowings under this Agreement (which number of Eurodollar
Borrowings may be increased or adjusted by agreement between the Borrower and the Administrative Agent in connection with any
Incremental Facility or Extended Loans/Commitments). For purposes of the foregoing, Borrowings having different Interest Periods,
regardless of whether they commence on the same date, shall be considered separate Borrowings.
(a)
The Borrower shall give the Administrative Agent at the Administrative Agent’s Office (i) prior to 1:00 p.m. (New
York City time) at least three Business Days’ prior written notice of the Borrowing of Initial Term Loans or any Borrowing of Incremental
Term Loans (unless otherwise set forth in the applicable Incremental Agreement), as the case may be, if all or any of such Term Loans
are to be initially Eurodollar Loans and (ii) written notice prior to 12:00 p.m. (New York City time) on the date of the Borrowing of
Initial Term Loans or any Borrowing of Incremental Term Loans, as the case may be, if all or any of such Term Loans are to be ABR Loans.
Such notice (together with each notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(b) and each notice of a Borrowing
of Swingline Loans pursuant to Section 2.3(c), a “Notice of Borrowing”) shall be in substantially the form of Exhibit
D and shall specify (i) the aggregate principal amount of the Initial Term Loans or Incremental Term Loans, as the case may be, to be
made, (ii) the date of the Borrowing (which shall be, (x) in the case of the Initial
Term Loans made in
respect of Initial Term Loan Commitments described in clause (a) of the definition of Initial Term Loan Commitments, the Closing
Date, and, (y) in the case of theInitial
Term Loans made in respect of Initial Term Loan Commitments described in clause (b) of the definition of Initial Term Loan Commitments,
the First Incremental Agreement Effective Date, and, (z) in the case of Incremental Term
Loans, the applicable Incremental Facility Closing Date in respect of such Class) and (iii) whether the Initial Term Loans or Incremental
Term Loans, as the case may be, shall consist of ABR Loans and/or Eurodollar Loans and, if the Initial Term Loans or Incremental Term
Loans, as the case may be, are to include Eurodollar Loans, the Interest Period to be initially applicable thereto; provided that
the Notice of Borrowing for a Borrowing of Term Loans shall be revocable so long as the Borrower agrees to comply with the applicable
provisions of Section 2.11 upon any such revocation. The Administrative Agent shall promptly give each Lender written notice of each
proposed Borrowing of Initial Term Loans or Incremental Term Loans, as the case may be, of such Lender’s proportionate share thereof
and of the other matters covered by the related Notice of Borrowing.
(b) Whenever
the Borrower desires to Incur Revolving Credit Loans hereunder (other than Mandatory Borrowing or borrowings to repay Unpaid
Drawings under Letters of Credit), it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to
1:00 p.m. (New York City time) at least three Business Days’ prior written notice of each Borrowing of Revolving Credit Loans
that are to be initially Eurodollar Loans and (ii) prior to 1:00 p.m. (New York City time) on the date of such Borrowing prior
written notice of each Borrowing of Revolving Credit Loans that are to be ABR Loans. Each such Notice of Borrowing, except as
otherwise expressly provided in Section 2.10, shall be irrevocable and shall specify (i) the aggregate principal amount of the
Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii)
whether the respective Borrowing shall consist of ABR Loans and/or Eurodollar Loans, and, if Eurodollar Loans, the Interest Period
to be initially applicable thereto. The Administrative Agent shall promptly give each Lender written notice of each proposed
Borrowing of Revolving Credit Loans, of such Lender’s proportionate share thereof and of the other matters covered by the
related Notice of Borrowing.
(c) Whenever
the Borrower desires to Incur Swingline Loans hereunder, the Borrower shall give the Administrative Agent written notice of each
Borrowing of Swingline Loans prior to 3:00 p.m. (New York City time) or such later time as agreed by the Swingline Lender on the
date of such Borrowing. Each such Notice of Borrowing shall specify (i) the aggregate principal amount of the Swingline Loans to be
made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day). The Administrative Agent shall
promptly give the Swingline Lender written notice of each proposed Borrowing of Swingline Loans and of the other matters covered by
the related Notice of Borrowing.
(d)
Mandatory Borrowings shall be made upon the notice specified in Section 2.1(d)(ii) with the Borrower irrevocably agreeing,
by its Incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(e)
Borrowings of Revolving Credit Loans to reimburse Unpaid Drawings under Letters of Credit shall be made upon the terms set
forth in Section 3.3 or Section 3.4(a).
(f)
If the Borrower fails to specify a Type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as Eurodollar
Loans with an Interest Period of one (1) month. If the Borrower requests a Borrowing of Eurodollar Loans, in any such Notice of Borrowing,
but fails to specify an Interest Period (or fails to give a timely notice requesting a continuation of Eurodollar Loans), it will be deemed
to have specified an Interest Period of one (1) month.
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2.4
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Disbursement of Funds.
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(a)
No later than the later of 12:00 p.m. (New York City time) on the date specified in each Notice of Borrowing (including
Mandatory Borrowings and Borrowings to reimburse Unpaid Drawings under Letters of Credit) and two hours after written notice of such Borrowing
is delivered by the Administrative Agent to such Lender, each Lender will make available its pro rata portion, if any, of each
Borrowing requested to be made on such date in the manner provided below; provided that on the Closing Date (or, with respect to
any Incremental Facilities, on the relevant Incremental Facilities Closing Date), such funds may be made available at such earlier time
as may be agreed among the relevant Lenders, the Borrower and the Administrative Agent for the purpose of consummating the Transactions;
provided, further, that all Swingline Loans shall be made available to the Borrower in the full amount thereof by the Swingline
Lender no later than two hours after written notice of such Borrowing is delivered by the Administrative Agent to the Swingline Lender.
(b) (i)
Each Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments in
immediately available funds to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will
(except in the case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings under Letters of Credit) make available to the
Borrower by depositing to an account designated by the Borrower to the Administrative Agent in writing, the aggregate of the amounts
so made available in Dollars. Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such
Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative
Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender and the Administrative Agent has made available same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify
the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent in Dollars. The
Administrative Agent shall also be entitled to recover from such Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent
to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if
paid by such Lender, the Federal Funds Effective Rate, or (ii) if paid by the Borrower, the then-applicable rate of interest,
calculated in accordance with Section 2.8, for the respective Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount
of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.
(ii) The Swingline
Lender shall make available all amounts it is to fund to the Borrower under any Borrowing of Swingline Loans in immediately available
funds to the Borrower (as specified in the applicable Notice of Borrowing), by depositing to an account designated by the Borrower to
the Swingline Lender in writing or otherwise in such Notice of Borrowing, the aggregate of the amount so made available.
(c)
Nothing in this Section 2.4, including any payment by the Borrower, shall be deemed to relieve any Lender from its obligation
to fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default
by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill
its commitments hereunder).
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2.5
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Repayment of Loans; Evidence of Debt.
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(a)
The Borrower agrees to repay to the Administrative Agent, for the benefit of the applicable Lenders, (i) on the Initial
Term Loan Maturity Date, all then outstanding Initial Term Loans, (ii) on the relevant Incremental Term Loan Maturity Date for any Class
of Incremental Term Loans, any then outstanding Incremental Term Loans of such Class, (iii) on the Revolving Credit Maturity Date, the
then outstanding Revolving Credit Loans, (iv) on the relevant maturity date for any Class of Additional/Replacement Revolving Credit Commitments,
all then outstanding Additional/Replacement Revolving Credit Loans of such Class, (v) on the relevant maturity date for any Class of Extended
Term Loans, all then outstanding Extended Term Loans of such Class, (vi) on the relevant maturity date for any Class of Extended Revolving
Credit Commitments, all then outstanding Extended Revolving Credit Loans of such Class and (vii) on the Swingline Maturity Date, the then
outstanding Swingline Loans.
(b)
The Borrower shall repay to the Administrative Agent, in Dollars, for the ratable benefit of the Initial Term Loan Lenders,
on the last Business Day of each March, June, September and December, beginning DecemberMarch
31, 20172018
(each, an “Initial Term Loan Repayment Date”), a principal amount of the Initial Term Loans equal to (i)
the product of (x) the aggregate principal amount of Initial Term Loans outstanding immediately after the Borrowing of InitialTranche
B Term Loans on the ClosingFirst Incremental
Agreement Effective Date multiplied by (y) 0.25% (with respect to each Initial Term Loan Repayment Date prior to the Initial
Term Loan Maturity Date, as such product may be reduced by, and after giving pro forma effect to, any voluntary
and mandatory prepayments made in
accordance with Section 5 or as contemplated by Section 2.15) or (ii) the aggregate principal amount of Initial Term Loans then outstanding
(with respect to the Initial Term Loan Maturity Date) (each amount, an “Initial Term Loan Repayment Amount”).
(c)
In the event any Incremental Term Loans are made, such Incremental Term Loans shall mature and be repaid in amounts and
on dates as agreed between the Borrower and the relevant Lenders of such Incremental Term Loans in the applicable Incremental Agreement,
subject to the requirements set forth in Section 2.14. In the event that any Extended Term Loans are established, such Extended Term Loans
shall, subject to the requirements of Section 2.15, mature and be repaid by the Borrower in the amounts (each such amount, an “Extended
Term Loan Repayment Amount”) and on the dates (each an “Extended Repayment Date”) set forth in the applicable
Extension Agreement. In the event any Extended Revolving Credit Commitments are established, such Extended Revolving Credit Commitments
shall, subject to the requirements of Section 2.15, be terminated (and all Extended Revolving Credit Loans of the same Extension Series
repaid) on dates set forth in the applicable Extension Agreement.
(d)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the
Borrower to the appropriate lending office of such Lender resulting from each Loan made by such lending office of such Lender from time
to time, including the amounts of principal and interest payable and paid to such lending office of such Lender from time to time under
this Agreement.
(e) The
Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 13.6(b)(v), and a subaccount for
each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder,
whether such Loan is an Initial Term Loan, an Incremental Term Loan (and the relevant Class thereof), a Revolving Credit Loan, an
Additional/Replacement Revolving Credit Loan (and the relevant Class thereof), an Extended Term Loan (and the relevant Class
thereof), an Extended Revolving Credit Loan (and the relevant Class thereof), or a Swingline Loan, as applicable, the Type of each
Loan made 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 Borrower to each Lender or the Swingline Lender hereunder, (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower and each Lender’s share thereof and (iv) any cancellation or retirement
of Loans contemplated by Section 13.6(i).
(f) The
entries made in the Register and accounts and subaccounts maintained pursuant to paragraphs( d) and
(e) of this Section 2.5 shall, to the extent permitted by Applicable Law, be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded and, in the case of the Register, shall be conclusive absent manifest error; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such account, such Register or such subaccount, as
applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest)
the Loans made to the Borrower in accordance with the terms of this Agreement.
(g)
For the avoidance of doubt, all Loans shall be repaid, whether pursuant to this Section 2.5 or otherwise, in Dollars.
(h)
For the avoidance of doubt, the Tranche B Term Loans made on the First Incremental Agreement Effective Date (x) shall constitute
the Initial Term Loans for all purposes of this Agreement, (y) shall mature and shall become due and payable on the Initial Term Loan
Maturity Date and (z) shall be repaid in quarterly installments in accordance with Section 2.5(b).
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2.6
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Conversions and Continuations.
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(a) The
Borrower shall have the option on any Business Day, subject to Section 2.11, to convert all or a portion equal to at least the
Minimum Borrowing Amount of the outstanding principal amount of Term Loans, Revolving Credit Loans, Additional/Replacement Revolving
Credit Loans or Extended Revolving Credit Loans of one Type into a Borrowing or Borrowings of another Type and except as otherwise
provided herein the Borrower shall have the option on the last day of an Interest Period to continue the outstanding principal
amount of any Eurodollar Loans as Eurodollar Loans for an additional Interest Period; provided that (i) no partial conversion
of Eurodollar Loans shall reduce the outstanding principal amount of Eurodollar Loans made pursuant to a single Borrowing to less
than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into Eurodollar Loans if an Event of Default is in existence
on the date of the conversion and the Administrative Agent has, or the Required Lenders have, determined in its or their sole
discretion not to permit such conversion, (iii) Eurodollar Loans may not be continued as Eurodollar Loans for an additional Interest
Period if an Event of Default is in existence on the date of the proposed continuation and the Administrative Agent has, or the
Required Lenders have, determined in its or their sole discretion not to permit such continuation, and (iv) Borrowings resulting
from conversions pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2. Each such conversion or
continuation shall be effected by the Borrower giving the Administrative Agent at the Administrative Agent’s Office prior to
1:00 p.m. (New York City time) at least (i) three Business Days’, in the case of a continuation of, or conversion to,
Eurodollar Loans or (ii) the same Business Day in the case of a conversion into ABR Loans), prior written notice (each a
“Notice of Conversion or Continuation”) specifying the Loans to be so converted or continued, the Type of Loans
to be converted or continued, the requested date of the conversion or continuation, as the case may be (which shall be a Business
Day), the principal amount of Loans to be converted or continued, as the case may be, and if such Loans are to be converted into or
continued as Eurodollar Loans, the Interest Period to be initially applicable thereto. If the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made or continued as the same Type of Loan, which if a
Eurodollar Loan, shall have a one-month Interest Period. Any such automatic continuation shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar Loans. If the Borrower requests a conversion to, or
continuation of, Eurodollar Loans in any such Notice of Conversion or Continuation, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one (1) month’s duration. Notwithstanding anything to the contrary herein, a
Swingline Loan may not be converted to a Eurodollar Loan. The Administrative Agent shall give each applicable Lender notice as
promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b)
If any Event of Default is in existence at the time of any proposed continuation of any Eurodollar Loans and the Administrative
Agent has, or the Required Lenders have, determined in its or their sole discretion not to permit such continuation, Eurodollar Loans
shall be automatically converted on the last day of the current Interest Period into ABR Loans.
2.7
Pro Rata Borrowings. Each Borrowing of Initial Term Loans under this Agreement shall be granted by the Lenders pro
rata on the basis of their then-applicable Initial Term Loan Commitments. Each Borrowing of Revolving Credit Loans under this Agreement
shall be granted by the Revolving Credit Lenders pro rata on the basis of their then-applicable Revolving Credit Commitment Percentages
with respect to the applicable Class. Each Borrowing of Incremental Term Loans under this Agreement shall be granted by the Lenders of
the relevant Class thereof pro rata on the basis of their then-applicable Incremental Term Loan Commitments for the applicable
Class. Each Borrowing of Additional/Replacement Revolving Credit Loans under this Agreement shall be granted by the Lenders of the relevant
Class thereof pro rata on the basis of their then-applicable Additional/Replacement Revolving Credit Commitments for the applicable
Class. Each Borrowing of Extended Revolving Credit Loans under this Agreement shall be granted by the Lenders of the relevant Class thereof
pro rata on the basis of their then-applicable Extended Revolving Credit Commitments for the applicable Class. It is understood
that (a) no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender,
severally and not jointly, shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to fulfill its commitments hereunder, and (b) other than as expressly provided herein with respect to a Defaulting Lender,
failure by a Lender to perform any of its obligations under any of the Credit Documents shall not release any Person from performance
of its obligations under any Credit Document.
(a)
The unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether
by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin in effect from time to time plus
the ABR in effect from time to time.
(b)
The unpaid principal amount of each Eurodollar Loan shall bear interest from the date of the Borrowing thereof until maturity
thereof (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin in effect from time
to time plus the relevant Eurodollar Rate in effect from time to time.
(c)
If at any time after the occurrence of and during the continuance of an Event of Default under Section 11.1 or Section 11.5,
all or a portion of the principal amount of any Loan or any interest payable thereon or any fees or other amounts due hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest (including
post-petition interest in any proceeding under any
applicable Debtor Relief Law) at a rate
per annum that is (i) in the case of overdue principal, the rate that would
otherwise be applicable thereto
plus 2% or (ii) in the case of overdue interest, fees or other amounts due hereunder, to the extent permitted by Applicable Law,
the rate described in Section 2.8(a) plus 2% from and including the date of such non-payment to but excluding the date on which
such amount is paid in full. All such interest shall be payable on demand.
(d)
Interest on each Loan shall accrue from and including the date of any Borrowing to but excluding the date of any repayment
thereof, and shall be payable in Dollars and, except as otherwise provided below, shall be payable (i) in respect of each ABR Loan, quarterly
in arrears on the last Business Day of each March, June, September and December, (ii) in respect of each Eurodollar Loan, on the last
day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring
at three-month intervals after the first day of such Interest Period, and (iii) in respect of each Loan (except in the case of prepayments
of any ABR Revolving Credit Loans that are not made in connection with the termination or permanent reduction of the Revolving Credit
Commitments), on any prepayment date (on the amount prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity,
on demand; provided that a Loan that is repaid on the same day on which it is made shall bear interest for one day.
(e)
All computations of interest hereunder shall be made in accordance with Section 5.5.
(f)
The Administrative Agent, upon determining the interest rate for any Borrowing of Eurodollar Loans shall promptly notify
the Borrower and the relevant Lenders thereof. Each such determination shall, absent clearly demonstrable error, be final and conclusive
and binding on all parties hereto.
(g)
Except as otherwise provided herein, whenever any payment hereunder or under the other Credit Documents shall be stated
to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or commitment or letter of credit fee or commission, as the case
may be.
2.9
Interest Periods. At the time the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in
respect of the making of, or conversion into, or continuation as, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) on or prior to 1:00 p.m. (New York City time) on the third Business Day prior to the expiration of an Interest
Period applicable to a Borrowing of Eurodollar Loans, the Borrower shall have the right to elect, by giving the Administrative Agent written
notice, the Interest Period applicable to such Borrowing, which Interest Period shall be the period commencing on the date of such Borrowing
and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last Business Day) in the calendar
month that is one, two, three or six months thereafter (or, if agreed to by all relevant Lenders participating in the relevant Credit
Facility, twelve months thereafter or a period shorter than one month).
Notwithstanding anything to the contrary contained above:
(a)
the initial Interest Period for any Borrowing of Eurodollar Loans shall commence on the date of such Borrowing (including
the date of any conversion from a Borrowing of ABR Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;
(b)
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;
(c)
if any Interest Period relating to a Borrowing of Eurodollar Loans begins on the last Business Day of a calendar month or
begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of the calendar month at the end of such Interest Period;
(d)
in the case of Eurodollar Loans, interest shall accrue from and including the first day of an Interest Period to but excluding
the last day of such Interest Period; and
(e)
the Borrower shall not be entitled to elect any Interest Period in respect of any Eurodollar Loan if such Interest Period
would extend beyond the applicable Maturity Date of such Loan.
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2.10
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Increased Costs, Illegality, Etc.
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(a)
In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii)
below, any Lender, shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):
(i)
on any date for determining the Eurodollar Rate for any Interest Period that (x) deposits in the principal amounts of the
Loans comprising any Borrowing of Eurodollar Loans are not generally available in the relevant market or (y) by reason of any changes
arising on or after the Closing Date affecting the London interbank eurocurrency market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) that,
due to a Change in Law, which shall (A) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any
reserve requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any Tax (other than (1)
Taxes indemnifiable under Section 5.4, (2) Excluded Taxes or (3) Taxes described in Section 5.4(f)) on its loans, loan principal,
letters of credits, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
or (C) impose on any Lender or the London interbank eurocurrency market any other condition, cost or expense affecting this
Agreement or Eurodollar Loans made by such Lender (other than Taxes), which results in the cost to such Lender of making, converting
into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an
amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to
the foregoing shall be reduced; or
(iii)
at any time after the Closing Date, that the making or continuance of any Eurodollar Loan has become unlawful by compliance
by such Lender in good faith with any Applicable Law (or would conflict with any such Applicable Law not having the force of law even
though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after
the Closing Date that materially and adversely affects the London interbank eurocurrency market;
then,
and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall within a reasonable time
thereafter give written notice to the Borrower and the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall
no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances
giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such
time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation given by the
Borrower with respect to Eurodollar Loans that have not yet been Incurred shall be deemed rescinded by the Borrower, (y) in the case
of clause (ii) above, the Borrower shall pay to such Lender, promptly (but no later than ten Business Days) after receipt of written
demand therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its reasonable discretion shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts
owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender
shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of clause
(iii) above, the Borrower shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event,
within the time period required by Applicable Law.
(b) At
any time that any Eurodollar Loan is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent written notice thereof on the same date
that the Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then
outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected Lender to convert
each such Eurodollar Loan into an ABR Loan, if applicable; provided that if more than one Lender is affected at any time,
then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).
(c) If,
any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return
on such Lender’s or Letter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of
such Lender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender
or Letter of Credit Issuer or their respective parent could have achieved but for such Change in Law (taking into consideration such
Lender’s or Letter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy or
liquidity), then from time to time, promptly (but no later than ten Business Days) after written demand by such Lender or Letter of
Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such
additional amount or amounts as will compensate such Lender or Letter of Credit Issuer or their respective parent for such
reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such
compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or
directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each
Lender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this
Section 2.10(c), will give prompt written notice thereof to the Borrower (on its own behalf) which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not,
subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this
Section 2.10(c) upon receipt of such notice.
(d)
If the Borrower and the Administrative Agent reasonably determine in good faith that an interest rate is not ascertainable pursuant
to the provisions of the definition of "Eurodollar Rate" or "Reference Rate" and the inability to ascertain such
rate is unlikely to be temporary, the "Eurodollar Rate" and "Reference Rate" shall be an alternate rate that is reasonably
commercially practicable for the Administrative Agent to administer (as determined by the Administrative Agent in its reasonable discretion)
that is either: (i) an alternate rate established by the Administrative Agent and the Borrower that is generally accepted as the then
prevailing market convention for determining a rate of interest for syndicated leveraged loans of this type in the United States at such
time, in which case, the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate
rate of interest and such other related changes to this Agreement as may be applicable (including the making of appropriate adjustments
to such alternate rate and this Agreement (x) to preserve pricing in effect at the time of selection of such alternate rate (but for
the avoidance of doubt which would not reduce the Applicable Margin) and (y) other changes necessary to reflect the available interest
periods for such alternate rate) (the "Market Convention Rate") or (ii) if a Market Convention Rate is not available in the
reasonable determination of the Administrative Agent and the Borrower acting in good faith, an alternate rate, at the option of the Borrower,
either (x) established by the Administrative Agent and the Borrower, so long as the Lenders shall have received at least five Business
Days' prior written notice thereof (the "Notice Period"), in which case, the Administrative Agent and the Borrower shall enter
into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may
be applicable; provided that such alternate rate shall not apply to (and any such amendment shall not be effective with respect to) any
Class for which the Administrative Agent has received a written objection within the Notice Period from the Required Lenders of such
Class (with the Required Lenders of such Class determined as if such Class of Lenders were the only Class of Lenders hereunder at the
time), or (y) selected by the Borrower and the Required Lenders of any applicable Class (with the Required Lenders of such Class determined
as if such Class of Lenders were the only Class of Lenders hereunder at the time) solely with respect to such Class, in which case, the
Required Lenders of such Class and the Borrower shall, subject to 15 Business Days' prior written notice to the Administrative Agent,
enter into an amendment to this Agreement to reflect such alternate rate of interest for such Class and make such other related changes
to this Agreement as may be necessary to reflect such alternate rate applicable to such Class) (any such alternate rate so established
in accordance with the foregoing provisions of this clause (d), the "Successor Benchmark Rate"); provided that, in the case
of each of clauses (i) and (ii), any such amendment shall become effective without any further action or consent of any other party to
this Agreement, notwithstanding anything to the contrary in Section 13.1; provided, further, that until such Successor Benchmark Rate
has been determined pursuant to this paragraph, (A) any request for Borrowing, the conversion of any Borrowing to, or continuation of
any Borrowing as, a Eurodollar Borrowing shall be ineffective and (B) all outstanding Borrowings shall be converted to an ABR Borrowing.
(e)
(d) This Section 2.10 shall not operate to provide payments that are duplicative
of those required under Section 5.4.
(f)
(e) The agreements in this Section 2.10 shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(g)
(f) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer
shall be entitled to seek compensation under this Section 2.10 based on the occurrence of a Change in Law arising solely from (x) the
Dodd- Frank Wall Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection
therewith or (y) Basel III or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such
Lender or Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect
to its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to
this Section 2.10.
2.11 Compensation.
If (a) any payment of principal of a Eurodollar Loan is made by the Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Eurodollar Loan as a result of a payment or conversion pursuant to Section 2.5, 2.6, 2.10, 5.1, 5.2
or 13.7, as a result of acceleration of the maturity of the Loans pursuant to Section 11 or for any other reason, (b) any Borrowing of
Eurodollar Loans is not made as a result of a withdrawn Notice of Borrowing or failure to satisfy the conditions of Section 6 and Section
7, (c) any ABR Loan is not converted into a Eurodollar Loan as a result of a withdrawn Notice of Conversion or Continuation, (d) any
Eurodollar Loan is not continued as a Eurodollar Loan as a result of a withdrawn Notice of Conversion or Continuation or (e) any prepayment
of principal of a Eurodollar Loan is not made as a result of a withdrawn notice of prepayment pursuant to Section 5.1 or 5.2, the Borrower
shall, after receipt of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting
such amount and, absent clearly demonstrable error, the amount requested shall be final and conclusive and binding upon all parties hereto),
pay to the Administrative Agent for the account of such Lender within ten Business Days of such request any amounts required to compensate
such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to
borrow, failure to convert, failure to continue, failure to prepay, reduction or failure to reduce, including any loss, cost or expense
(excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund or maintain such Eurodollar Loan. The agreements in this Section 2.11 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.12 Change
of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(c), 3.5 or 5.4 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event; provided
that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage,
with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.12
shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Section 2.10, 3.5 or 5.4.
2.13 Notice
of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Section 2.10,
2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has knowledge (or should have had knowledge) of the occurrence
of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described in such Sections,
such Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any such amounts incurred
or accruing prior to the giving of such notice to the Borrower; provided that, if the circumstance giving rise to such claim is
retroactive, then such 180 day period referred to above shall be extended to include the period of retroactive
effect thereof.
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2.14
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Incremental Facilities.
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(a) The
Borrower may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent
request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term
loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Credit
Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one
or more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit
Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the
“Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental
Commitments”); provided that, subject to Section 1.11, at the time that any such Incremental Term Loan, Incremental
Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving pro
forma effect thereto), except as set forth in the proviso to clause (b) below, no Event of Default (or, in the case of the
Incurrence or provision of any Incremental Facility in connection with an Acquisition or similar Investment, no Event of Default
under Section 11.1 or 11.5) shall have occurred and be continuing.
(b) Each
tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving
Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such
amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum
increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), the aggregate amount of
(x) the Incremental Term Loans, Incremental Revolving Credit Commitment
Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds
thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred
under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental
Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11, after giving pro forma effect to
such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection
therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments
then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First
Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any
such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of
such Test Period, that is no greater than either (x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition or similar Investment,
no greater than the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment
(this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental
Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, without regard
to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this
2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of Incurrence of such Incremental
Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related amounts in accordance with the procedures
set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement
Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall
be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided
without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this 2.14(b) and without regard
to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended
Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance
with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided
(and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(c) (i)
The Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only by
all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis, (B)
shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than
the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause
(C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments,
funding discounts, original issue discounts, currency denomination and prepayment terms and premiums for the Incremental Term Loans as
determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing on the Closing
Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Incremental Term Loans (other
than Incremental Term Loans (x) Incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section
2.14(b) or (z) Incurred in connection with an Acquisition (clauses (x), (y) and (z), collectively, the “MFN Exceptions”)),
is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans
shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for
the Incremental Term Loans minus 0.50% (this proviso, the “MFN Protection”); provided, further,
that, with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Eurodollar Rate,
for purposes of calculating the applicable increase (if any) in the Applicable Margins for the Initial Term Loans in the immediately
preceding proviso, the Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving
pro forma effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less
the then applicable Reference Rate; and (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided
that (x) except with respect to matters contemplated by clauses (B), (C) and (D) above, any differences shall be reasonably satisfactory
to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date)
and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long
as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously
Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments
being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit
Facility being increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the
interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased
and additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase
(without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The
Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and security with the Revolving Credit
Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the
Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no
scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates
(including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts,
original issue discounts, currency denomination, prepayment terms and premiums and commitment reduction and termination terms as
determined by the Borrower and the lenders of such commitments; provided that, during the period commencing on the Closing
Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Additional/Replacement
Revolving Credit Loans (other than Additional/Replacement Revolving Credit Loans under any Additional/Replacement Revolving Credit
Commitments (x) incurred pursuant to clause (B) of Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or
(z) Incurred in connection with an Acquisition or similar Investment) is greater than the Effective Yield for the Revolving Credit
Loans by more than 0.50%, then the Applicable Margins for the Revolving Credit Loans shall be increased to the extent necessary so
that the Effective Yield for the Revolving Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving
Credit Loans minus 0.50%; (D) shall contain borrowing, repayment and termination of Commitment procedures as determined by
the Borrower and the lenders of such commitments, (E) may include provisions relating to swingline loans and/or letters of credit,
as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such
subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as
applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers
and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which
shall be specified in the applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with
respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and
(F) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except
with respect to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the
Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and
(y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent Financial
Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is
amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility (provided, further, however,
that, if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant
for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit
facility, the Previously Absent Financial Maintenance Covenant shall be automatically included in this Agreement only for the
benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(d) Each
notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency denomination
and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement
Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement
Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or
delayed), by any existing Lender (it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation
to make a portion of any Incremental Term Loan, no existing Lender with a Revolving Credit Commitment will have any obligation to provide
a portion of any Incremental Revolving Credit Commitment Increase and no existing Lender with a Revolving Credit Commitment will have
an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution,
other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional
Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to
such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment
Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an
assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely
with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline
Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional
Lender’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments
if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional
Lender.
(e) Commitments
in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments
shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender
with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant
to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Credit Documents, executed
by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative
Agent. The Incremental Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect such amendments to
this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower,
to effect the provisions of this Section (including (i) in connection with an Incremental Revolving Credit Commitment Increase, to reallocate
Revolving Credit Exposure on a pro rata basis among the relevant Revolving Credit Lenders, (ii) in connection with Classes of
Incremental Term Loans, to extend the Prepayment Premium Period for the benefit of any existing Class of Term Loans to the extent that
such Class of Incremental Term Loans shall have the benefit of such longer Prepayment Premium Period and/or (iii) to increase the Effective
Yield of the applicable Class of Term Loans to the extent necessary in order to ensure that any applicable Class of Incremental Term
Loans are “fungible” with such existing Class of Term Loans. The effectiveness of any Incremental Agreement (an “Incremental
Facility Closing Date”) and the occurrence of any Credit Event pursuant to such Incremental Agreement shall be subject to the
satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans,
Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited
by this Agreement; provided, however, that the proceeds of any Incremental Term Loans Incurred, and any Additional/Replacement
Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), shall be used in accordance with
the terms thereof.
(f) (i)
No Lender shall be obligated to provide any Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement
Revolving Credit Commitments unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity
to provide any Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments.
(ii) Upon
each increase in the Revolving Credit Commitments of any Class pursuant to this Section, each Lender with a Revolving Credit
Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to
each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each, an “Incremental Revolving
Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment
Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s
participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving pro forma effect to each such
deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in
Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment of such
Class (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate
Revolving Credit Commitments of such Class of all Lenders represented by such Lender’s Revolving Credit Commitment of such
Class. If, on the date of such increase, there are any Revolving Credit Loans of such Class outstanding, such Revolving Credit Loans
shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of
additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which
prepayment shall be accompanied by accrued interest on the Revolving Credit Loans of such Class being prepaid and any costs
incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree 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 the immediately preceding sentence.
(g) This
Section 2.14 shall supersede any provisions in Section 2.7 or 13.1 to the contrary. For the avoidance of doubt, any provisions of this
Section 2.14 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide
any Incremental Commitment without such
Lender’s consent
2.15 Extensions of Term Loans, Revolving Credit Loans and Revolving Credit Commitments and Additional/Replacement Revolving
Credit Loans and Additional/Replacement Revolving Credit Commitments.
(a) The
Borrower may at any time and from time to time request that all or a portion of each Term Loan of any Class (an “Existing
Term Loan Class”) be converted or exchanged to extend the scheduled final maturity date(s) of any payment of principal
with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so extended,
“Extended Term Loans”) and to provide for other terms consistent with this Section 2.15. Prior to entering into
any Extension Agreement with respect to any Extended Term Loans, the Borrower shall provide written notice to the Administrative
Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class, with such request
offered equally to all such Lenders of such Existing Term Loan Class) (a “Term Loan Extension Request”) setting
forth the proposed terms of the Extended Term Loans to be established, which terms shall be similar to the Term Loans of the
Existing Term Loan Class from which they are to be extended except that (w) the scheduled final maturity date shall be extended and
all or any of the scheduled amortization payments of all or a portion of any principal amount of such Extended Term Loans may be
delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any
such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the
Extension Agreement or the Incremental Agreement, as the case may be, with respect to the Existing Term Loan Class of Term Loans
from which such Extended Term Loans were extended, in each case as more particularly set forth in Section 2.15(dc)
below), (x)(A) the interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding
discounts, AHYDO Catch-Up Payments, original issue discounts and prepayment terms and premiums with respect to the Extended Term
Loans may be different than those for the Term Loans of such Existing Term Loan Class and/or (B) additional fees and/or premiums may
be payable to the Lenders providing such Extended Term Loans in addition to any of the items contemplated by the preceding clause
(A), in each case, to the extent provided in the applicable Extension Agreement, (y) subject to the provisions set forth in Sections
5.1 and 5.2, the Extended Term Loans may have optional prepayment terms (including call protection and prepayment terms and
premiums) and mandatory prepayment terms as may be agreed between the Borrower and the Lenders thereof and (z) the Extension
Agreement may provide for other covenants and terms that apply to any period after the Latest Maturity Date. No Lender shall have
any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to
any Term Loan Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans
from the Existing Term Loan Class of Term Loans from which they were extended.
(b) The
Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, the
Extended Revolving Credit Commitments of any Class and/or any Additional/Replacement Revolving Credit Commitments (and, in each
case, including any previously extended Revolving Credit Commitments and/or Additional/Replacement Revolving Credit Commitments),
existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving
credit loans under any such facility, “Existing Revolving Credit Loans”; each Existing Revolving Credit
Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit
Class”) be converted or exchanged to extend the termination date thereof and the scheduled maturity date(s) of any payment
of principal with respect to all or a portion of any principal amount of Existing Revolving Credit Loans related to such Existing
Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended
Revolving Credit Commitments” and any related revolving credit loans, “Extended Revolving Credit
Loans”) and to provide for other terms consistent with this Section 2.15. Prior to entering into any Extension Agreement
with respect to any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who
shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments, with
such request offered equally to all Lenders of such Class) (a “Revolving Credit Extension Request”) setting forth
the proposed terms of the Extended Revolving Credit Commitments to be established thereunder, which terms shall be similar to those
applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing
Revolving Credit Commitment Class”) except that (w) all or any of the final maturity dates of such Extended Revolving
Credit Commitments may be delayed to later dates than the final maturity dates of the Existing Revolving Credit Commitments of the
Specified Existing Revolving Credit Commitment Class, (x)(A) the interest rates, interest margins, rate floors, upfront fees,
funding discounts, AHYDO Catch-Up Payments, original issue discounts and prepayment terms and premiums with respect to the Extended
Revolving Credit Commitments may be different than those for the Existing Revolving Credit Commitments of the Specified Existing
Revolving Credit Commitment Class and/or (B) additional fees and/or premiums may be payable to the Lenders providing such Extended
Revolving Credit Commitments in addition to or in lieu of any of the items contemplated by the preceding clause (A) and (y)(1) the
undrawn revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be different than those
for the Specified Existing Revolving Credit Commitment Class and (2) the Extension Agreement may provide for other covenants and
terms that apply to any period after the Latest Maturity Date; provided that, notwithstanding anything to the contrary in
this Section 2.15, Section 5.2(e) or otherwise, (I) the borrowing and repayment (other than in connection with a permanent repayment
and termination of commitments) of the Extended Revolving Credit Loans under any Extended Revolving Credit Commitments shall be made
on a pro rata basis with any borrowings and repayments of the Existing Revolving Credit Loans of the Specified Existing
Revolving Credit Commitment Class (the mechanics for which may be implemented through the applicable Extension Agreement and may
include technical changes related to the borrowing and repayment procedures of the Specified Existing Revolving Credit Commitment
Class), (II) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be
governed by the assignment and participation provisions set forth in Section 13.6 and (III) subject to the applicable limitations
set forth in Section 4.2 and Section 5.2(e)(ii), permanent repayments of Extended Revolving Credit Loans (and corresponding
permanent reduction in the related Extended Revolving Credit Commitments) shall be permitted as may be agreed between the Borrower
and the Lenders thereof. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit
Commitments of any Existing Revolving Credit Class converted or exchanged into Extended Revolving Credit Loans or Extended Revolving
Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall
constitute a separate Class of revolving credit commitments from Existing Revolving Credit Commitments of the Specified Existing
Revolving Credit Commitment Class and from any other Existing Revolving Credit Commitments (together with any other Extended
Revolving Credit Commitments so established on such date).
(c)
The Borrower shall provide the applicable Extension Request to the Administrative Agent at least five (5) Business Days
(or such shorter period as the Administrative Agent may determine in its reasonable discretion) prior to the date on which Lenders under
the Existing Class are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the
Administrative Agent, in each case acting reasonably, to accomplish the purpose of this Section 2.15. The Borrower may, at its election,
specify as a condition to consummating any Extension Agreement that a minimum amount (to be determined and specified in the relevant Extension
Request in the Borrower’s sole discretion and as may be waived by the Borrower) of Term Loans and/or Revolving Credit Commitments
(as applicable) of any or all applicable Classes be tendered. Any Lender (an “Extending Lender”) wishing to have all
or a portion of its Term Loans, Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments (or any earlier Extended
Revolving Credit Commitments) of an Existing Class subject to such Extension Request converted or exchanged into Extended Loans/Commitments
shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension
Request of the amount of its Term Loans, Revolving Credit Commitments and/or Additional/Replacement Revolving Credit Commitments (and/or
any earlier Extended Revolving Credit Commitments) which it has elected to convert or exchange into Extended Loans/Commitments (subject
to any minimum denomination requirements imposed by the Administrative Agent). In the event that the aggregate amount of Term Loans, Revolving
Credit Commitments and Additional/Replacement Revolving Credit Commitments (and any earlier extended Extended Revolving Credit Commitments)
subject to Extension Elections exceeds the amount of Extended Loans/Commitments requested pursuant to the Extension Request, Term Loans,
Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments or earlier extended Extended Revolving Credit Commitments,
as applicable, subject to Extension Elections shall be converted to or exchanged to Extended Loans/Commitments on a pro rata basis (subject
to such rounding requirements as may be established by the Administrative Agent) based on the amount of Term Loans, Revolving Credit Commitments,
Additional/Replacement Revolving Credit Commitments and earlier extended Extended Revolving Credit Commitments included in each such Extension
Election or as may be otherwise agreed to in the applicable Extension Agreement. Notwithstanding the conversion of any Existing Revolving
Credit Commitment into an Extended Revolving Credit Commitment, unless expressly agreed by the holders of each affected Existing Revolving
Credit Commitment of the Specified Existing Revolving Credit Commitment Class, such Extended Revolving Credit Commitment shall not be
treated more favorably than all Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class for
purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(d) and Letters of Credit under
Section 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the last day for issuing
Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be continued (pursuant
to mechanics to be specified in the applicable Extension Amendment) so long as the Swingline Lender and/or each Letter of Credit Issuer
have consented to such extensions (it being understood that no consent of any other Lender shall be required in connection with any such
extension).
(d) Extended
Loans/Commitments shall be established pursuant to an amendment (an “Extension Agreement”) to this Agreement
(which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.15(d) and notwithstanding anything
to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect
to the Extended Loans/Commitments established thereby) executed by the Credit Parties, the Administrative Agent and the Extending
Lenders. In addition to any terms and changes required or permitted by Section 2.15(b), each Extension Agreement in respect of
Extended Term Loans shall amend the scheduled amortization payments pursuant to Section 2.5 or the applicable Incremental Agreement
or Extension Agreement with respect to the Existing Class of Term Loans from which the Extended Term Loans were exchanged to reduce
each scheduled Repayment Amount for the Existing Class in the same proportion as the amount of Term Loans of the Existing Class is
to be reduced pursuant to such Extension Agreement (it being understood that the amount of any Repayment Amount payable with respect
to any individual Term Loan of such Existing Class that is not an Extended Term Loan shall not be reduced as a result thereof). In
connection with any Extension Agreement, the Borrower shall deliver an opinion of counsel reasonably acceptable to the
Administrative Agent and addressed to the Administrative Agent and the applicable Extending Lenders (i) as to the enforceability of
such Extension Agreement, this Agreement as amended thereby, and such of the other Credit Documents (if any) as may be amended
thereby (in the case of such other Credit Documents as contemplated by the immediately preceding sentence) and covering customary
matters and (ii) to the effect that such Extension Agreement, including the Extended Loans/Commitments provided for therein, does
not breach or result in a default under the provisions of Section 13.1 of this Agreement.
(e) Notwithstanding
anything to the contrary contained in this Agreement, (A) on any date on which any Existing Term Loan Class or Class of Existing Revolving
Credit Commitments is converted or exchanged to extend the related scheduled maturity date(s) in accordance with paragraph (a) above
(an “Extension Date”), (I) in the case of the existing Term Loans of each Extending Lender, the aggregate principal
amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans
so converted or exchanged by such Lender on such date, and the Extended Term Loans shall be established as a separate Class of Term Loans
(together with any other Extended Term Loans so established on such date), and (II) in the case of the Existing Revolving Credit Commitments
of each Extending Lender under any Specified Existing Revolving Credit Commitment Class, the aggregate principal amount of such Existing
Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Revolving Credit
Commitments so converted or exchanged by such Lender on such date (or by any greater amount as may be agreed by the Borrower and such
Lender), and such Extended Revolving Credit Commitments shall be established as a separate Class of revolving credit commitments from
the Specified Existing Revolving Credit Commitment Class and from any other Existing Revolving Credit Commitments (together with any
other Extended Revolving Credit Commitments so established on such date) and (B) if, on any Extension Date, any Existing Revolving Credit
Loans of any Extending Lender are outstanding under the Specified Existing Revolving Credit Commitment Class, such Existing Revolving
Credit Loans (and any related participations) shall be deemed to be converted or exchanged to Extended Revolving Credit Loans (and related
participations) of the applicable Class in the same proportion as such Extending Lender’s Specified Existing Revolving Credit Commitments
to Extended Revolving Credit Commitments of such Class.
(f) In the event that the Administrative Agent determines in its sole discretion that the allocation of Extended Term Loans
of a given Extension Series or the Extended Revolving Credit Commitments of a given Extension Series, in each case to a given Lender was
incorrectly determined as a result of manifest administrative error in the receipt and processing of an Extension Election timely submitted
by such Lender in accordance with the procedures set forth in the applicable Extension Agreement, then the Administrative Agent, the Borrower
and such affected Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter
into an amendment to this Agreement and the other Credit Documents (each, a “Corrective Extension Agreement”) within
15 days following the effective date of such Extension Agreement, as the case may be, which Corrective Extension Agreement shall (i) provide
for the conversion or exchange and extension of Term Loans under the Existing Term Loan Class or Existing Revolving Credit Commitments
(and related Revolving Credit Exposure), as the case may be, in such amount as is required to cause such Lender to hold Extended Term
Loans or Extended Revolving Credit Commitments (and related revolving credit exposure) of the applicable Extension Series into which such
other Term Loans or commitments were initially converted or exchanged, as the case may be, in the amount such Lender would have held had
such administrative error not occurred and had such Lender received the minimum allocation of the applicable Loans or Commitments to which
it was entitled under the terms of such Extension Agreement, in the absence of such error, (ii) be subject to the satisfaction of such
conditions as the Administrative Agent, the Borrower and such Lender may agree (including conditions of the type required to be satisfied
for the effectiveness of an Extension Agreement described in Section 2.15(d)), and (iii) effect such other amendments of the type (with
appropriate reference and nomenclature changes) described in the penultimate
sentence of Section 2.15(d).
(g) No
conversion or exchange of Loans or Commitments pursuant to any Extension Agreement in accordance with this Section 2.15 shall constitute
a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(h) This
Section 2.15 shall supersede any provisions in Section 2.4 or Section 13.1 to the contrary. For the avoidance of doubt, any of the provisions
of this Section 2.15 may be amended with the consent of the Required Lenders; provided that no such amendment shall require any
Lender to provide any Extended Loans/Commitments without such Lender’s consent.
2.16 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 the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the
Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders
or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any
amendment or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring the consent
of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require
the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the
consent of such Lender;
(c) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i)
all or any part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will,
subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender)
among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided
that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such
Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any
payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative
Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting
Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting
Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders,
whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days following
notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial reallocation
pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving
pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8
for so long as such Letter of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting
Lender’s Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c), the Borrower shall not be required to pay
any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure
during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, (iv) if the Letter of Credit Exposure
of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c), then the fees payable to the Lenders
pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Credit Commitment Percentages
and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting
Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated,
or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements
of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all
fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter
of Credit Issuer until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(d) (i)
the Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase
the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is
reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by
the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with
the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer; and
(ii) the Swingline
Lender will be not required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would
result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non- Defaulting
Lenders or a combination thereof in accordance with the requirements of Section 2.16(c) above.
(e) If
the Borrower, the Administrative Agent, the Swingline Lender and each applicable Letter of Credit Issuer agree in writing in their
discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent
will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set
forth therein, such Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Credit Loans of the
other Revolving Credit Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause such
outstanding Revolving Credit Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro
rata basis by the Revolving Credit Lenders (including such Lender) in accordance with their applicable percentages, whereupon
such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be
promptly returned to the Borrower and any Letter of Credit Exposure and Swingline Exposure of such Lender reallocated pursuant to
the requirements of Section 2.16(c) shall be reallocated back to such Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting
Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such
Lender’s having been a Defaulting Lender; and
(f) Any
payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise, and including any amounts made available to the Administrative
Agent by that Defaulting Lender pursuant to Section 13.8), shall be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder;
second, in the case of a Revolving Credit Lender, to the payment on a pro rata basis of any amounts owing by that Defaulting
Lender to the Letter of Credit Issuer and the Swingline Lender hereunder; third, as the Borrower may request (so long as no Default
or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof
as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent
and the Borrower, to be held in a non-interest bearing deposit account and released pro rata in order to (x) satisfy such Defaulting
Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize, in accordance
with Section 3.8, the Letter of Credit Issuer’s potential future fronting exposure with respect to such Defaulting Lender with
respect to future Letters of Credit issued under this Agreement; fifth, to the payment of any amounts owing to the Lenders, the
Letter of Credit Issuer or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender,
such Letter of Credit Issuer or such Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach
of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts
owing to the Borrower or any of its Restricted Subsidiaries pursuant to any Secured Hedging Agreement with such Defaulting Lender as
certified by an Authorized Officer of the Borrower to the Administrative Agent (with a copy to the Defaulting Lender) prior to such date
of payment; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as
a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of
that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that, if such payment is a payment of the principal amount of any Loans
or a payment of any Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to,
the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.16(f).
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall be deemed paid to and redirected by that Defaulting Lender,
and each Lender irrevocably consents hereto.
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2.17
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Term Loan Exchange Notes.
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(a) The
Borrower may by written notice to the Administrative Agent elect to offer (each a “Permitted Debt Exchange
Offer”) to issue to Lenders holding Term Loans under this Agreement first priority senior secured notes and/or junior lien
secured notes and/or unsecured notes (the “Term Loan Exchange Notes”) in exchange for the Term Loans (each such
exchange, a “Permitted Debt Exchange”); provided that such Term Loan Exchange Notes may not be in an
aggregate principal amount greater than the Term Loans being exchanged plus unpaid accrued interest, fees and premiums (including
tender premiums) (if any) thereon, defeasance costs, underwriting discounts and fees, commissions and expenses (including OID,
closing payments, upfront fees or similar fees) in connection with the issuance of the Term Loan Exchange Notes. Each such notice
shall specify the date (each, a “Term Loan Exchange Effective Date”) on which the Borrower proposes that the Term
Loan Exchange Notes shall be issued, which shall be a date not less than fifteen days after the date on which such notice is
delivered to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent); provided that:
(w) the Weighted Average Life to Maturity of such Term Loan Exchange Notes shall not be shorter than the then remaining Weighted
Average Life to Maturity of the Term Loans being exchanged (it being understood that acceleration or mandatory repayment,
prepayment, redemption or repurchase of such Term Loan Exchange Notes upon the occurrence of an event of default, a change in
control, an event of loss or an asset disposition shall not be deemed to constitute a change in the stated final maturity thereof);
(x) if secured, such Term Loan Exchange Notes shall rank equal to or junior in right of payment and of security with the Loans and
Commitments being exchanged hereunder; (y) all other
terms and conditions (other than interest rates (including through fixed interest rates), interest rate margins, rate floors, fees,
maturity, funding discounts, original issue discounts and redemption or prepayment terms and premiums) applicable to such Term Loan
Exchange Notes shall reflect market terms and conditions at the time of incurrence or issuance (as determined in good faith by the
Borrower); provided that the Term Loan Exchange Notes may have the benefit of any Previously Absent Financial Maintenance
Covenant if the Administrative Agent has been given prompt written notice thereof and this Agreement shall have been amended to
include such Previously Absent Financial Maintenance Covenant; and (z) the obligations in respect of the Term Loan Exchange Notes
(A) shall not be secured by Liens on any asset of Holdings, the Borrower and the Restricted Subsidiaries other than assets
constituting Collateral, (B) if such Term Loan Exchange Notes are secured, all security therefor shall be granted pursuant to
documentation that is not more restrictive than the Security Documents in any material respect taken as a whole (as determined by
the Borrower) and the representative for such Additional Term Notes shall enter into a Customary Intercreditor Agreement (it being
understood that junior Liens are not required to be equal to other junior Liens, and that Indebtedness secured by junior Liens may
be secured by Liens that are equal to, or junior in priority to, other Liens that are junior to the Liens securing the Obligations),
or (C) shall not be incurred or Guaranteed by any Restricted Subsidiary unless such Restricted Subsidiary is a Credit Party which
shall have previously or substantially concurrently Guaranteed or borrowed such Term Loans being exchanged.
(b) The
Borrower shall offer to issue Term Loan Exchange Notes in exchange for the Class of Term Loans to all Lenders holding such Class of
Term Loans (other than any Lender that, if requested by the Borrower, is unable to certify that it is (i) a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act), (ii) an institutional “accredited
investor” (as defined in Rule 501 under the Securities Act) or (iii) not a “U.S. person” (as defined in Rule 902
under the Securities Act) on a pro rata basis, and such Lenders may choose to accept or decline to receive such Term Loan Exchange
Notes in their sole discretion. Any such Term Loans exchanged for Term Loan Exchange Notes shall be automatically and immediately,
without further action by any Person, cancelled on the Term Loan Exchange Effective Date for all purposes of this Agreement (and, if
requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof
pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the Permitted Debt
Exchange to the Borrower for immediate cancellation), and accrued and unpaid interest on such Term Loans shall be paid to the
exchanging Lenders on the Term Loan Exchange Effective Date, or, if agreed to by the Borrower and the Administrative Agent, the next
scheduled Interest Payment Date with respect to such Term Loans (with such interest accruing until the date of consummation of such
Permitted Debt Exchange).
(c) If the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of a given Class tendered by
Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term
Loans which exceeds the principal amount thereof of the applicable Class actually held by it) shall exceed the maximum aggregate principal
amount of Term Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower
shall exchange Term Loans under the relevant Class tendered by such Lenders ratably up to such maximum based on the respective principal
amounts so tendered, or, if such Permitted Debt Exchange Offer shall have been made with respect to multiple Classes without specifying
a maximum aggregate principal amount offered to be exchanged for each Class, and the aggregate principal amount of all Term Loans (calculated
on the face amount thereof) of all Classes tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender
being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof actually held by it) shall exceed
the maximum aggregate principal amount of Term Loans of all relevant Classes offered to be exchanged by the Borrower pursuant to such
Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans across all Classes subject to such Permitted Debt Exchange
Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered.
(d) With
respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.17, unless waived by the Borrower, such
Permitted Debt Exchange Offer shall be made for not less than $50,000,000 in aggregate principal amount of Term Loans; provided
that subject to the foregoing the Borrower may at its election specify (A) as a condition (a “Minimum Tender
Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the
relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable Classes be
tendered and/or (B) as a condition (a “Maximum Tender Condition”) to consummating any such Permitted Debt
Exchange that no more than a maximum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the
Borrower’s discretion) of Term Loans of any or all applicable Classes will be accepted for exchange. The Administrative Agent
and the Lenders hereby acknowledge and agree that this Section 2.17 shall supersede any provisions of Section 2.5, Section V and
Section 13.1 to the contrary, waive the requirements of any other provision of this Agreement or any other Credit Document that may
otherwise prohibit the incurrence of any Indebtedness expressly provided for by this Section 2.17 and hereby agree not to assert any
Default or Event of Default in connection with the implementation of any such Permitted Debt Exchange or any other transaction
contemplated by this Section 2.17.
(e) In connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least five Business
Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the
Administrative Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes
of this Section 2.17; provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant
Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five Business Days
following the date on which the Permitted Debt Exchange Offer is made. The Borrower shall provide the final results of such Permitted
Debt Exchange to the Administrative Agent no later than one Business Day prior to the proposed date of effectiveness for such Permitted
Debt Exchange and the Administrative Agent shall be entitled to conclusively rely on such results.
(f) The
Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection
with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent nor any Lender assumes any
responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted Debt Exchange and (y)
each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to
which such Lender may be subject under the Exchange Act.
SECTION
3. Letters of Credit.
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3.1
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Issuance of Letters of Credit.
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(a) Subject
to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Closing Date and prior to the
date that is 15 days prior to the Revolving Credit Maturity Date, each Letter of Credit Issuer agrees to issue (or cause its Affiliates
or other financial institution with which the Letter of Credit Issuer shall have entered into an agreement regarding the issuance of
letters of credit hereunder, to issue on its behalf), upon the request of and for the account of the Borrower or any Restricted Subsidiary,
letters of credit (each, a “Letter of Credit”) in such form as may be approved by such Letter of Credit Issuer in
its reasonable discretion; provided that the Borrower shall be a co-applicant, and be jointly and severally liable, with respect
to each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding
the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Obligations at
such time, would exceed the Letter of Credit Sub-Commitment then in effect, (ii) no Letter of Credit shall be issued the Stated
Amount of which, when added to the Letter of Credit Obligations and the Revolving Credit Loans and Swingline Loans outstanding at
such time, would exceed the Total Revolving Credit Commitment then in effect, (iii) no Letter of Credit shall be required to be
issued by a Letter of Credit Issuer the Stated Amount of which, when added to such Letter of Credit Issuer’s Revolving Credit
Exposure (whether held directly or through its Affiliates), would exceed the Revolving Credit Commitment of such Letter of Credit
Issuer (or its Affiliates), (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one
year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of
Credit Issuer or as provided under Section 3.2(e), and (y) the Letter of Credit Maturity Date, (v) each Letter of Credit shall be
denominated in Dollars, (vi) no Letter of Credit shall be issued if it would be illegal under any Applicable Law for the beneficiary
of the Letter of Credit to have a Letter of Credit issued in its favor, (vii) no Letter of Credit shall be issued after the
applicable Letter of Credit Issuer has received a written notice from the Borrower or the Administrative Agent stating that a
Default or an Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a
written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of
such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no
longer continuing, (viii) no Letter of Credit shall be issued by the applicable Letter of Credit Issuer if such issuance would cause
the Letter of Credit Obligations of such Letter of Credit Issuer to exceed the Letter of Credit Sub-Commitment Obligation of such
Letter of Credit Issuer, (ix) UBS AG, Stamford Branch shall only be required to issue standby letters of credit and (x) in no event
shall SunTrust Bank be required to issue commercial or trade letters of credit.
(c) In
connection with the establishment of any Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit
Commitments and subject to the availability of unused Commitments with respect to such newly established Class and the satisfaction
of the Conditions set forth in Section 7, the Borrower may, with the written consent of the Letter of Credit Issuer, designate any
outstanding Letter of Credit to be a Letter of Credit issued pursuant to such Class of Extended Revolving Credit Commitments or
Additional/Replacement Revolving Credit Commitments, as applicable. Upon such designation such Letter of Credit shall no longer be
deemed to be issued and outstanding under such prior Class and shall instead be deemed to be issued and outstanding under such newly
established Class of Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments, as
applicable.
(d) On
the Closing Date, without further action by any party hereto (including the delivery of a Letter of Credit Request or any consent
of, or confirmation by or to, the Administrative Agent), subject to the terms of this Section 3, (i) each Existing Letter of Credit
set forth on Schedule 1.1(b) hereto issued by a Letter of Credit Issuer hereunder shall become a Letter of Credit outstanding under
this Agreement, shall be deemed to be a Letter of Credit issued under this Agreement and shall be subject to the terms and
conditions hereof (including Section 4.1) as if each such Letter of Credit was issued by the applicable Letter of Credit Issuer
pursuant to this Agreement and (ii) each Letter of Credit Issuer that has issued an Existing Letter of Credit shall be deemed to
have granted each Letter of Credit Participant in respect thereof and each Letter of Credit Participant in respect thereof shall be
deemed to have acquired from such Letter of Credit Issuer, on the terms and conditions of Section 3.3 hereof, for such Letter of
Credit Participant’s own account and risk, an undivided participation interest in such Letter of Credit Issuer’s
obligations and rights under each such Existing Letter of Credit equal to such Letter of Credit Participant’s Revolving Credit
Commitment Percentage, as applicable, of (A) the outstanding amount available to be drawn under such Existing Letter of Credit and
(B) the aggregate amount of any outstanding reimbursement obligations in respect thereof.
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3.2
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Letter of Credit Requests.
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(a) Whenever the Borrower (or the Borrower on behalf of any Restricted Subsidiary) desires that a Letter of Credit be issued
(or amended, renewed or extended), it shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request by
no later than 1:00 p.m. (New York City time) (i) at least three (or such lesser number as may be agreed upon by the Administrative Agent
and the Letter of Credit Issuer) Business Days prior to the proposed date of issuance, amendment, renewal or extension for any Letter
of Credit for the account of the Borrower or any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall have also
signed the applicable Letter of Credit Request), (ii) at least five (or such lesser number as may be agreed upon by the Administrative
Agent and the Letter of Credit Issuer) Business Days prior to the proposed date of issuance, amendment, renewal or extension for any Letter
of Credit for the account of any Restricted Subsidiary that is a Domestic Subsidiary that is not a Credit Party and (iii) at least ten
(or such lesser number as may be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days prior to the date
of issuance, amendment, renewal or extension for any Letter of Credit for the account of any Foreign Restricted Subsidiary. Each Letter
of Credit Request shall be executed by the Borrower and sent by facsimile, by United States mail, by overnight courier, by electronic
transmission using the system provided by the Letter of Credit Issuer, by personal delivery or by any other means acceptable to the Letter
of Credit Issuer.
(b) In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
Stated Amount thereof; (C) the expiry date thereof (which shall be not later than the earlier of (x) one year after the date of
issuance thereof, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of Credit Issuer or as provided
under Section 3.2(e), and (y) the Letter of Credit Maturity Date); (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder and (G) such other matters as the Letter of Credit Issuer may
reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request
shall specify: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit Issuer may reasonably require.
(c) Promptly
after receipt of any Letter of Credit Request, the Letter of Credit Issuer will confirm with the Administrative Agent in writing
that the Administrative Agent has received a copy of such Letter of Credit Request from the Borrower and, if not, the Letter of
Credit Issuer will provide the Administrative Agent with a copy thereof. Unless the Letter of Credit Issuer has received written
notice from the Required Revolving Credit Lenders, the Administrative Agent, the Borrower or any other Credit Party at least two
Business Days prior to the requested date of issuance or amendment of the Letter of Credit, that one or more applicable conditions
contained in Section 7 shall not then be satisfied, then, subject to the terms and conditions hereof, the Letter of Credit Issuer
shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Restricted Subsidiary) or
enter into the applicable amendment, as the case may be, in each case in accordance with the terms hereof.
(d) The
making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower that the Letter of Credit
may be issued in accordance with, and will not violate the requirements of, Section 3.1(b).
(e) If
the Borrower so requests in any applicable Letter of Credit Request, the Letter of Credit Issuer may agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that
any such Auto-Extension Letter of Credit must permit the Letter of Credit Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless otherwise directed by the Letter of Credit Issuer, the Borrower shall not be
required to make a specific request to the Letter of Credit Issuer for any such extension. Once an Auto-Extension Letter of Credit
has been issued, the Lenders shall be deemed to have authorized (but may not require) the Letter of Credit Issuer to permit the
extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Maturity Date; provided, however,
that the Letter of Credit Issuer shall not permit any such extension if (A) the Letter of Credit Issuer has determined that it would
not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under
the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received written notice on or before
the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required
Revolving Credit Lenders have elected not to permit such extension or (2) from the Administrative Agent, the Required Revolving
Credit Lenders or the Borrower that one or more of the applicable conditions specified in Section 7 are not then satisfied, and in
each such case directing the Letter of Credit Issuer not to permit such extension.
(f) Promptly
after its delivery of any Letter of Credit or any amendment, renewal or extension to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the Letter of Credit Issuer will notify the Administrative Agent of such delivery, amendment,
renewal or extension and will also deliver to the Borrower a true and complete copy of such Letter of Credit or amendment, renewal or
extension. On the last Business Day of each March, June, September and December, the Letter of Credit Issuer shall provide the Administrative
Agent a list of all Letters of Credit issued by it that are outstanding at such time.
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3.3
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Letter of Credit Participations.
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(a) Immediately
upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold
and transferred to each other Revolving Credit Lender (each such Revolving Credit Lender, in its capacity under this Section 3.3(a),
a “Letter of Credit Participant”), and each such Letter of Credit Participant shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest
and participation (each, a “Letter of Credit Participation”), to the extent of such Letter of Credit
Participant’s Revolving Credit Commitment Percentage, in such Letter of Credit, each substitute letter of credit, each drawing
made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the
Letter of Credit Participants as provided in Section 4.1(c) and the Letter of Credit Participants shall have no right to receive any
portion of any fees paid to the Administrative Agent for the account of the Letter of Credit Issuer in respect of each Letter of
Credit issued hereunder).
(b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer shall have no obligation relative
to the Letter of Credit Participants other than to confirm to the Administrative Agent that any documents required to be delivered under
such Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit.
Any action taken or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit issued by it,
if taken or omitted in the absence of gross negligence or willful misconduct, as determined in a final non-appealable judgment of a court
of competent jurisdiction, shall not create for the Letter of Credit Issuer any resulting liability.
(c) Whenever
the Administrative Agent receives a payment in respect of an unpaid reimbursement obligation for the account of the Letter of Credit
Issuer from the Borrower, the Administrative Agent shall promptly pay to each Letter of Credit Participant that has paid its Revolving
Credit Commitment Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount equal to such
Letter of Credit Participant’s share (based upon the proportionate aggregate amount originally funded or deposited by such Letter
of Credit Participant to the aggregate amount funded or deposited by all Letter of Credit Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the respective Letter of Credit Participations; provided
that the amount paid to any Letter of Credit Participant shall not exceed the amount funded or deposited by such Letter of Credit
Participant.
(d) The obligations of the Letter of Credit Participants to purchase Letter of Credit Participations from the Letter of Credit
Issuer and make payments to the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit
shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including under any of the following
circumstances:
(i) any
lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such beneficiary or transferee may be
acting), the Administrative Agent, the Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement,
any Letter of Credit, the transactions contemplated hereby or any unrelated transactions (including any underlying transaction between
the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any
draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the
surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents;
(v) the
occurrence of any Default or Event of Default; or
(vi) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Credit Party or Restricted Subsidiary.
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3.4
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Agreement to Repay Letter of Credit Drawings.
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(a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer in Dollars with respect to any drawing under any Letter of Credit,
by making payment, whether with its own funds, with the proceeds of Revolving Credit Loans or any other source, to the
Administrative Agent for the account of the Letter of Credit Issuer in immediately available funds, for any payment or disbursement
made by the Letter of Credit Issuer under any Letter of Credit issued by it (with respect to each such amount so paid under a Letter
of Credit until reimbursed, a “Unpaid Drawing” (i) within one Business Day of the date of such payment or
disbursement, if the Letter of Credit Issuer provides notice to the Borrower of such payment or disbursement prior to 11:00 a.m.
(New York City time) on such next succeeding Business Day after the date of such payment or disbursement or (ii) if such notice is
received after such time, on the next Business Day following the date of receipt of such notice (such required date for
reimbursement under clause (i) or (ii), as applicable (the “Required Reimbursement Date”), with interest on the
amount so paid or disbursed by such Letter of Credit Issuer, from and including the date of such payment or disbursement to but
excluding the Required Reimbursement Date, at the per annum rate for each day equal to the rate described in Section 2.8(a); provided
that, notwithstanding anything contained in this Agreement to the contrary, with respect to any Letter of Credit, (i) unless the
Borrower shall have notified the Administrative Agent and the Letter of Credit Issuer prior to 11:00 a.m. (New York City time) on
the Required Reimbursement Date that the Borrower intends to reimburse the Letter of Credit Issuer for the amount of such drawing
with funds other than the proceeds of Revolving Credit Loans, the Borrower shall be deemed to have given a Notice of Borrowing
requesting that the Lenders with Revolving Credit Commitments make Revolving Credit Loans (which shall be ABR Loans) on the Required
Reimbursement Date in an amount equal to the amount of such drawing, and (ii) the Administrative Agent shall promptly notify each
Letter of Credit Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each
Letter of Credit Participant shall be irrevocably obligated to make a Revolving Credit Loan to the Borrower in the manner deemed to
have been requested in the amount of its Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New
York City time) on such Required Reimbursement Date by making the amount of such Revolving Credit Loan available to the
Administrative Agent. Such Revolving Credit Loans made in respect of such Unpaid Drawing on such Required Reimbursement Date shall
be made without regard to the Minimum Borrowing Amount and without regard to the satisfaction of the conditions set forth in Section
7. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the Letter
of Credit Issuer for the related Unpaid Drawing. If and to the extent such Letter of Credit Participant shall not have so made its
Revolving Credit Commitment Percentage of the amount of such payment available to the Administrative Agent for the account of the
Letter of Credit Issuer, or that in the sole judgment of the Letter of Credit Issuer, such Revolving Credit Loan cannot for any
reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any Debtor
Relief Law in respect of the Borrower), each Letter of Credit Participant hereby agrees that its participation in such Unpaid
Drawing shall remain outstanding in lieu of funding its portion of such Revolving Credit Loan and such Letter of Credit Participant
agrees to pay to the Administrative Agent for the account of the Letter of Credit Issuer, forthwith on demand, such amount, together
with interest thereon for each day from such date until the date such amount is paid to the Administrative Agent for the account of
the Letter of Credit Issuer at a rate per annum equal to the Overnight Rate from time to time then in effect, plus any
administrative, processing or similar fees customarily charged by the Letter of Credit Issuer in connection with the foregoing. The
failure of any Letter of Credit Participant to make available to the Administrative Agent for the account of the Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of Credit shall not relieve any other Letter of
Credit Participant of its obligation hereunder to make available to the Administrative Agent for the account of the Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit on the date required, as specified
above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make
available to the Administrative Agent such other Letter of Credit Participant’s Revolving Credit Commitment Percentage of any
such payment.
(b) The obligations of the Borrower under this Section 3.4 to reimburse the Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any
set-off, counterclaim or defense to payment that the Borrower or any other Person may have or have had against the Letter of Credit Issuer,
the Administrative Agent or any Lender (including in its capacity as a Letter of Credit Participant), including any defense based upon
the failure of any drawing under a Letter of Credit (each, a “Drawing”) to conform to the terms of such Letter of Credit
or any non-application or misapplication by the beneficiary of the proceeds of such Drawing; provided that the Borrower shall not
be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of
Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of
Credit Issuer as determined in the final, non-appealable judgment of a court of competent jurisdiction.
3.5 Increased
Costs. If a Change in Law shall either (a) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against letters of credit issued by the Letter of Credit Issuer, or any Letter of Credit
Participant’s Letter of Credit Participation therein or (b) impose on the Letter of Credit Issuer or any Letter of Credit
Participant any other conditions affecting its obligations under this Agreement in respect of Letters of Credit or Letter of Credit
Participations therein or any Letter of Credit or such Letter of Credit Participant’s Letter of Credit Participation therein,
and the result of any of the foregoing is to increase the cost to the Letter of Credit Issuer or such Letter of Credit Participant
of issuing, maintaining or participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by the
Letter of Credit Issuer or such Letter of Credit Participant hereunder (other than any such increase or reduction attributable to (i)
Taxes indemnifiable under Section 5.4, (ii) Excluded Taxes or (iii) Taxes described in Section 5.4(f)) in respect of Letters of
Credit or Letter of Credit Participations therein, then, promptly after receipt of written demand to the Borrower by the Letter of
Credit Issuer or such Letter of Credit Participant, as the case may be (a copy of which notice shall be sent by the Letter of Credit
Issuer or such Letter of Credit Participant to the Administrative Agent), the Borrower shall pay to the Letter of Credit Issuer or
such Letter of Credit Participant such additional amount or amounts as will compensate the Letter of Credit Issuer or such Letter of
Credit Participant for such increased cost or reduction, it being understood and agreed, however, that the Letter of Credit Issuer
or a Letter of Credit Participant shall not be entitled to such compensation as a result of such Person’s compliance with, or
pursuant to any request or directive to comply with, any such Applicable Law that would have existed in the event that a Change in
Law had not occurred. A certificate submitted to the Borrower by the Letter of Credit Issuer or a Letter of Credit Participant, as
the case may be (a copy of which certificate shall be sent by the Letter of Credit Issuer or such Letter of Credit Participant to
the Administrative Agent), setting forth in reasonable detail the basis for the determination of such additional amount or amounts
necessary to compensate the Letter of Credit Issuer or such Letter of Credit Participant as aforesaid shall be conclusive and
binding on the Borrower absent clearly demonstrable error. Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall
be entitled to seek compensation under this Section 3.5 based on the occurrence of a Change in Law arising solely from (x)
the Dodd-Frank Wall Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued
in connection therewith or (y) Basel III or any requests, rules, guidelines or directives thereunder or issued in connection
therewith, unless such Lender or Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S.
leveraged loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such
borrowers having provisions similar to this Section 3.5.
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3.6
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New or Successor Letter of Credit Issuer.
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(a) Any
Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 30 days’ prior written notice to the Administrative
Agent, the applicable Revolving Credit Lenders and the Borrower. Subject to the terms of the following sentence, the Borrower may
replace the Letter of Credit Issuer for any reason upon written notice to the Administrative Agent and the Letter of Credit Issuer
and the Borrower may add Letter of Credit Issuers at any time upon notice to the Administrative Agent and with the agreement of such
new Letter of Credit Issuer. If the Letter of Credit Issuer shall resign or be replaced, or if the Borrower shall decide to add a
new Letter of Credit Issuer under this Agreement, then the Borrower may appoint a successor issuer of Letters of Credit or a new
Letter of Credit Issuer, as the case may be, with the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed), whereupon such successor issuer shall succeed to the rights, powers and duties of the replaced or resigning
Letter of Credit Issuer under this Agreement and the other Credit Documents, or such new issuer of Letters of Credit shall be
granted the rights, powers and duties of a Letter of Credit Issuer hereunder, and the term “Letter of Credit Issuer”
shall mean such successor or such new issuer of Letters of Credit effective upon such appointment. At the time such resignation or
replacement shall become effective, the Borrower shall pay to the resigning or replaced Letter of Credit Issuer all accrued and
unpaid fees pursuant to Sections 4.1(b) and 4.1(d). The acceptance of any appointment as a Letter of Credit Issuer hereunder,
whether as a successor issuer or new issuer of Letters of Credit in accordance with this Agreement, shall be evidenced by an
agreement entered into by such new or successor issuer of Letters of Credit, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement, such new or successor issuer of Letters of Credit
shall become a “Letter of Credit Issuer” hereunder. After the resignation or replacement of a Letter of Credit Issuer
hereunder, the resigning or replaced Letter of Credit Issuer shall remain a party hereto and shall continue to have all the rights
and obligations of a Letter of Credit Issuer under this Agreement and the other Credit Documents with respect to Letters of Credit
issued by it prior to such resignation or replacement, but shall not be required to issue additional Letters of Credit or amend or
renew existing Letters of Credit. In connection with any resignation or replacement pursuant to this clause (a) (but, in case of any
such resignation, only to the extent that a successor issuer of Letters of Credit shall have been appointed), either (i) the
Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of Letters of Credit shall arrange to have any
outstanding Letters of Credit issued by the resigning or replaced Letter of Credit Issuer replaced with Letters of Credit issued by
the successor issuer of Letters of Credit or (ii) the Borrower shall cause the successor issuer of Letters of Credit, if such
successor issuer is reasonably satisfactory to the replaced or resigning Letter of Credit Issuer, to issue “back-stop”
Letters of Credit naming the resigning or replaced Letter of Credit Issuer as beneficiary for each outstanding Letter of Credit
issued by the resigning or replaced Letter of Credit Issuer, which new Letters of Credit shall have a face amount equal to the
Letters of Credit being back-stopped, and the sole requirement for drawing on such new Letters of Credit shall be a drawing on the
corresponding back-stopped Letters of Credit. After any resigning or replaced Letter of Credit Issuer’s resignation or
replacement as Letter of Credit Issuer, the provisions of this Agreement relating to a Letter of Credit Issuer shall inure to its
benefit as to any actions taken or omitted to be taken by it (A) while it was a Letter of Credit Issuer under this Agreement or (B)
at any time with respect to Letters of Credit issued by such Letter of Credit Issuer.
(b) To the extent that there are, at the time of any resignation or replacement as set forth in clause (a) above, any outstanding
Letters of Credit, nothing herein shall be deemed to impact or impair any rights and obligations of any of the parties hereto with respect
to such outstanding Letters of Credit (including, without limitation, any obligations related to the payment of fees or the reimbursement
or funding of amounts drawn), except that the Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of
Letters of Credit shall have the obligations regarding outstanding Letters of Credit described in clause (a) above.
3.7 Role
of Letter of Credit Issuer. Each Revolving Credit Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit, the Letter of Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering any such document. None of the Letter of Credit Issuer, any
Related Party of the Letter of Credit Issuer, the Administrative Agent, any of their respective Affiliates or any correspondent,
participant or assignee of the Letter of Credit Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Required Lenders or the Required Revolving Credit Lenders, as
applicable, (ii) any action taken or omitted in the absence of gross negligence, bad faith or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer
Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing
such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the
Letter of Credit Issuer, any Related Party of the Letter of Credit Issuer, the Administrative Agent, any of their respective
Affiliates or any correspondent, participant or assignee of the Letter of Credit Issuer shall be liable or responsible for any of
the matters described in Section 3.3(d); provided that anything in such Section to the contrary notwithstanding, the Borrower
may have a claim against the Letter of Credit Issuer, and the Letter of Credit Issuer may be liable to the Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower caused by the
Letter of Credit Issuer’s willful misconduct or gross negligence, as determined in a final non-appealable judgment of a court
of competent jurisdiction, or the Letter of Credit Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit (as determined by a court of competent jurisdiction in a final and non-appealable order). In furtherance and not in
limitation of the foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary, and the Letter of Credit Issuer
shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(a) If, as of the Letter of Credit Maturity Date, there are any Letter of Credit Obligations, the Borrower shall promptly (and
in any event not later than the following Business Day) Cash Collateralize the Letter of Credit Obligations that for any reason remain
outstanding. Section 2.16 and Section 5.2 set forth certain additional circumstances under which Cash Collateral may be, or is required
to be, delivered hereunder.
(b) If any Event of Default shall occur and be continuing, the Required Revolving Credit Lenders may require that the Letter
of Credit Obligations be Cash Collateralized; provided that, upon the occurrence of an Event of Default referred to in Section
11.5, the Borrower shall immediately Cash Collateralize the Letters of Credit then outstanding and no notice or request by or consent
from the Required Lenders shall be required.
(c) For
purposes of this Agreement, “Cash Collateralize” means to pledge and deposit with or deliver to the Collateral
Agent, for the benefit of the Letter of Credit Issuer collateral for the Letter of Credit Obligations cash or deposit account
balances (“Cash Collateral”) in an amount equal to the amount of the Letter of Credit Obligations required to be
Cash Collateralized pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the
Letter of Credit Issuer (which documents are hereby consented to by the Revolving Credit Lenders). Derivatives of such terms have
corresponding meanings. The Borrower hereby grants to the Collateral Agent, for the benefit of the Letter of Credit Issuer and the
Letter of Credit Participants, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any
Person other than the Collateral Agent, the Letter of Credit Issuer or the Letter of Credit Participants, other than any Liens
permitted under Section 10.2, or that the total amount of such Cash Collateral is less than the amount required to be delivered as
described above, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Collateral Agent
additional Cash Collateral in an amount sufficient to eliminate such deficiency. Cash Collateral shall be maintained in blocked,
interest bearing deposit accounts with the Collateral Agent.
(d)
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Agreement in respect
of Letters of Credit shall be held and applied to the satisfaction of the specific Letter of Credit Obligations, obligations to fund participations
therein, any interest accrued on such obligation and other obligations for which the Cash Collateral was so provided, prior to any other
application of such property as may otherwise be provided for herein.
(e)
Cash Collateral (or the appropriate portion thereof) provided to reduce or secure any obligations herein shall be released
promptly following (i) the elimination of the applicable obligation giving rise thereto or (ii) the determination by the Administrative
Agent and the Letter of Credit Issuer that there exists excess Cash Collateral; provided, however that (x) any such release shall
be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred
under the Credit Documents and the other applicable provisions of the Credit Documents, and (y) the Person providing Cash Collateral and
the Letter of Credit Issuer may agree that Cash Collateral shall not be released but instead held to support anticipated obligations.
3.9
Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.
3.10
Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding
hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse
the Letter of Credit Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the
issuance of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s
business derives substantial benefits from the businesses of such Restricted Subsidiaries.
3.11 Other.
(a) The Letter of Credit Issuer shall be under no obligation to issue any Letter of Credit if:
(i)
any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain
the Letter of Credit Issuer from issuing such Letter of Credit, or any requirement of law applicable to the Letter of Credit Issuer or
any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of
Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which the Letter of Credit Issuer in good faith deems material to it;
(ii)
the issuance of such Letter of Credit would violate one or more policies or procedures of the Letter of Credit Issuer;
(iii)
except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial
Stated Amount less than $100,000, in the case of a commercial Letter of Credit, or $10,000, in the case of a standby Letter of Credit;
(iv)
such Letter of Credit is denominated in a currency
other than Dollars; or
(v)
such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder.
(b)
The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer
would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary
of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. Unless otherwise expressly agreed by the Letter
of Credit Issuer and the Borrower when a Letter of Credit is issued, each Letter of Credit shall be governed by, and shall be construed
in accordance with, the laws of the State of New York.
(c) The
Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Section 12 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as
fully as if the term “Administrative Agent” as used in Section 12 included the Letter of Credit Issuer with respect to
such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
3.12
Applicability of ISP and UCP. Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when
a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall
apply to each commercial Letter of Credit. Notwithstanding the foregoing, the Letter of Credit Issuer shall not be responsible to the
Borrower for, and the Letter of Credit Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or
inaction of the Letter of Credit Issuer required or permitted under any Applicable Law, order, or practice that is required or permitted
to be applied to any Letter of Credit or this Agreement, including the Applicable Law or any order of a jurisdiction where the Letter
of Credit Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice
statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial
Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses
such law or practice.
SECTION 4. Fees;
Commitment Reductions and Terminations.
4.1 Fees.
(a)
The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender (in each case pro
rata according to the respective Revolving Credit Commitments of all such Revolving Credit Lenders) a commitment fee (the “Commitment
Fee”) in Dollars that shall accrue daily from and including the Closing Date to but excluding the Revolving Credit Termination
Date. Each such Commitment Fee shall be payable (x) quarterly in arrears on the last Business Day of each March, June, September and
December (for the three-month period (or portion thereof) ended on such day for which no payment has been received) and (y) on the Revolving
Credit Termination Date (for the period ended on such date for which no payment has been received pursuant to clause (x) above), and
shall be computed for each day during such period at a rate per annum equal to the Commitment Fee Rate in effect on such day to be calculated
based on the actual amount of the Available Revolving Credit Commitment (in each case, assuming for this purpose that there is no reference
to Swingline Loans in clause (b)(i) of the definition of Available Revolving Credit Commitment) in effect on such day.
(b)
Without duplication, the Borrower agrees to pay to the Letter of Credit Issuer for its own account a fronting fee (the “Fronting
Fee”) with respect to each Letter of Credit issued by such Letter of Credit Issuer on the Borrower’s behalf, computed
at the rate for each day for the period from and including the date of issuance of such Letter of Credit to but excluding the termination
or expiration date of such Letter of Credit equal to 0.125% per annum (or such other percentage per annum as may be agreed between the
applicable Letter of Credit Issuer and the Borrower), times the actual daily Stated Amount of such Letter of Credit. The Fronting
Fee shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, and on the Revolving
Credit Termination Date.
(c)
The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender, pro rata
according to the Letter of Credit Exposure of such Lender, a fee in Dollars in respect of each Letter of Credit (the “Letter
of Credit Fee”), for the period from and including the date of issuance of such Letter of Credit to but excluding the termination
or expiration date of such Letter of Credit, computed at the per annum rate for each day equal to (x) the Applicable Margin for Eurodollar
Loans then in effect for Revolving Credit Loans times (y) the actual daily Stated Amount of such Letter of Credit. Each Letter
of Credit Fee shall be due and payable quarterly in arrears on the first Business Day following each March, June, September and December
and on the Revolving Credit Termination Date. If there is any change in the Applicable Margin during any quarter, the daily maximum amount
of each Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that
such Applicable Margin was in effect.
(d)
The Borrower agrees to pay directly to each Letter of Credit Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of the Letter of Credit Issuer relating to Letters of Credit
as from time to time in effect. Such customary fees and standard costs and charges are due and payable within 10 Business Days after demand
and are nonrefundable.
(e)
The Borrower agrees to pay to the Administrative Agent the administrative agency fees in the amounts and on the dates as
set forth in the Fee Letter.
4.2 Voluntary
Reduction of Commitments.
(a)
Upon the prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at the Administrative
Agent’s Office (in which case the Administrative Agent shall promptly notify each of the Lenders), the Borrower shall have the
right, without premium or penalty, on any day, permanently to terminate or reduce the Commitments of any Class, as determined by the
Borrower, in whole or in part; provided that (a) any such notice shall be received by the Administrative Agent not later than
1:00 p.m., at least two Business Days prior to the proposed date of termination or reduction, (b) any such termination or reduction shall
apply proportionately and permanently to reduce the Commitments of each of the Lenders within such Class, except that, notwithstanding
the foregoing, (1) the Borrower may allocate any termination or reduction of Commitments among Classes of Commitments at its direction
(including, for the avoidance of doubt, to the Commitments with respect to any Class of Extended Revolving Credit Commitments without
any termination or reduction of the Commitments with respect to any Existing Revolving Credit Commitments of the same Specified Existing
Revolving Credit Commitment Class) and (2) in connection with the establishment on any date of any Extended Revolving Credit Commitments
pursuant to Section 2.15, the Existing Revolving Credit Commitments of any one or more Lenders providing any such Extended Revolving
Credit Commitments on such date shall be reduced in an amount equal to the amount of Specified Existing Revolving Credit Commitments
so extended on such date (or, if agreed by the Borrower and the Lenders providing such Extended Revolving Credit Commitments, by any
greater amount so long as (a) a proportionate reduction of the Specified Existing Revolving Credit Commitments has been offered to each
Lender to whom the applicable Revolving Credit Extension Request has been made (which may be conditioned upon such Lender becoming an
Extending Lender), and (b) the Borrower prepays the Existing Revolving Credit Loans of such Class owed to such Lenders providing such
Extended Revolving Credit Commitments to the extent necessary to ensure that, after giving pro forma effect to such repayment or reduction,
the Existing Revolving Credit Loans of such Class are held by the Lenders of such Class on a pro rata basis in accordance with
their Existing Revolving Credit Commitments of such Class after giving pro forma effect to such reduction) (provided that (x)
after giving pro forma effect to any such reduction and to the repayment of any Loans made on such date, the aggregate amount of the
revolving credit exposure of any such Lender does not exceed the Existing Revolving Credit Commitment thereof (such revolving credit
exposure and Revolving Credit Commitment being determined in each case, for the avoidance of doubt, exclusive of such Lender’s
Extended Revolving Credit Commitment and any exposure in respect thereof) and (y) for the avoidance of doubt, any such repayment of Loans
contemplated by the preceding clause shall be made in compliance with the requirements of Section 5.3(a) with respect to the ratable
allocation of payments hereunder, with such allocation being determined after giving pro forma effect to any conversion or exchange pursuant
to Section 2.15 of Existing Revolving Credit Commitments and Existing Revolving Credit Loans into Extended Revolving Credit Commitments
and Extended Revolving Credit Loans respectively, and prior to any reduction being made to the Commitment of any other Lender), (c) any
partial reduction pursuant to this Section 4.2 shall be in an aggregate amount of at least $1,000,000 or any whole multiple of $1,000,000
in excess thereof, (d) after giving pro forma effect to such termination or reduction and to any prepayments of Loans or cancellation
or Cash Collateralization of Letters of Credit made on the date thereof in accordance with this Agreement, the aggregate amount of the
Lenders’ revolving credit exposures for such Class shall not exceed the Total Revolving Credit Commitment for such Class, (e) after
giving pro forma effect to such termination or reduction and to any prepayments of Additional/Replacement Revolving Credit Loans of any
Class or cancellation or cash collateralization of letters of credit made on the date thereof in accordance with this Agreement, the
aggregate amount of such Lenders’ revolving credit exposures for such Class shall not exceed the Total Additional/Replacement Revolving
Credit Commitment for such Class and the aggregate amount of the Lenders’ revolving credit exposure for all Classes shall not exceed
the Total Revolving Credit Commitment for all Classes, and (f) if, after giving pro forma effect to any reduction hereunder, the Letter
of Credit Commitment or the Swingline Commitment exceeds the sum of the Total Revolving Credit Commitment and the Total Additional/Replacement
Revolving Credit Commitment (if any), such Commitment shall be automatically reduced by the amount of such excess.
(b)
Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the applicable
Revolving Credit Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Sub-Commitment,
in whole or in part; provided that, after giving pro forma effect to such termination or reduction, the Letter of Credit Obligations
shall not exceed the Letter of Credit Sub-Commitment.
(c)
Notwithstanding anything to the contrary set forth in Section 4.2(a), the Borrower may terminate the unused amount of the
Commitment of a Defaulting Lender upon not less than two (2) Business Days’ prior notice to the Administrative Agent (which will
promptly notify the Lenders thereof), and in such event the provisions of Section 2.16(f) will apply to all amounts thereafter paid by
the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity
or other amounts); provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the
Administrative Agent, any Letter of Credit Issuer, any Swingline Lender or any Lender may have against such Defaulting Lender.
4.3 Mandatory
Termination of Commitments.
(a)
The Total Initial Term Loan CommitmentCommitments
described in clause (a) of the definition thereof shall terminate upon the occurrence of the Closing Date and the Initial Term
Loan Commitments described in clause (b) of the definition thereof shall terminate upon the occurrence of the First Incremental Agreement Effective Date.
(b)
The Total Revolving Credit Commitment shall terminate at 2:00 p.m. (New York City time) on the Revolving Credit Maturity
Date.
(c)
The Swingline Commitments shall terminate at 2:00 p.m. (New York City time) on the Swingline Maturity Date.
(d)
The Incremental Term Loan Commitment for any Class shall, unless otherwise provided in the documentation governing such
Incremental Term Loan Commitment, terminate at 5:00 p.m. (New York City time) on the Incremental Facility Closing Date for such Class.
(e) The
Additional/Replacement Revolving Credit Commitment for any Class shall terminate at 5:00 p.m. (New York City time) on the maturity date
for such Class specified in the documentation governing such Class.
(f)
The Extended Loan/Commitment for any Extension Series shall terminate at 5:00 p.m. (New York City time) on the maturity
date for such Class specified in the Extension Agreement.
SECTION 5. Payments.
5.1 Voluntary
Prepayments.
(a)
The Borrower shall have the right to prepay Term Loans, Revolving Credit Loans, Extended Revolving Credit Loans and Additional/Replacement
Revolving Credit Loans and Swingline Loans, without, except as set forth in Section 5.1(b), premium or penalty, in whole or in part from
time to time on the following terms and conditions: (1) the Borrower shall give the Administrative Agent at the Administrative Agent’s
Office written notice (or telephonic notice promptly confirmed in writing) of its intent to make such prepayment, the amount of such
prepayment and in the case of Eurodollar Loans, the specific Borrowing(s) pursuant to which made, which notice shall be in the form attached
hereto as Exhibit N and be given by the Borrower no later than 1:00 p.m. (New York City time) (x) on the date of such prepayment (in
the case of ABR Loans, including Swingline Loans) or (y) three Business Days prior to (in the case of Eurodollar Loans), and, in each
case, the Administrative Agent shall promptly notify each of the relevant Lenders or the relevant Swingline Lender, as the case may be,
(2) each partial prepayment of any Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple of $500,000 and in an aggregate
principal amount of at least $1,000,000 and each partial prepayment of Swingline Loans shall be in a multiple of $100,000 and in an aggregate
principal amount of at least $100,000; provided that no partial prepayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount for
Eurodollar Loans and (3) any prepayment of Eurodollar Loans pursuant to this Section 5.1 on any day other than the last day of an Interest
Period applicable thereto shall be subject to compliance by the Borrower with the applicable provisions of Section 2.11. Each such notice
shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. Each prepayment in respect
of any Class of Term Loans pursuant to this Section 5.1 shall be applied to reduce the Repayment Amounts in such order as the Borrower
may determine and may be applied to any Class of Term Loans as directed by the Borrower. For the avoidance of doubt, the Borrower may
(i) prepay Term Loans of an Existing Term Loan Class pursuant to this Section 5.1 without any requirement to prepay Extended Term Loans
that were converted or exchanged from such Existing Term Loan Class and (ii) prepay Extended Term Loans pursuant to this Section 5.1
without any requirement to prepay Term Loans of an Existing Term Loan Class that were converted or exchanged for such Extended Term Loans.
In the event that the Borrower does not specify the order in which to apply prepayments to reduce Repayment Amounts or as between Classes
of Term Loans, the Borrower shall be deemed to have elected that such proceeds be applied to reduce the Repayment Amounts in direct order
of maturity and/or a pro rata basis among Term Loan Classes. All prepayments under this Section 5.1 shall also be subject to the
provisions of Sections 5.2(d) and 5.2(e). At the Borrower’s election in connection with any prepayment pursuant to this Section
5.1, such prepayment shall not be applied to any Loan of a Defaulting Lender.
(b)
Notwithstanding anything to the contrary contained in this Agreement, at the time of the effectiveness of any Repricing
Transaction (including any Incurrence of Incremental Term Loans pursuant to the proviso of Section 2.14(b) in respect of Initial Term
Loans) that is consummated prior to the six-month anniversary of the ClosingFirst
Incremental Agreement Effective Date (the “Prepayment Premium Period”), the Borrower agrees to pay to the
Administrative Agent, for the ratable account of each Lender with outstanding Initial Term Loans, a fee in an amount equal to 1.0% of
(x) in the case of a Repricing Transaction of the type described in clause (a) of the definition thereof, the aggregate principal amount
of all Initial Term Loans prepaid (or converted or exchanged) in connection with such Repricing Transaction and (y) in the case of a
Repricing Transaction described in clause (b) of the definition thereof, the aggregate principal amount of all Initial Term Loans outstanding
on such date that are subject to an effective pricing reduction pursuant to such Repricing Transaction. Such fees shall be due and payable
upon the date of the effectiveness of such Repricing Transaction. For the avoidance of doubt, on and after the date that is six months
following the ClosingFirst
Incremental Agreement Effective Date, no fee shall be payable pursuant to this Section 5.1(b).
5.2 Mandatory
Prepayments.
(a) Term
Loan Prepayments.
(i)
On each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after the receipt of Net
Cash Proceeds from a Debt Incurrence Prepayment Event and within five Business Days after the receipt of Net Cash Proceeds in connection
with the occurrence of any other Prepayment Event, offer to prepay (or, in the case of a Debt Incurrence Prepayment Event arising from
(A) the Incurrence of Incremental Term Loans in reliance on clause (x) of the proviso to Section 2.14(b), (B) the Incurrence of Permitted
Additional Debt in reliance on clause (x) of Section 10.1(u)(i) or (C) to the extent relating to Term Loans, the Incurrence of any Credit
Agreement Refinancing Indebtedness (any of the foregoing, a “Specified Debt Incurrence Prepayment Event”), prepay),
in accordance with Sections 5.2(c) and 5.2(d) below, without premium or penalty (other than to the extent any such Debt Incurrence Prepayment
Event would constitute a Repricing Transaction), a principal amount of Term Loans in an amount equal to 100% of the Net Cash Proceeds
from such Prepayment Event; provided that, in the case of Net Cash Proceeds from an Asset Sale Prepayment Event or a Recovery
Prepayment Event, the Borrower may use cash in an amount not to exceed the amount of such Net Cash Proceeds to prepay, redeem, defease,
acquire repurchase or make a similar payment to any Permitted Equal Priority Refinancing Debt or any Permitted Additional Debt secured
by a Lien on the Collateral that ranks equal in priority to the Liens on such Collateral securing the Obligations (but without regard
to the control of remedies), in each case the documentation with respect to which requires the issuer or borrower under such Indebtedness
to prepay or make an offer to prepay, redeem, repurchase, defease, acquire or satisfy and discharge such Indebtedness with the proceeds
of such Prepayment Event, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds multiplied
by (2) a fraction, the numerator of which is the outstanding principal amount of the Permitted Equal Priority Refinancing Debt and
Permitted Additional Debt secured by a Lien on the Collateral that ranks equal in priority to the Liens on such Collateral securing the
Obligations (but without regard to control of remedies) and with respect to which such a requirement to prepay or make an offer to prepay,
redeem, repurchase, defease, acquire or satisfy and discharge exists and the denominator of which is the sum of the outstanding principal
amount of such Permitted Equal Priority Refinancing Debt and Permitted Additional Debt and the outstanding principal amount of Term Loans;
provided, further, that in the case of Net Cash Proceeds from an Asset Sale Prepayment Event or a Recovery Prepayment Event, (A)
the percentage in this Section 5.2(a)(i) shall be reduced to 50.0% if the Borrower’s Consolidated First Lien Debt to Consolidated
EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date the Net Cash
Proceeds are required to be offered, is less than or equal to 4.75 to 1.00 but greater than 4.25 to 1.00 and (B) no payment of any Term
Loans shall be required under this Section 5.2(a)(i) if the Borrower’s Consolidated First Lien Debt to Consolidated EBITDA Ratio,
as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date the Net Cash Proceeds are
required to be offered, is less than or equal to 4.25 to 1.00.
(ii)
Not later than the date that is ten Business Days following the date Section 9.1 Financials are required to be delivered
under Section 9.1(a) (commencing with the Section 9.1 Financials to be delivered with respect to the fiscal year ending December 31,
2018), the Borrower shall offer to prepay, in accordance with Sections 5.2(c) and 5.2(d) below, without premium or penalty, an aggregate
principal amount of Term Loans equal to (x) 50.0% of Excess Cash Flow for such fiscal year minus (y) at the Borrower’s option,
(1) the aggregate principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1, (2) the aggregate principal amount of Revolving
Credit Loans, Extended Revolving Credit Loans and Additional/Replacement Revolving Credit Loans and other revolving loans that are effective
in reliance on Section 10.1(a) or Section 10.1(u) voluntarily prepaid pursuant to Section 5.1 to the extent accompanied by a permanent
reduction of such Revolving Credit Commitments, Incremental Revolving Credit Commitment Increases, Extended Revolving Credit Commitments,
Additional/Replacement Revolving Credit Commitments or other revolving commitments, as applicable, in an equal amount pursuant to Section
4.2 (or equivalent provision governing such revolving credit facility) and (3) the aggregate amount of cash consideration paid by any
Purchasing Borrower Party (other than Holdings) to effect any assignment to it of Term Loans pursuant to Section 13.6(g) (but only to
the extent that such Term Loans have been cancelled) but excluding the aggregate principal amount of any such voluntary prepayments and
any such assignments made with the proceeds of Incurrences of long-term Indebtedness or issuances of Capital Stock), in each case during
such fiscal year or after year-end and prior to the time such prepayment pursuant to this Section 5.2(a)(ii) is due; provided
that, in the case that Excess Cash Flow is required to be offered to prepay any Term Loans, the Borrower may use cash in an amount not
to exceed the amount of such Excess Cash Flow required to be offered to prepay the Term Loans to prepay, redeem, defease, acquire, repurchase
or make a similar payment to any Permitted Equal Priority Refinancing Debt or any Permitted Additional Debt secured by a Lien on the
Collateral that ranks equal in priority to the Liens on such Collateral securing the Obligations (but without regard to the control of
remedies), in each case the documentation with respect to which requires the issuer or borrower under such Indebtedness to prepay or
make an offer to prepay, redeem, repurchase, defease, acquire or satisfy and discharge such Indebtedness with a percentage of Excess
Cash Flow, in each case in an amount not to exceed the product of (1) the amount of such Excess Cash Flow required to be offered to prepay
the Term Loans multiplied by (2) a fraction, the numerator of which is the outstanding principal amount of the Permitted Equal
Priority Refinancing Debt and Permitted Additional Debt secured by a Lien on the Collateral that ranks equal in priority to the Liens
on such Collateral securing the Obligations (but without regard to control of remedies) and with respect to which such a requirement
to prepay or make an offer to prepay, redeem, repurchase, defease, acquire or satisfy and discharge exists and the denominator of which
is the sum of the outstanding principal amount of such Permitted Equal Priority Refinancing Debt and Permitted Additional Debt and the
outstanding principal amount of Term Loans; provided, further, that (A) the percentage in this Section 5.2(a)(ii) shall be reduced
to 25% if the Borrower’s Consolidated First Lien Debt to Consolidated EBITDA Ratio for the fiscal year ended prior to such prepayment
date is less than or equal to 4.75 to 1.00 but greater than 4.25 to 1.00 and (B) no payment of any Term Loans shall be required under
this Section 5.2(a)(ii) if the Consolidated First Lien Debt to Consolidated EBITDA Ratio for the fiscal year ended prior to such prepayment
date is less than or equal to 4.25 to 1.00. Any prepayment amounts credited pursuant to subclause (y) above against such amount in subclause
(x) above shall be without duplication of any such credit in any prior or subsequent fiscal year.
(b)
Repayment of Revolving Credit Loans. If, on any date, the aggregate amount of the Lenders’ Revolving Credit
Exposures in respect of any Class of Revolving Credit Loans for any reason exceeds 100% of the Revolving Credit Commitment of such Class
then in effect, the Borrower shall forthwith repay on such date the principal amount of Swingline Loans of such Class, and after all such
Swingline Loans have been paid in full, the Revolving Credit Loans of such Class in an amount equal to such excess. If, after giving pro
forma effect to the prepayment of all outstanding Swingline Loans and Revolving Credit Loans of such Class, the Revolving Credit Exposures
of such Class exceeds the Revolving Credit Commitment of such Class then in effect, the Borrower shall Cash Collateralize the Letters
of Credit outstanding in relation to such Class to the extent of such excess.
(c) Application
to Repayment Amounts.
(i)
Subject to clause (ii) of this Section 5.2(c), the first proviso to Section 5.2(a)(i) and the first proviso to Section
5.2(a)(ii), (A) each prepayment of Term Loans required by Sections 5.2(a)(i) and (ii) (other than in connection with a Debt Incurrence
Prepayment Event) shall be allocated to the Classes of Term Loans outstanding, pro rata, based upon the applicable remaining Repayment
Amounts due in respect of each such Class of Term Loans (excluding any Class of Term Loans that has agreed to receive a less than pro
rata share of any such mandatory prepayment and taking into account any reduction in the amount of any required Excess Cash Flow
payment to any Class of Term Loans that have been subject to a Section 13.6(g) transaction), shall be applied pro rata to Lenders within
each Class, based upon the outstanding principal amounts owing to each such Lender under each such Class of Term Loans and shall be applied
to reduce such scheduled Repayment Amounts within each such Class in accordance with Section 5.2(d)(ii) and (B) each prepayment of Term
Loans required by Section 5.2(a)(i) in connection with a Debt Incurrence Prepayment Event shall be allocated to any Class of Term Loans
outstanding as directed by the Borrower (subject to the requirement that the proceeds of any Specified Debt Incurrence Prepayment Event
shall in all cases be applied to prepay or repay the applicable Refinanced Indebtedness), shall be applied pro rata to Lenders within
each such Class, based upon the outstanding principal amounts owing to each such Lender under each such Class of Term Loans and shall
be applied to reduce such scheduled Repayment Amounts within each such Class in accordance with Section 5.2(d)(ii); provided that,
with respect to the allocation of such prepayments under clause (A) above only, between an Existing Term Loan Class and Extended Term
Loans of the same Extension Series, the Borrower may allocate such prepayments as the Borrower may specify, subject to the limitation
that the Borrower shall not allocate to Extended Term Loans of any Extension Series any such mandatory prepayment under such clause (A)
unless such prepayment is accompanied by at least a pro rata prepayment, based upon the applicable remaining Repayment Amounts due in
respect thereof, of the Term Loans of the Existing Term Loan Class, if any, from which such Extended Term Loans were converted or exchanged
(or such Term Loans of the Existing Term Loan Class have otherwise been repaid in full).
(ii) With
respect to each such prepayment required by Section 5.2(a)(i) and Section 5.2(a)(ii) (other than any Debt Incurrence Prepayment
Event), (A) the Borrower will, not later than the date specified in Section 5.2(a) for offering to make such prepayment, give the
Administrative Agent, written notice requesting that the Administrative Agent provide notice of such prepayment to each Lender and
the Administrative Agent will promptly provide such notice to each Lender, (B) other than if such prepayment arises due to a
Specified Debt Incurrence Prepayment Event, each Lender of Term Loans will have the right to refuse any such prepayment by giving
written notice of such refusal to the Administrative Agent and the Borrower within three Business Days after such Lender’s
receipt of notice from the Administrative Agent of such prepayment, and to the extent any such prepayment is so refused, such
amounts may be retained by the Borrower (the “Retained Refused Proceeds”) and (C) the
Borrower will make all such prepayments not so refused upon the tenth Business Day after the Lender received first notice of
repayment from the Administrative Agent.
(d) Application
to Term Loans.
(i)
With respect to each prepayment of Term Loans elected by the Borrower pursuant to Section 5.1 or pursuant to a Specified
Debt Incurrence Prepayment Event, such prepayments shall be applied to reduce Repayment Amounts in such order as the Borrower may specify
(or, if not specified, in direct order of maturity) and the Borrower may designate the Types of Loans that are to be prepaid and the
specific Borrowing(s) pursuant to which made; provided that the Borrower pays any amounts, if any, required to be paid pursuant
to Section 2.11 with respect to prepayments of Eurodollar Loans made on any date other than the last day of the applicable Interest Period.
In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent, shall, subject to the
above, make such designation in a manner that minimizes the amount of payments required to be made by the Borrower pursuant to Section
2.11.
(ii)
With respect to each prepayment of Term Loans by the Borrower required pursuant to Section 5.2(a) (other than in respect
of a Specified Debt Incurrence Prepayment Event) such prepayments shall be applied to reduce Repayment Amounts in direct order of maturity
and on a pro rata basis to the then outstanding Term Loans (other than any Class of Term Loans that has agreed to receive a less
than pro rata share of any such mandatory prepayment) being prepaid irrespective of whether such outstanding Term Loans are ABR
Loans or Eurodollar Loans; provided that, if no Lender exercises the right to waive a given mandatory prepayment of the Term Loans
pursuant to Section 5.2(c)(ii), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied
first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans in a manner
that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.11.
(e) Application
to Revolving Credit Loans; Mandatory Commitment Reduction.
(i) With
respect to each prepayment of Revolving Credit Loans, Extended Revolving Credit Loans and Additional/Replacement Revolving Credit
Loans elected by the Borrower pursuant to Section 5.1 or required by Section 5.2(b), the Borrower may designate (i) the Class and
Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which such Loans were made and (ii) the Class of
Revolving Credit Loans, Extended Revolving Credit Loans or Additional/Replacement Revolving Credit Loans to be prepaid; provided
that (x) Eurodollar Loans may be designated for prepayment
pursuant to this Section 5.2 only on the last day of an Interest Period applicable thereto unless all Eurodollar Loans with Interest
Periods ending on such date of required prepayment and all ABR Loans have been paid in full; (y) each prepayment of any Loans made
pursuant to a Borrowing shall be applied pro rata among such Loans of such Class (except that any prepayment made in
connection with a reduction of the Commitments of such Class pursuant to Section 4.2 shall be applied pro rata based on the amount
of the reduction in the Commitments of such Class of each applicable Lender); and (z) notwithstanding the provisions of the
preceding clause (y), at the option of the Borrower, no prepayment made pursuant to Section 5.1 or Section 5.2(b) of Revolving
Credit Loans, Extended Revolving Credit Loans or Additional/Replacement Revolving Credit Loans of any Class shall be applied to the
Loans of any Defaulting Lender. In the absence of a designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in a manner that minimizes the amount of any payments
required to be made by the Borrower pursuant to Section 2.11.
(ii) With
respect to each mandatory reduction and termination of Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments
(and any previously extended Extended Revolving Credit Commitments) required by either clause (i) or (ii) of the proviso to Section 2.14(b),
by Section 10.1(u)(i) or in connection with the Incurrence of any Credit Agreement Refinancing Indebtedness Incurred to Refinance any
Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments and/or Extended Revolving Credit Commitments, the Borrower
may designate (A) the Classes of Commitments to be reduced and terminated and (B) the corresponding Classes of Loans to be prepaid; provided
that (x) any such reduction and termination shall apply proportionately and permanently to reduce the Commitments of each of the
Lenders within any such Class and (y) after giving pro forma effect to such termination or reduction and to any prepayments of Loans
or cancellation or cash collateralization of letters of credit made on the date of each such reduction and termination in accordance
with this Agreement, the aggregate amount of such Lenders’ credit exposures shall not exceed the remaining Commitments of such
Lenders’ in respect of the Class reduced and terminated. In connection with any such termination or reduction, to the extent necessary,
the participations hereunder in outstanding Letters of Credit and Swingline Loans may be required to be reallocated and related loans
outstanding prepaid and then reborrowed, in each case in the manner contemplated by Section 2.14(f)(ii) (as modified to account for a
termination or reduction, as opposed to an increase, of such Commitment).
(f) Eurodollar
Interest Periods. In lieu of making any payment pursuant to this Section 5.2 in respect of any Eurodollar Loan other than on the
last day of the Interest Period thereof, so long as no Default or Event of Default shall have occurred and be continuing, the
Borrower at its option may deposit with the Administrative Agent an amount equal to the amount of the Eurodollar Loan to be prepaid
and such Eurodollar Loan shall be repaid on the last day of the Interest Period therefor in the required amount. Such deposit shall
be held by the Administrative Agent in a corporate time deposit account established on terms reasonably satisfactory to the
Administrative Agent, earning interest at the then-customary rate for accounts of such type. Such deposit shall constitute cash
collateral for the Obligations; provided that the Borrower may at any time direct that such deposit be applied to make the
applicable payment required pursuant to this Section 5.2.
(g) Minimum
Amount.
(i)
No prepayment shall be required pursuant to Section 5.2(a)(i) (except to the extent such prepayment arises due to a Debt Incurrence
Prepayment Event) unless and until the amount at any time of Net Cash Proceeds from Prepayment Events required to be offered at or prior
to such time pursuant to such Section and not yet offered at or prior to such time to prepay Term Loans pursuant to such Section exceeds
(i) $5,000,000 for any single Prepayment Event or series of related Prepayment Events and (ii) $10,000,000 in the aggregate for all such
Prepayment Events in any fiscal year, at which time the amount in excess of $5,000,000 or $10,000,000, as the case may be, will be offered
to be prepaid as provided in Section 5.2(a)(i), with the date of receipt of such Net Cash Proceeds being deemed for such purpose to be
the date such thresholds set forth in clauses (i) and (ii) of this clause (g) are met.
(ii)
No prepayment shall be required pursuant to Section 5.2(a)(ii) unless and until the amount of Excess Cash Flow required
to be offered to prepay Term Loans for a fiscal year pursuant to such Section exceeds $2,500,000, at which time the amount in excess of
$2,500,000, will be offered to be prepaid as provided in Section 5.2(a)(ii).
(h)
Non-Credit Party Asset Sales. Notwithstanding any other provisions of this Section 5.2(h), (i) to the extent that
any of or all the Net Cash Proceeds of any asset sale by a Non-Credit Party giving rise to an Asset Sale Prepayment Event (a “Non-Credit
Party Asset Sale”), the Net Cash Proceeds of any Recovery Event from a Non-Credit Party (a “Non-Credit Party Recovery
Event”) or Excess Cash Flow, are prohibited, delayed or restricted by applicable local law, rule or regulation (including financial
assistance and corporate benefit restrictions and statutory duties of the relevant directors) from being repatriated or expatriated to
the United States or from being distributed to a Credit Party, the portion of such Net Cash Proceeds or Excess Cash Flow so affected
will not be required to be applied to repay Term Loans at the times provided in this Section 5.2(h) but may be retained by the applicable
Non-Credit Party so long, but only so long, as the applicable local law, rule or regulation will not permit repatriation to the United
States or expatriation or distribution to a Credit Party (the Borrower hereby agreeing to cause the applicable Non-Credit Party to promptly
take all commercially reasonable actions available under applicable local law, rule or regulation to permit such repatriation, expatriation
or distribution), and once such repatriation, expatriation or distribution of any of such affected Net Cash Proceeds or Excess Cash Flow
is permitted under the applicable local law, rule or regulation, such repatriation, expatriation or distribution will be immediately
effected and such repatriated, expatriated or distributed Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not
later than two Business Days after such repatriation, expatriation or distribution) applied (net of additional taxes payable or reserved
against as a result thereof) to the repayment of the Term Loans (and, if applicable, such other Indebtedness as is contemplated by this
Section 5.2(h)) pursuant to this Section 5.2(h) and (ii) to the extent that the Borrower has determined in good faith that such repatriation
or expatriation of any of or all the Net Cash Proceeds of any Non-Credit Party Asset Sale, any Non-Credit Party Recovery Event or Excess
Cash Flow would have a material adverse tax cost consequence with respect to such Net Cash Proceeds or Excess Cash Flow (but only for
so long as such material adverse tax cost consequence exists), the Net Cash Proceeds or Excess Cash Flow so affected may be retained
by the applicable Non-Credit Party; provided that, in the case of this clause (ii), on or before the date on which any Net Cash
Proceeds from any Non-Credit Party Asset Sale or Non-Credit Party Recovery Event so retained would otherwise have been required to be
applied to reinvestments or prepayments pursuant to Section 5.2(a) (or, in the case of Excess Cash Flow, a date on or before the date
that is six months after the date such Excess Cash Flow would have been so required to be applied to prepayments pursuant to Section
5.2(a)(ii) unless previously repatriated or expatriated in which case such repatriated or expatriated Excess Cash Flow shall have been
promptly applied to the repayment of the Term Loans pursuant to Section 5.2(a)), (x) the Borrower applies an amount equal to such Net
Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received
by the Borrower rather than such Non-Credit Party, less the amount of additional taxes that would have been payable or reserved against
if such Net Cash Proceeds or Excess Cash Flow had been repatriated or expatriated (or, if less, the Net Cash Proceeds or Excess Cash
Flow that would be calculated if received by such Non-Credit Party) or (y) such Net Cash Proceeds or Excess Cash Flow are applied to
the repayment of Indebtedness of a Non-Credit Party.
5.3 Method
and Place of Payment.
(a)
All payments under this Agreement shall be made by the Borrower, without set-off, counterclaim or deduction of any kind.
Except as otherwise specifically provided in this Agreement, all payments by the Borrower under this Agreement shall be made in Dollars
to the Administrative Agent for the ratable account of the applicable Lenders entitled thereto, the applicable Letter of Credit Issuer
or the Swingline Lender (except to the extent payments are to be made directly to such Letter of Credit Issuer or the Swingline Lender),
as the case may be, not later than 2:00 p.m. (New York City time) on the date when due and shall be made in immediately available funds
at the Administrative Agent’s Office it being understood that written, electronic or facsimile notice by the Borrower to the Administrative
Agent to make a payment from the funds in the Borrower’s account at the Administrative Agent’s Office shall constitute the
making of such payment to the extent of such funds held in such account. The Administrative Agent will thereafter cause to be distributed
on the same day (if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York City time) on such day and,
if not, on the next Business Day in the Administrative Agent’s sole discretion) like funds relating to the payment of principal
or interest or Fees ratably to the Lenders entitled thereto or to the Letter of Credit Issuer or the Swingline Lender, as applicable.
(b)
For purposes of computing interest or fees, any payments under this Agreement that are made later than 2:00 p.m. (New York
City time) shall be deemed to have been made on the next succeeding Business Day in the Administrative Agent’s sole discretion (and
the Administrative Agent may extend such deadline in its discretion whether or not such payments are in process). Except as otherwise
provided in this Agreement, whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable
during such extension at the applicable rate in effect immediately prior to such extension.
5.4 Net
Payments.
(a)
Except as required by law, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document
shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority (including any interest, additions to tax and penalties) (collectively, “Taxes”) excluding
in the case of each Lender and each Agent and except as otherwise provided in Section 5.4(f), (A) net income Taxes and franchise Taxes
(imposed in lieu of net income Taxes) imposed on such Agent or such Lender as a result of (i) such Agent or such Lender having been organized
under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction
imposing such Tax or (ii) a present or former connection between such Agent or such Lender and the jurisdiction imposing such Tax or
any political subdivision or taxing authority thereof or therein (other than any such connection arising from such Agent or such Lender
having executed, delivered or performed its obligations or received a payment under, or enforced, or engaged in any other transactions
pursuant to, this Agreement or any other Credit Document), (B) any branch profits Taxes imposed by the United States of America or any
similar Tax imposed by any other jurisdiction described in clause (A) and (C) any U.S. federal withholding Tax imposed pursuant to FATCA
(collectively, “Excluded Taxes”). If any such non- Excluded Taxes imposed on or with respect to any payment by or
on account of any obligation of any Credit Party under Credit Documents (“Non-Excluded Taxes”) are required to be
withheld by a Withholding Agent from any amounts payable under this Agreement or any other Credit Document, the applicable Credit Party
shall increase the amounts payable to the Administrative Agent or such Lender to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes including those applicable to any amounts payable under this Section 5.4)
interest or any such other amounts payable hereunder at the rates or in the amounts specified in such Credit Document. Whenever any withholding
Taxes are payable by any Credit Party in respect of amounts payable under any Credit Document, promptly thereafter, the applicable Credit
Party shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt, if available (or other evidence acceptable to such Lender, acting reasonably) received by the applicable
Credit Party showing payment thereof. The agreements in this Section 5.4 shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.
(b)
In addition, each Credit Party shall pay any present or future stamp, documentary, filing, mortgage, recording, property
or intangible taxes, charges or similar levies that arise from any payment made by such Credit Party hereunder or under any other Credit
Documents or from the execution, delivery or registration or recordation of, performance under, or otherwise with respect to, this Agreement
or the other Credit Documents, except any taxes imposed as a result of a present or former connection between an assignee and the jurisdiction
imposing such tax (other than a connection arising solely from an assignee having executed, delivered, become a party to, performed its
obligations under, received or perfected a security interest under, engaged in any transaction pursuant to, or enforced this Agreement)
with respect to an assignment (other than an assignment requested by a Credit Party) (hereinafter referred to as “Other Taxes”).
(c)
(i) Subject to Section 5.4(f), the Credit Parties shall jointly and severally indemnify each Lender and each Agent for
and hold them harmless against the full amount of Non-Excluded Taxes and Other Taxes, and for the full amount of Non-Excluded Taxes and
Other Taxes payable, imposed or asserted (whether or not correctly or legally asserted) by any jurisdiction on any additional amounts
or indemnities payable under this Section 5.4, imposed on or paid by such Lender or such Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto; provided that if any
claim pursuant to this Section 5.4(c)(i) is made later than 180 days after the date on which the relevant Lender or Agent had actual
knowledge of the relevant Non-Excluded Taxes or Other Taxes, then the Credit Parties shall not be required to indemnify the applicable
Lender or Agent for any penalties which accrue in respect of such Non-Excluded Taxes or Other Taxes after the 180th day. This indemnification
shall be made within 30 days from the date such Lender or such Agent (as the case may be) makes written demand therefor.
(ii)
Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand
therefor, (x) the Administrative Agent against any Non-Excluded Taxes attributable to such Lender (but only to the extent that any Credit
Party has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of Credit
Parties to do so), (y) the Administrative Agent and the Credit
Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.6(d)(ii)
relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Credit Parties, as applicable, against
any Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent or the Credit Parties in connection
with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered
to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Credit Document against
any amount due to the Administrative Agent under this clause (ii).
(d)
Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower
and the Administrative Agent with any documentation prescribed by any Applicable Law or reasonably requested by the Borrower or the Administrative
Agent (A) as will permit such payments to be made without, or at a reduced rate of, withholding or (B) as will enable the Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation obsolete, expired or inaccurate
in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including
any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative
Agent of its inability to do so. Notwithstanding anything herein to the contrary, the completion, execution and submission of such documentation
(other than such documentation set forth in Sections 5.4(d)(i), 5.4(e) and 5.4(g) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or
would materially prejudice the legal or commercial position of such Lender. Without limiting the foregoing to the extent permitted by
law, each Lender that is not a United States person within the meaning of Section 7701(a)(30) of the Code (a “Non-U.S. Lender”)
shall:
(i)
deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement
(and from time to time thereafter upon the request of the Borrower or the Administrative Agent) two properly executed originals of (w)
in the case of Non-U.S. Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect
to payments of “portfolio interest,” United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate
representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code, is not a 10 percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code) substantially in the form of Exhibit K (a “United States Tax Compliance
Certificate”)), (x) United States Internal Revenue Service Form W-8BEN, W-8BEN-E or Form W-8ECI, (y) to the extent a Non-U.S.
Lender is not the Beneficial Owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), United States
Internal Revenue Service Form W-8IMY (or any successor forms) of the Non-U.S. Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E,
United States Tax Compliance Certificate, Form W-9, Form W-8IMY or any other required information from each Beneficial Owner, as applicable
(provided that, if one or more Beneficial Owners are claiming the portfolio interest exemption, the United States Tax Compliance
Certificate may be provided by such Non-U.S. Lender on behalf of such Beneficial Owner), and/or (z) any other form prescribed by applicable
U.S. federal income Tax laws (including the United States Treasury Regulations) as a basis for claiming a complete exemption from, or
a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents, in each case properly completed
and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments
by the Borrower under this Agreement; and
(ii)
deliver to the Borrower and the Administrative Agent two further originals of any such form or certification (or any applicable
successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate and promptly after
the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower;
unless in any such case any change
in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such
form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it. Each Lender shall
promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any
previously delivered form or certification to the Borrower or the Administrative Agent.
(e)
If a payment made to a Lender under this Agreement or any other Credit 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 Withholding Agent, at the time or times prescribed
by law and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including
as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent
as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has or has not
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 Section 5.4(e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(f)
No Credit Party shall be required to indemnify any Lender or Agent pursuant to Section 5.4(c), or to pay any additional
amounts to any Lender or Agent pursuant to Section 5.4(a) in respect of (i) U.S. federal withholding Taxes imposed under any law in effect
on the date such Lender acquired its interest in the applicable Loan, Commitment or Letter of Credit or changed its lending office; provided,
however, that this Section 5.4(f) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender
would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person
making the assignment or change in lending office would have been entitled to receive immediately prior to such assignment or change
in lending office, or (y) such assignment had been requested by a Credit Party or (ii) Taxes attributable to such Lender’s failure
to comply with the provisions of Section 5.4(d), 5.4(e) or 5.4(g).
(g)
Each Lender that is organized in the United States of America or any state thereof or the District of Columbia shall (A)
on or prior to the date such Lender becomes a Lender hereunder, (B) on or prior to the date on which any such form or certification expires
or becomes obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered
by it pursuant to this Section 5.4(g) and (D) from time to time if requested by the Borrower or the Administrative Agent (or, in the
case of a participant, the relevant Lender), provide the Administrative Agent and the Borrower (or, in the case of a participant, the
relevant Lender) with two duly completed and signed originals of United States Internal Revenue Service Form W-9 (certifying that such
Lender is entitled to an exemption from U.S. backup withholding tax) or any successor form.
(h)
If any Lender or the Administrative Agent determines in its sole discretion, exercised in good faith, that it has received
a refund of a Non-Excluded Tax or Other Taxes for which a payment has been made by a Credit Party pursuant to this Agreement, which refund
in the good-faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by such
Credit Party, then such Lender or the Administrative Agent, as the case may be, shall reimburse the Credit Party for such amount (together
with any interest received thereon) as such Lender or the Administrative Agent, as the case may be, reasonably determines to be the proportion
of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had
not been required; provided that the Credit Party, upon the request of such Lender, agrees to repay the amount paid over to the
Credit Party (with interest and penalties) in the event such Lender or the Administrative Agent is required to repay such refund to such
Governmental Authority. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax
affairs or computations to any Credit Party in connection with this paragraph (h) or any other provision of this Section 5.4; provided,
further, that nothing in this Section 5.4 shall obligate any Lender (or Transferee) or the Administrative Agent to apply for any
refund.
(i)
For purpose of this Section 5.4, the term “Lender” shall include any Swingline Lender and any Letter
of Credit Issuer.
5.5
Computations of Interest and Fees. All computations of interest and of fees shall be made by the Administrative Agent
on the basis of a year of 360 days and, in the case of ABR Loans, 365 or 366 days, as the case may be, in each case for the actual number
of days (including the first day but excluding the last) occurring in the period for which such interest and fees are payable.
5.6 Limit
on Rate of Interest.
(a)
No Payment Shall Exceed Lawful Rate. Notwithstanding any other term of this Agreement, the Borrower shall not be
obliged to pay any interest or other amounts under or in connection with this Agreement or any other Credit Document in excess of the
amount or rate permitted under or consistent with any Applicable Law.
(b)
Payment at Highest Lawful Rate. If the Borrower is not obliged to make a payment which it would otherwise be required
to make, as a result of Section 5.6(a), the Borrower shall make such payment to the maximum extent permitted by or consistent with Applicable
Law.
(c)
Adjustment if Any Payment Exceeds Lawful Rate. If any provision of this Agreement or any of the other Credit Documents
would obligate the Borrower to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate
which would be prohibited by any Applicable Law, or would result in receipt by an Agent or Lender of interest at a rate prohibited by
any Applicable Law, then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect
to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by Applicable Law (in the case of the Borrower),
such adjustment to be effected, to the extent necessary, as follows:
(i)
firstly, by reducing the amount or rate of interest required to be paid by the Borrower to the affected Lender under Section
2.8; and
(ii)
thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid by the Borrower to the affected
Lender.
Notwithstanding the foregoing, and
after giving pro forma effect to all adjustments contemplated thereby, if any Lender shall have received from the Borrower an amount in
excess of the maximum permitted by any Applicable Law, then the Borrower shall be entitled, by notice in writing to the Administrative
Agent, to obtain reimbursement from such Lender in an amount equal to such excess, and pending such reimbursement, such amount shall be
deemed to be an amount payable by such Lender to the Borrower.
SECTION
6. Conditions Precedent to Initial Credit Event. The occurrence of the initial Credit Event is subject to the
satisfaction of the following conditions precedent:
6.1
Credit Documents. The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles
(followed promptly by originals), or electronic copies unless otherwise specified, each properly executed by an Authorized Officer of
the signing Credit Party:
(a)
this Agreement, executed and delivered by (i) an Authorized Officer of each of Holdings and the Borrower, (ii) each Agent,
(iii) each Lender, (iv) the Swingline Lender and (v) each Letter of Credit Issuer;
(b)
the Guarantee, executed and delivered by an Authorized Officer of each Person that is a Guarantor as of the Closing Date;
(c)
the Security Agreement, executed and delivered by an Authorized Officer of Holdings, the Borrower and each other grantor
party thereto as of the Closing Date;
(d)
the Pledge Agreement, executed and delivered by an Authorized Officer of the Borrower and each other pledgor party thereto;
and
(e)
such certificates of good standing (to the extent such concept exists) from the applicable secretary of state or other relevant
Governmental Authority of the jurisdiction of organization of each Credit Party.
6.2 Collateral.
(a)
All Capital Stock of the Borrower and all Capital Stock of each wholly owned Restricted Subsidiary of the Borrower directly
owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to the Pledge
Agreement (except that such Credit Parties shall not be required to pledge any Excluded Capital Stock) and the Collateral Agent shall
have received all certificates, if any, (except as permitted by Section 9.17) representing such securities pledged under the Pledge Agreement,
accompanied by instruments of transfer and undated stock powers endorsed in blank.
(b)
(i) Except with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount
in excess of $5,000,000 (individually) that is owing to Holdings, the Borrower or any Subsidiary Guarantor shall be evidenced by a promissory
note and shall have been pledged pursuant to the Pledge Agreement, and the Collateral Agent shall have received all such promissory notes,
together with undated instruments of transfer with respect thereto endorsed in blank.
(ii) All
Indebtedness of Holdings, the Borrower and each Restricted Subsidiary on the Closing Date that is owing to any Credit Party shall be
evidenced by the Intercompany Note, which shall be executed and delivered by Holdings, the Borrower and each Restricted Subsidiary on
the Closing Date and shall have been pledged pursuant to the Pledge Agreement, and the Collateral Agent shall have received such Intercompany
Note, together with undated instruments of transfer with respect thereto endorsed in blank; provided, however, that, if
the Intercompany Note cannot be delivered to the Collateral Agent on or prior to the Closing Date notwithstanding the Borrower’s
use of commercially reasonable efforts to do so, delivery thereof shall not be a condition to closing, and in such case the Borrower
agrees to deliver same to the Collateral Agent not later than 90 days following the Closing Date (or such later date as the Collateral
Agent shall agree in its discretion).
(c)
All documents and instruments, including UCC or other applicable personal property security financing statements and Intellectual
Property Security Agreements (as defined in the Security Agreement), required by Applicable Law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents on the Collateral owned
by the Borrower and the Guarantors and perfect such Liens in the United States to the extent required by, and with the priority required
by, the Security Documents shall have been filed, registered or recorded or delivered to the Collateral Agent in appropriate form for
filing, registration or recording under the UCC and with the United States Patent and Trademark Office or the United States Copyright
Office, as applicable.
(d)
The Collateral Agent shall have received a completed Perfection Certificate, dated as of the Closing Date and signed by
an Authorized Officer of the Borrower, together with all attachments contemplated thereby.
Notwithstanding anything to
the contrary contained in this Agreement or the other Credit Documents, to the extent any security interest in any Collateral is not
or cannot be provided and/or perfected on the Closing Date (other than the pledge and perfection of the security interests (i) in the
certificated Capital Stock, if any, of the Borrower and any wholly owned Domestic Restricted Subsidiary that is not an Immaterial Subsidiary
(to the extent required by Section 6.2(a)) and (ii) in other assets pursuant to which a security interest may be perfected by the filing
of a financing statement under the UCC) after the Borrower’s use of commercially reasonable efforts to do so or without undue burden
or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition to the initial
Credit Event to occur on the Closing Date and the Borrower agrees to deliver or cause to be delivered such documents and instruments,
and take or cause to be taken such other actions as may be required to provide and/or perfect such security interests, with respect to
any certificated Capital Stock of the Target or Amplify or any wholly owned material U.S. restricted subsidiary of the Target or Amplify
not delivered on the Closing Date, on or prior to the date that is 5 Business Days after the Closing Date, and with respect to any other
such Collateral not actually received from the Target or Amplify on or prior to the Closing Date after use of commercially reasonably
efforts to procure delivery thereof, on or prior to the date that is 90 days after the Closing Date or, in each case, such longer period
of time as may be mutually agreed by the Collateral Agent and the Borrower, each acting reasonably.
6.3
Legal Opinions. The Administrative Agent shall have received the executed legal opinions of (a) Simpson Thacher
& Bartlett LLP, New York counsel to Holdings, the Borrower and its Subsidiaries and (b) K&L Gates LLP, North Carolina counsel
to Holdings, the Borrower and its Subsidiaries, in each case in form and substance reasonably satisfactory to the Administrative Agent.
6.4 Structure
and Terms of the Transaction; No Material Adverse Effect.
(a)
The Mergers shall have been consummated, or shall be consummated substantially simultaneously with, the initial Credit Event
hereunder to occur on the Closing Date, in all material respects in accordance with the terms of the Acquisition Agreement, after giving
effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements,
consents, waivers or requests (including the effects of any such requests) by Holdings (and/or its affiliates) that are materially adverse
to the interests of the Lenders or the Joint Bookrunners, unless consented to in writing by the Joint Bookrunners (such consent not to
be unreasonably withheld or delayed).
(b)
The Equity Contribution shall have been made, or shall be made substantially simultaneously with, the initial Credit Event
hereunder to occur on the Closing Date, in at least the amount set forth in the third recital to this Agreement.
(c)
The Existing Debt Refinancing shall have been consummated, or shall be consummated substantially simultaneously with, the
initial Credit Event hereunder to occur on the Closing Date.
(d)
Since the date of the Acquisition Agreement, there shall have been no Material Adverse Effect (as defined in the Acquisition
Agreement).
6.5
Closing Certificates. The Administrative Agent shall have received a certificate of each Person that is a Credit
Party as of the Closing Date, dated the Closing Date, substantially in the form of Exhibit E, with appropriate insertions, executed by
two Authorized Officers of such Credit Party, and attaching the documents
referred to in Sections 6.6 and 6.7.
6.6
Corporate Proceedings. The Administrative Agent shall have received a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the Board of Directors or other governing body, as applicable, of each Person
that is a Credit Party as of the Closing Date (or a duly authorized committee thereof) authorizing (a) the execution, delivery and performance
of the Credit Documents (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the extensions
of credit contemplated hereunder.
6.7
Corporate Documents. The Administrative Agent shall have received true and complete copies of the Organizational
Documents of each Person that is a Credit Party as of the Closing Date.
6.8
Solvency Certificate. The Administrative Agent shall have received a certificate from the chief financial officer
of the Borrower substantially in the form of Exhibit J.
6.9
Financial Statements. The Administrative Agent and the Joint Bookrunners shall have received the Historical Financial
Statements and the Pro Forma Financial Statements.
6.10
PATRIOT ACT. The Administrative Agent and the Joint Bookrunners shall have received, at least three Business Days
prior to the Closing Date, all documentation and other information about Holdings, the Borrower and the other Guarantors that shall have
been reasonably requested by the Administrative Agent or the Joint Bookrunners in writing at least 10 Business Days prior to the Closing
Date and that the Administrative Agent and the Joint Bookrunners reasonably determine is required by United States regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT
ACT.
6.11
Fees and Expenses. All fees required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee
Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee Letter,
and with respect to expenses to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably
agreed by the Borrower), shall, upon the initial borrowings under the Credit Facilities, have been, or will be substantially simultaneously,
paid (which amounts may be offset against the proceeds of the Credit Facility).
6.12
Specified Representations. The Specified Representations and the Specified Acquisition Agreement Representations
shall be true and correct in all material respects on and as of the Closing Date (except where such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects
as of such earlier date); provided that, with respect to the Specified Representations made on the Closing Date, to the extent
that such representations are qualified by “Material Adverse Effect”, the definition of “Material Adverse Effect”
applicable to such qualifications shall be the definition of “Material Adverse Effect” set forth in the Acquisition Agreement
and not the definition of “Material Adverse Effect” set forth in this Agreement.
Without
limiting the generality of the provisions of the last paragraph of Section 12.3, for purposes of determining compliance with the
conditions specified in this Section 6, each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed
Closing Date specifying its objection thereto.
SECTION 7. Conditions
Precedent to All Credit Events.
7.1
No Default; Representations and Warranties. The agreement of each Lender to make any Loan requested to be made by
it on any date (excluding Mandatory Borrowings and Revolving Credit Loans made pursuant to Section 2.1(d)(ii) or pursuant to Section
3.4(a) which shall each be made without regard to the satisfaction of the condition set forth in this Section 7 and excluding borrowings
made pursuant to Section 2.14, Section 2.15 and/or Section 2.17, which may be subject to different conditions precedent and representations,
but only if so agreed by the Borrower and the applicable Lenders) and the obligation of the Letter of Credit Issuer to issue, amend,
extend or renew Letters of Credit on any date is subject to the satisfaction of the condition precedent that at the time of each such
Credit Event and also after giving effect thereto (a) except in the case of the initial Credit Event to occur on the Closing Date, no
Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Credit Event and (b)
except in the case of the initial Credit Event to occur on the Closing Date, all representations and warranties made by any Credit Party
contained herein or in the other Credit Documents shall be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such Credit Event (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material
respects as of such earlier date, and except where such representations and warranties are qualified by materiality, “Material
Adverse Effect” or similar language, in which case such representations and warranties shall be true and correct in all respects).
The acceptance of the benefits of each such Credit Event shall constitute a representation and warranty by each Credit Party to each
of the Lenders that the conditions contained in this Section 7.1 have been met as of such date.
7.2 Notice
of Borrowing; Letter of Credit Request.
(a)
Prior to the making of each Term Loan, each Revolving Credit Loan (other than any Revolving Credit Loan made pursuant to
Section 2.1(d)(ii) or pursuant to Section 3.4(a)), each Additional/Replacement Revolving Credit Loan and each Extended Revolving Credit
Loan and each Swingline Loan, the Administrative Agent shall have received a written Notice of Borrowing meeting the requirements of Section
2.3.
(b)
Prior to the issuance of each Letter of Credit, the Administrative Agent and the Letter of Credit Issuer shall have received
a Letter of Credit Request meeting the requirements of Section 3.2(a).
SECTION
8. Representations, Warranties and Agreements. In order to induce the Lenders to enter into this Agreement, make the
Loans and issue, renew, amend, extend or participate in Letters of Credit as provided for herein, each of Holdings and the Borrower makes
the following representations and warranties to, and agreements with, the Lenders and the Letter of Credit Issuer, all of which shall
survive the execution and delivery of this Agreement, the making of the Loans and the issuance, renewal, amendment or extension of the
Letters of Credit:
8.1
Corporate Status. Holdings, the Borrower and each Restricted Subsidiary (a) is a duly organized and validly existing
corporation or other entity in good standing under the laws of the jurisdiction of its organization or formation and has the corporate
or other organizational power and authority to own its property and assets and to transact the business in which it is engaged and (b)
has duly qualified and is authorized to do business and is in good standing (to the extent such concept is applicable in the corresponding
jurisdiction) in all jurisdictions where it is required to be so qualified, except, in the case of clauses (a) and (b), where the failure
to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
8.2
Corporate Power and Authority; Enforceability. Each Credit Party has the corporate or other organizational power
and authority to execute, deliver and carry out the terms and provisions of the Credit Documents to which it is a party and has taken
all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Credit Documents to
which it is a party. Each Credit Party has duly executed and delivered each Credit Document to which it is a party and each such Credit
Document constitutes the legal, valid and binding obligation of such Credit Party enforceable in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting
the enforceability of creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity
or law). Holdings, the Borrower and each of the Restricted Subsidiaries (a) is in compliance with all Applicable Laws and (b) has all
requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted except, in each
case to the extent that failure to be in compliance therewith or to have all such licenses, authorizations, consents and approvals could
not reasonably be expected to have a Material Adverse Effect.
8.3
No Violation. The execution, delivery and performance by any Credit Party of the Credit Documents to which it is
a party and compliance with the terms and provisions hereof and thereof will not (a) contravene any material applicable provision of any
material Applicable Law of any Governmental Authority, (b) result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any
obligation under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property
or assets of any of Holdings, the Borrower or any of the Restricted Subsidiaries (other than Liens created under the Credit Documents)
pursuant to, the terms of any indenture, loan agreement, lease agreement, mortgage or deed of trust or any other Contractual Obligation
to which Holdings, the Borrower or any of their Restricted Subsidiaries is a party or by which they or any of their property or assets
is bound, except to the extent that any such conflict, breach, contravention, default, creation or imposition could not reasonably be
expected to result in a Material Adverse Effect or (c) violate any provision of the Organizational Documents of Holdings, the Borrower
or any of their Restricted Subsidiaries.
8.4
Litigation. There are no actions, suits, investigations or proceedings (including Environmental Claims) pending or,
to the knowledge of Holdings or the Borrower, threatened, in either case with respect to Holdings, the Borrower or any of the Restricted
Subsidiaries that (a) involve any of the Credit Documents or (b) could reasonably be expected to result in a Material Adverse Effect.
8.5
Margin Regulations. Neither the making of any Loan hereunder nor the use of the proceeds thereof will violate the
provisions of Regulation T, Regulation U or Regulation X of the Board.
8.6
Governmental and Third Party Approvals. No order, consent, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, any Governmental Authority or any other Person is required to authorize or is
required in connection with (a) the execution, delivery and performance of any Credit Document or (b) the legality, validity, binding
effect or enforceability of any Credit Document, except, in the case of either clause (a) or (b), (i) such orders, consents, approvals,
licenses, authorizations, validations, filings, recordings, registrations or exemptions as have been obtained or made and are in full
force and effect, (ii) filings and recordings in respect of Liens created pursuant to the Security Documents and (iii) such orders, consents,
approvals, licenses, authorizations, validations, filings, recordings, registrations or exemptions to the extent that failure to so receive
could not reasonably be expected to result in a Material Adverse Effect.
8.7
Investment Company Act. None of the Credit Parties is an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
8.8 True
and Complete Disclosure.
(a)
None of the written factual information or written factual data (taken as a whole) heretofore or contemporaneously furnished
by Holdings, the Borrower, any of their respective Subsidiaries or any of their respective authorized representatives in writing to any
Agent or any Lender on or before the Closing Date (including all such information contained in the Confidential Information Memorandum
(and all information incorporated by reference therein) and in the Credit Documents) for purposes of, or in connection with, this Agreement
or any transaction contemplated herein contained any untrue statement of material fact or omitted to state any material fact necessary
to make such information and data (taken as a whole) not materially misleading at such time (after giving effect to all supplements so
furnished from time to time) in light of the circumstances under which such information or data was furnished; it being understood and
agreed that for purposes of this Section 8.8(a), such factual information and data shall not include projections (including financial
estimates, forecasts and other forward- looking information), pro forma financial information or information of a general economic or
industry specific nature.
(b)
The projections contained in the information and data referred to in Section 8.8(a) were prepared in good faith based upon
assumptions believed by Holdings and the Borrower to be reasonable at the time made; it being recognized by the Agents and the Lenders
that such projections are as to future events and are not to be viewed as facts, the projections are subject to significant uncertainties
and contingencies, many of which are beyond the control of Holdings, the Borrower and the Restricted Subsidiaries, that no assurance can
be given that any particular projections will be realized and that actual results during the period or periods covered by any such projections
may differ from the projected results and such differences may be material.
8.9 Financial
Statements.
(a)
The Historical Financial Statements present fairly in all material respects the financial position and results of operations
of Wirepath Home Systems Holdco LLC (or the predecessor thereto) and its Subsidiaries at the respective dates of such information and
for the respective periods covered thereby and have been prepared in accordance with GAAP consistently applied, except to the extent provided
in the notes thereto, and subject, in the case of the unaudited financial information, to changes resulting from audit, normal year-end
audit adjustments and to the absence of footnotes and the inclusion of any explanatory note.
(b)
The unaudited pro forma consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of March 31, 2017
(including any notes thereto) (the “Pro Forma Balance Sheet”) and the unaudited pro forma consolidated statement of
operations of the Borrower and its consolidated Subsidiaries for the 12 month period ending on March 31, 2017 (together with the Pro Forma
Balance Sheet, the “Pro Forma Financial Statements”), copies of which have heretofore been furnished to the Administrative
Agent, has been prepared giving pro forma effect (as if such events had occurred on such date or the beginning of such period, as the
case may be) to the consummation of all of the Transactions. The Pro Forma Financial Statements have been prepared in good faith based
upon assumptions believed by the Borrower to be reasonable as of the date of delivery thereof to the Administrative Agent, and, subject
to the qualifications and limitations contained in the notes attached thereto, present fairly in all material respects on a pro forma
basis, the estimated financial position of the Borrower and its consolidated Subsidiaries as at March 31, 2017 and their estimated results
of operations for the periods covered thereby, assuming that the events specified in the preceding sentence had actually occurred at such
date or at the beginning of the periods covered thereby; provided that it is understood that the Pro Forma Financial Statements
have not been prepared in compliance with Regulation S-X of the Securities Act, and/or do not include adjustments for purchase accounting
(including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business
Combinations (formerly SFAS 141R)), tax adjustments, deferred taxes or other similar pro forma adjustments.
Each Lender
and each Agent hereby acknowledges and agrees that the Borrower and its Subsidiaries may be required to restate the Historical Financial
Statements as the result of the implementation of changes in GAAP or the interpretation thereof, and that such restatements will not
result in a Default under the Credit Documents under Section 11.2 (including any effect on any conditions required to be satisfied on
the Closing Date) to the extent that the restatements do not reveal any material omission, misstatement or other material inaccuracy
in the reported information from actual results for any relevant prior period.
8.10
Tax Returns and Payments, Etc. (a) Holdings, the Borrower and each of the Restricted Subsidiaries have filed all
U.S. federal income tax returns and all other material tax returns, domestic and foreign, required to be filed by them and have paid all
material taxes and assessments payable by them that have become due, other than those not yet delinquent or being diligently contested
in good faith by appropriate proceedings and for which adequate reserves have been established on the applicable financial statements
in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction and (b) each of Holdings, the Borrower
and the Restricted Subsidiaries have paid, or have provided adequate reserves (in the good-faith judgment of the management of the Borrower)
in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction for the payment of, all material U.S.
federal, state, and foreign income taxes applicable for all prior fiscal years and for the current fiscal year to the Closing Date, except
in the case of either of clauses (a) or (b), to the extent that the failure to be in compliance therewith could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
8.11
Compliance with ERISA. Except as would not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect: (a) each Pension Plan is in compliance with ERISA, the Code and any Applicable Law; (b) no Reportable Event has occurred
(or is reasonably likely to occur); (c) no Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA
(or is reasonably likely to be insolvent), and no written notice of any such insolvency has been given to any of Holdings, the Borrower,
any of the Restricted Subsidiaries or any ERISA Affiliate; (d) none of Holdings, the Borrower, any of the Restricted Subsidiaries or
any ERISA Affiliate has failed to satisfy the minimum funding standard under Section 412 of the Code and Section 302 of ERISA with respect
to any Pension Plan, or has otherwise failed to make a required contribution to a Multiemployer Plan, whether or not waived (or is reasonably
likely to fail to satisfy such minimum funding standard or make such required contribution); (e) no Pension Plan is, or is expected to
be, in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA and no Multiemployer Plan is,
or is expected to be, in “endangered or critical status” within the meaning of Section 432 of the Code or Section 305 of
ERISA; (f) none of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate has incurred (or is reasonably likely
to incur) any liability to or on account of a Pension Plan or Multiemployer Plan, as applicable, pursuant to Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code or has been notified in writing that it will incur
any liability under any of the foregoing Sections with respect to any Pension Plan or Multiemployer Plan; (g) no proceedings by the PBGC
have been instituted (or are reasonably likely to be instituted) to terminate or to reorganize any Pension Plan or Multiemployer Plan
or to appoint a trustee to administer any Pension Plan or Multiemployer Plan, and no written notice of any such proceedings has been
given to any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate; (h) the conditions for imposition
of a Lien that could be imposed under the Code or ERISA on the assets of any of Holdings, the Borrower, any of the Restricted Subsidiaries
or any ERISA Affiliate with respect to a Pension Plan do not exist (or are not reasonably likely to exist) nor has Holdings, the Borrower,
any of the Restricted Subsidiaries or any ERISA Affiliate been notified in writing that such a lien will be imposed on the assets of
any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate on account of any Pension Plan; and (i) each
Foreign Plan is in compliance with Applicable Laws (including funding requirements under such Applicable Laws), and no proceedings have
been instituted to terminate any Foreign Plan which would reasonably be expected to give rise to liability for Holdings, the Borrower
or any Restricted Subsidiary. No Pension Plan has an Unfunded Current Liability that would, individually or when taken together with
any other liabilities incurred or reasonably likely to be incurred by Holdings, the Borrower, any of the Restricted Subsidiaries or any
ERISA Affiliate as referenced in this Section 8.11, be reasonably likely to have a Material Adverse Effect. With respect to Multiemployer
Plans, the representations and warranties in this Section 8.11, other than any made with respect to (i) liability under Section 4201
or 4204 of ERISA, (ii) any contribution required to be made, or (iii) liability for termination of any such Multiemployer Plan under
ERISA, are made to the best knowledge of the Borrower.
8.12
Subsidiaries. On the Closing Date, after giving effect to the Transactions, Holdings does not have any Subsidiaries
other than the Subsidiaries listed on Schedule 8.12. Schedule 8.12 sets forth, as of the Closing Date, after giving effect to the Transactions,
the name and the jurisdiction of organization of each Subsidiary and, as to each Subsidiary, the percentage of each class of Capital
Stock owned by any Credit Party and the designation of such Subsidiary as a Guarantor, a Restricted Subsidiary, an Unrestricted Subsidiary,
a Specified Subsidiary or an Immaterial Subsidiary. The Borrower does not own or hold, directly or indirectly, any Capital Stock of any
Person other than such Subsidiaries and Investments permitted by Section 10.5.
8.13
Intellectual Property. Each of Holdings, the Borrower and each of the Restricted Subsidiaries owns, has good and
marketable title to, or has a valid license or otherwise has the right to use, any and all Intellectual Property, that is used in, held
for use in or that is otherwise necessary for the operation of their respective businesses as currently conducted, free and clear of
all Liens (other than Liens permitted by Section 10.2), except where the failure to own, or have any such title, license or rights could
not reasonably be expected to have a Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse Effect,
(i) to the Borrower’s knowledge, the operation of the businesses conducted by each of the Borrower and the Restricted Subsidiaries,
and the Intellectual Property now employed by any of the Credit Parties does not infringe upon, misappropriate, or otherwise violate
any Intellectual Property rights owned by any other Person, and (ii) no material written claim has been received by Holdings, the Borrower,
or any of the Restricted Subsidiaries, and no litigation regarding the foregoing is pending or, to the Borrower’s knowledge, threatened
in writing, in either case against the Borrower or any of the Restricted Subsidiaries.
8.14 Environmental
Laws.
(a)
Except as could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect,
(i) Holdings, the Borrower and each of the Restricted Subsidiaries are and have been in compliance with all Environmental Laws (including
having obtained and complied with all permits required under Environmental Laws for their current operations); (ii) to the knowledge of
Holdings or the Borrower, there are no facts, circumstances or conditions arising out of or relating to the operations of Holdings, the
Borrower or any of the Restricted Subsidiaries or any currently or formerly owned, operated or leased Real Property that would reasonably
be expected to result in Holdings, the Borrower or any of the Restricted Subsidiaries incurring liability under any Environmental Law;
and (iii) none of Holdings, the Borrower or any of the Restricted Subsidiaries has become subject to any pending or, to the knowledge
of Holdings or the Borrower, threatened Environmental Claim or, to the knowledge of the Borrower, any other liability under any Environmental
Law.
(b)
None of Holdings, the Borrower or any of the Restricted Subsidiaries has treated, stored, transported or Released Hazardous
Materials at or from any currently or formerly owned, operated or leased Real Property in a manner that could reasonably be expected to
have a Material Adverse Effect.
8.15 Properties,
Assets and Rights.
(a) As
of the Closing Date and as of the date of each Credit Event thereafter, each of Holdings, the Borrower and each of the Restricted
Subsidiaries has good and marketable title to, valid leasehold interest in, or easements, licenses or other limited property
interests in, all properties (other than Intellectual Property) that are necessary for the operation of their respective businesses
as currently conducted, except where the failure to have such good title or interest in such property could not reasonably be
expected to have a Material Adverse Effect. None of such properties and assets is subject to any Lien, except for Liens permitted
under Section 10.2.
(b)
Set forth on Schedule 8.15 hereto is a complete and accurate list of all Real Property owned in fee by the Credit Parties
on the Closing Date, showing as of the Closing Date the street address, county or other relevant jurisdiction, state and record owner
thereof.
(c)
All permits required to have been issued or appropriate to enable all Real Property of the Credit Parties to be lawfully
occupied and used for all of the purposes for which they are currently occupied and used have been lawfully issued and are in full force
and effect, other than those permits the failure of which to be issued or to so enable lawful occupation and use could not reasonably
be expected to have a Material Adverse Effect.
8.16
Solvency. On the Closing Date after giving pro forma effect to the Transactions, the Credit Parties and their Subsidiaries
on a consolidated basis are Solvent.
8.17
Material Adverse Change. Since the Closing Date there have been no events or developments that have had or could
reasonably be expected to have a Material Adverse Effect.
8.18
Use of Proceeds. The proceeds of (a) the Initial Term Loans (other
than the Tranche B Term Loans made on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement)
and the Initial Revolving Borrowing Amount shall be used (i)
on the Closing Date, together with cash on hand at the Target and its Subsidiaries and the proceeds from the Equity Contribution to pay
the Merger Consideration, the Existing Debt Refinancing and/or the Transaction Expenses and (ii) to the extent any proceeds remain after
the application described in clause (i), will be used on and after the Closing Date for other general corporate purposes of the Borrower
and its Subsidiaries and (b) Revolving Credit Loans available under any Revolving Credit Facility, together with the proceeds of the
Swingline Loans and the Letters of Credit, will be used for working capital requirements and other general corporate purposes of the
Borrower and its Subsidiaries, including the financing of acquisitions, other Investments and Restricted Payments and other distributions
on account of the Capital Stock of the Borrower (or any Parent Entity thereof), in each case permitted hereunder, and any other use not
prohibited hereby. The proceeds
of the Tranche B Term Loans made on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement shall
be used on the First Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans outstanding hereunder as of the
First Incremental Agreement Effective Date (immediately prior to giving effect to the First Incremental Agreement), all accrued and unpaid
interest thereon and all other Obligations in respect thereof and (b) to pay the fees, expenses and other amounts incurred in connection
with the transactions contemplated by the First Incremental Agreement.
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8.19
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Anti-Corruption
Laws.
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(a)
The Borrower and each other Credit Party and their respective Restricted Subsidiaries are in compliance with the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), except to the extent
that the failure to be in compliance would not reasonably be expected to result in a Material Adverse Effect.
(b)
None of the Borrower or any other Credit Party will use the proceeds of the Loans or the Letters of Credit or otherwise
make available such proceeds to any Person for the purposes of any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain
or direct business or obtain any improper advantage, in violation of the FCPA.
(a)
None of the Borrower, any other Credit Party or any of their respective Restricted Subsidiaries is currently the target
of any U.S. sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)
of the U.S. Treasury Department or the U.S. Department of State.
(b)
None of the Borrower or any other Credit Party will use the proceeds of the Loans or the Letters of Credit or otherwise
make available such proceeds to any Person for use in any manner that will result in a violation by any Lender of any U.S. sanctions administered
by OFAC or the U.S. Department of State.
8.21
PATRIOT Act. Except to the extent as could not reasonably be expected to have a Material Adverse Effect, neither
the Borrower nor any other Credit Party is in violation of any Applicable Laws relating to money laundering, including the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT ACT”).
8.22 Labor
Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (a)
there are no strikes or other labor disputes against any of the Borrower or the Restricted Subsidiaries pending or, to the knowledge
of the Borrower, threatened in writing and (b) none of the Borrower or the Restricted Subsidiaries have been in violation of the
Fair Labor Standards Act or any other Applicable Laws dealing with wage and hour matters.
8.23
Subordination of Junior Financing. The Obligations are “Designated Senior Debt” (if applicable), “Senior
Debt”, “Senior Indebtedness”, “Guarantor Senior Debt” or “Senior Secured Financing” (or any
comparable term) under, and as defined in, any indenture or document governing any Junior Debt.
8.24
No Default. As of the date of any Credit Event after the Closing Date, no Default has occurred and is continuing.
SECTION
9.
Affirmative Covenants. The Borrower (and, in the case of Section 9.14, Holdings) hereby covenants and agrees that,
on the Closing Date and thereafter, until the Total Commitment and all Letters of Credit have terminated (unless such Letters of
Credit have been Cash Collateralized on the terms and conditions set forth in Section 3.8) and the Loans and Unpaid Drawings,
together with interest, fees and all other Obligations Incurred hereunder (other than Hedging Obligations under Secured Hedging
Agreements, Cash Management Obligations under Secured Cash Management Agreements and contingent indemnification obligations and
other contingent obligations not then due and payable), are paid in full:
9.1
Information Covenants. The Borrower will furnish to the Administrative Agent for prompt further distribution to each
Lender:
(a) Annual
Financial Statements. As soon as available and in any event on or before the date that is 120 days after the end of each fiscal
year (or, in the case of the fiscal year ended December 31, 2017, the date that is 150 days after the end of such fiscal year), the
consolidated balance sheet of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and its Restricted
Subsidiaries, in each case as at the end of such fiscal year, and the related consolidated statement of income and cash flows for
such fiscal year, setting forth for each fiscal year (other than the fiscal year ended December 31, 2017 (with respect to which, for
the avoidance of doubt, no comparative consolidated figures or reconciliations will be required)) comparative consolidated figures
for the preceding fiscal year (or, in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a
detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand,
and the Borrower and its consolidated Subsidiaries, on the other hand), all in reasonable detail and prepared in all material
respects in accordance with GAAP (except as otherwise disclosed in such financial statements) and, except with respect to any such
reconciliation, reported on by independent registered public accountants of recognized national standing with an unmodified report
by such independent registered public accountants without an emphasis of matter paragraph related to going concern as defined by
Statement on Accounting Standards AU-C Section 570 “The Auditor’s Consideration of an Entity’s Ability to Continue
as a Going Concern” (or any similar statement under any amended or successor rule as may be adopted by the Auditing Standards
Board from time to time) (other than solely with respect to, or expressly resulting solely from, an upcoming maturity date under the
documentation governing any Indebtedness), and, for the avoidance of doubt, without modification as to the scope of audit, together
in any event with a certificate of such accounting firm stating that in the course of its regular audit of the business of the
Borrower and its consolidated Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Event of Default relating to the Financial Performance Covenant that has occurred
and is continuing or, if in the opinion of such accounting firm such an Event of Default has occurred and is continuing, a statement
as to the nature thereof. Notwithstanding the foregoing, the obligations in this Section 9.1(a) may be satisfied with respect to
financial information of the Borrower and its consolidated Subsidiaries by furnishing (A) the applicable financial statements of
Holdings (or any Parent Entity of Holdings), (B) the Borrower’s or Holdings’ (or any Parent Entity thereof), as
applicable, Form 10-K filed with the SEC or (C) following an election by the Borrower pursuant to the definition of
“GAAP”, the applicable financial statements shall be determined in accordance with IFRS; provided that, with
respect to each of clauses (A) and (B), (i) to the extent such information relates to Holdings (or such Parent Entity), such
information is accompanied by consolidating information that explains in reasonable detail the differences between the information
relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and its consolidated
Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is in lieu of information required to
be provided under the first sentence of this Section 9.1(a), such materials shall be reported on by an independent registered public
accounting firm of recognized national standing, with an unmodified report by such independent registered public accountants without
an emphasis of matter paragraph related to going concern as defined by Statement on Accounting Standards AU-C Section 570 “The
Auditor’s Consideration of an Entity’s Ability to Continue as a Going Concern” (or any similar statement under any
amended or successor rule as may be adopted by the Auditing Standards Board from time to time) (other than solely with respect to,
or expressly resulting solely from, an upcoming maturity date under the documentation governing any Indebtedness) (it being
understood that there shall be no obligation to audit any such consolidating information), and, for the avoidance of doubt, without
modification as to the scope of audit.
(b) Quarterly
Financial Statements. As soon as available and in any event on or before the date that is 45 days after the end of each of the
first three quarterly accounting periods in each fiscal year of the Borrower (or, in the case of each of the quarters ending
September 30, 2017, March 31, 2018 and June 30, 2018, the date that is 60 days after the end of such quarter), the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in
each case as at the end of such quarterly period and the related consolidated statement of income for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and the related consolidated
statement of cash flows for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting
forth (other than for the quarterly periods ending September 30, 2017, March 31, 2018 and June 30, 2018 (with respect to which, for
the avoidance of doubt, no comparative consolidated figures or reconciliations will be required)) comparative consolidated figures
for the related periods in the prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the prior
fiscal year (or in lieu of such financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation,
reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and its
consolidated Subsidiaries on the other hand), all in reasonable detail and all of which shall be certified by an Authorized Officer
of the Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of the
Borrower and its consolidated Subsidiaries (and, if applicable, the Borrower and the Restricted Subsidiaries) in accordance with
GAAP, subject to changes resulting from audit and normal year-end audit adjustments and to the absence of footnotes and the
inclusion of any explanatory note. Notwithstanding the foregoing, the obligations in this Section 9.1(b) may be satisfied with
respect to financial information of the Borrower and its consolidated Subsidiaries by furnishing (A) the applicable financial
statements of Holdings (or any Parent Entity thereof) or (B) the Borrower’s or Holdings’ (or any Parent Entity thereof),
as applicable, Form 10-Q filed with the SEC; provided that, with respect to each of clauses (A) and (B), to the extent such
information relates to Holdings (or any such Parent Entity), such information is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand,
and the information relating to the Borrower and its consolidated Subsidiaries on a standalone basis (and, if different, the
Borrower and the Restricted Subsidiaries), on the other hand.
(c) Budget.
No later than five Business Days following the delivery by the Borrower of the financial statements required under Section 9.1(a),
beginning at the time of the delivery of such financial statements for the fiscal year ending December 31, 2017, a detailed
quarterly budget of the Borrower and its Restricted Subsidiaries in reasonable detail for the current fiscal year as customarily
prepared by management of the Borrower for its internal use (but including, in any event, only a projected consolidated statement of
income of the Borrower and its Restricted Subsidiaries for the current fiscal year and not a projected consolidated balance sheet or
statement of projected cash flow) and setting forth the principal assumptions upon which such budget is based (provided, that
no such budgets shall be required to be delivered for the fiscal year which began January 1, 2017). It is understood and agreed that
any financial or business projections furnished by any Credit Party (i)(A) are subject to significant uncertainties and
contingencies, which may be beyond the control of the Credit Parties, (B) no assurance is given by the Credit Parties that the
results or forecast in any such projections will be realized and (C) the actual results may differ from the forecast results set
forth in such projections and such differences may be material and (ii) are not a guarantee of performance.
(d) Officer’s
Certificates. No later than five Business Days following the delivery of the financial statements provided for in Sections
9.1(a) and 9.1(b), a certificate of an Authorized Officer of the Borrower to the effect that no Default or Event of Default exists
or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i)
during any fiscal quarter during which the Financial Performance Covenant is applicable, the calculations required to establish
whether the Borrower was in compliance with the provisions of the Financial Performance Covenant as at the end of such fiscal year
or period, as the case may be, beginning with the fiscal period ending December 31, 2017, if required, (ii) a specification of any
change in the identity of the Guarantors, the Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries,
the Immaterial Subsidiaries and the Foreign Subsidiaries as at the end of such fiscal year or period, as the case may be, from the
Guarantors, Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the
Foreign Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent fiscal year or period, as the
case may be, and (iii) the then applicable Applicable Margins and Commitment Fee Rate. At the time of the delivery of the financial
statements provided for in Section 9.1(a) beginning with the fiscal year ended December 31, 2018, a certificate of an Authorized
Officer of the Borrower setting forth in reasonable detail the calculation of Excess Cash Flow, the Available Amount and the
Available Equity Amount as at the end of the fiscal year to which such financial statements relate.
(e)
Notice of Certain Events. Promptly after an Authorized Officer of Holdings, the Borrower or any of its Restricted
Subsidiaries obtains knowledge thereof, notice of the occurrence of (i) any event that constitutes a Default or an Event of Default, which
notice shall specify the nature thereof, the period of existence thereof and what action Holdings or the Borrower proposes to take with
respect thereto, and (ii) any litigation or governmental proceeding pending against Holdings, the Borrower or any of its Restricted Subsidiaries
that could reasonably be expected to result in a Material Adverse Effect.
(f) Other
Information. (i) Promptly upon filing thereof, (x) copies of any annual, quarterly and other regular, material periodic and
special reports (including on Form 10-K, 10-Q or 8-K) and registration statements which Holdings (or any Parent Entity thereof), the
Borrower or any Restricted Subsidiary files with the SEC or any analogous Governmental Authority in any relevant jurisdiction (other
than amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is
delivered to the Administrative Agent for further delivery to the Lenders), exhibits to any registration statement and, if
applicable, any registration statements on Form S-8 and other than any filing filed confidentiality with the SEC or any analogous
Governmental Authority in any relevant jurisdiction) and (y) copies of all financial statements, proxy statements, and material
reports that Holdings, the Borrower or any of the Restricted Subsidiaries shall send to the holders of any publicly issued debt of
Holdings, the Borrower and/or any of the Restricted Subsidiaries in their capacity as such holders (in each case to the extent not
theretofore delivered to the Administrative Agent for further delivery to the Lenders pursuant to this Agreement) and (ii) with
reasonable promptness, but subject to the limitations set forth in the last sentence of Section 9.2 and Section 13.16, such other
information (financial or otherwise) as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request
in writing from time to time.
Documents required to be
delivered pursuant to Sections 9.1(a), 9.1(b) and 9.1(f)(i) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s
website on the Internet at the website address listed on Schedule 13.2 or (ii) on which such documents are transmitted by electronic
mail to the Administrative Agent; provided that: (A) upon written request by the Administrative Agent, the Borrower shall
deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request
to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify (which may be by facsimile
or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the certificates required by Section 9.1(d) to the Administrative
Agent. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such
documents from the Administrative Agent and maintaining its copies of such documents.
9.2 Books,
Records and Inspections. The Borrower will, and will cause each of the Restricted Subsidiaries to, maintain proper books of
record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP
consistently applied shall be made of all material financial transactions and matters involving the assets and business of Holdings,
the Borrower or such Restricted Subsidiary, as the case may be. The Borrower will, and will cause each of the Restricted
Subsidiaries to, permit representatives and independent contractors of the Administrative Agent and the Required Lenders to visit
and inspect any of its properties (to the extent it is within such Person’s control to permit such inspection), to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all at the reasonable expense of the Borrower and at such
reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the
Borrower (and subject, in the case of any such meetings or advice from such independent accountants, to such accountants’
customary policies and procedures); provided that, excluding any such visits and inspections during the continuation of an
Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the
Required Lenders under this Section 9.2 and the Administrative Agent shall not exercise such rights more often than once during any
calendar year absent the existence of an Event of Default at the Borrower’s expense; and provided, further, that
when an Event of Default exists, the Administrative Agent or the Required Lenders (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and
upon reasonable advance notice. The Administrative Agent and the Required Lenders shall give the Borrower the opportunity to
participate in any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in
Section 9.1 or this Section 9.2, none of Holdings, the Borrower or any Restricted Subsidiary will be required to disclose, permit
the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that
constitutes non-financial trade secrets or non- financial proprietary information, (ii) in respect of which disclosure to any Agent
or any Lender (or their respective representatives or contractors) is prohibited by Applicable Law or any binding agreement or (iii)
that is subject to attorney-client or similar privilege or constitutes attorney work product.
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9.3
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Maintenance of Insurance.
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(a)
The Borrower will, and will cause each of the Restricted Subsidiaries to, at all times maintain in full force and effect, with
insurance companies that the Borrower believes (in the good-faith judgment of the management of the Borrower) are financially sound and
responsible at the time the relevant coverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance
which the Borrower believes (in the good-faith judgment of management of the Borrower) is reasonable and prudent in light of the size
and nature of its business) and against at least such risks (and with such risk retentions) as are usually insured against in the same
general area by companies engaged in businesses similar to those engaged by the Borrower and the Restricted Subsidiaries; and will furnish
to the Administrative Agent for further delivery to the Lenders, upon written request from the Administrative Agent, information presented
in reasonable detail as to the insurance so carried. The Collateral Agent, for the benefit of the Secured Parties, shall be the additional
insured on any such liability insurance and the Collateral Agent, for the benefit of the Secured Parties, shall be the additional loss
payee or additional mortgagee under any such casualty or property insurance, except in each case as the Collateral Agent and the Borrower
may otherwise agree.
(b) If
any buildings or improvements comprising of any Mortgaged Property are at any time located in an area identified by the Federal
Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been
made available under the Flood Insurance Laws, then the Borrower shall, or shall cause the applicable Credit Parties to, solely to
the extent required by Applicable Law, (i) maintain, or cause to be maintained, with a financially sound and reputable insurer
(determined at the time such insurance is obtained or renewed), flood insurance in an amount and otherwise sufficient to comply with
all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Collateral Agent
evidence of such compliance in form reasonably acceptable to the Collateral Agent.
9.4
Payment of Taxes. The Borrower will pay and discharge, and will cause each of the Restricted Subsidiaries to pay
and discharge, all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon
any properties belonging to it, prior to the date on which such payments become overdue, and all lawful material claims in respect of
taxes imposed, assessed or levied that, if unpaid, could reasonably be expected to become a material Lien upon any properties of the Borrower
or any of the Restricted Subsidiaries, except to the extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect; provided that none of the Borrower or any of the Restricted Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim that is being diligently contested in good faith and by proper proceedings if it has maintained
adequate reserves (in the good-faith judgment of the management of the Borrower) with respect thereto in accordance with GAAP or the equivalent
accounting principles in the relevant local jurisdiction.
9.5
Consolidated Corporate Franchises. The Borrower will do, and will cause each of the Restricted Subsidiaries to do,
or cause to be done, all things necessary to preserve and keep in full force and effect its existence, corporate rights, privileges and
authority, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect; provided,
however, that the Borrower and the Restricted
Subsidiaries may consummate any transaction
permitted under Section 10.3, 10.4 or 10.5.
9.6
Compliance with Statutes. The Borrower will, and will cause each Restricted Subsidiary to (a) comply with all Applicable
Laws, rules, regulations and orders applicable to it or its property, including, without limitation, (i) the FCPA, (ii) applicable Sanctions
and (iii) the PATRIOT Act, and (b) maintain in effect all governmental approvals or authorizations required to conduct its business, except
in the case of each of clauses (a) and (b), where the failure to do so, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
9.7 ERISA.
As soon as reasonably practicable after the Borrower or any of the Restricted Subsidiaries or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following events that, individually or in the aggregate (including in the aggregate
such events previously disclosed or exempt from disclosure hereunder, to the extent the liability therefor remains outstanding),
would be reasonably likely to have a Material Adverse Effect, the Borrower will deliver to the Administrative Agent a certificate of
an Authorized Officer or any other senior officer of the Borrower setting forth details as to such occurrence and the action, if
any, that the Borrower, such Restricted Subsidiary or such ERISA Affiliate is required or proposes to take, together with any
notices (required, proposed or otherwise) given to or filed with or by the Borrower, such Restricted Subsidiary, such ERISA
Affiliate, the PBGC, or a Multiemployer Plan administrator (provided that if such notice is given by the Multiemployer Plan
administrator, it is given to any of the Borrower or any of the Restricted Subsidiaries or any ERISA Affiliates thereof): (a) that a
Reportable Event has occurred; (b) that there has been a failure to satisfy the minimum funding standard under Section 412 of the
Code or Section 302 of ERISA or an application is to be made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an extension of any amortization period under Section 412
of the Code with respect to a Pension Plan; (c) that a Pension Plan having an Unfunded Current Liability has been or is to be
terminated under Title IV of ERISA (including the giving of written notice thereof); (d) that a Pension Plan has an Unfunded Current
Liability that has or will result in a Lien under ERISA or the Code on the assets of any of Holdings, the Borrower, any of the
Restricted Subsidiaries or any ERISA Affiliate; (e) that proceedings will be or have been instituted by the PBGC to terminate a
Pension Plan having an Unfunded Current Liability (including the giving of written notice thereof); (f) that a proceeding has been
instituted against the Borrower, a Restricted Subsidiary thereof or an ERISA Affiliate pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Multiemployer Plan; (g) that the PBGC has notified the Borrower, any Restricted Subsidiary thereof or
any ERISA Affiliate of its intention to appoint a trustee to administer any Pension Plan; (h) that the Borrower, any Restricted
Subsidiary thereof or any ERISA Affiliate has failed to make any required contribution or payment to a Multiemployer Plan; (i) that
a determination has been made that any Pension Plan is in “at-risk” status within the meaning of Section 430 of the Code
or Section 303 of ERISA or any Multiemployer Plan is in “endangered or critical status” within the meaning of Section
432 of the Code or Section 305 of ERISA; (j) that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has
incurred (or has been notified in writing by a Multiemployer Plan administrator that it will incur) any liability (including any
contingent or secondary liability) to or on account of a Pension Plan or Multiemployer Plan pursuant to Section 409, 502(i) 502(l),
515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code; (k) that a Pension Plan or Multiemployer
Plan is “insolvent” within the meaning of Section 4245 of ERISA; (l) that the termination of any Foreign Plan has
occurred that gives rise to liability for Holdings, the Borrower or any Restricted Subsidiary; or (m) that any non- compliance with
any funding requirements under Applicable Law for any Foreign Plan has occurred. Such certificate and notice shall be provided as
soon as reasonably practicable after the Borrower, any Restricted Subsidiary or any ERISA Affiliate knows or has reason to know of
the occurrence of any such event.
9.8
Good Repair. The Borrower will, and will cause each of the Restricted Subsidiaries to, ensure that its properties
and equipment used or useful in its business in whomsoever’s possession they may be to the extent that it is within the control
of such party to cause same, are kept in good repair, working order and condition, normal wear and tear excepted, and that from time to
time there are made in such properties and equipment all needful and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto, to the extent and in the manner customary for companies in the industry in which the Borrower and the Restricted
Subsidiaries conduct business and consistent with third party leases, except in each case to the extent the failure to do so could not
be reasonably expected to have a Material Adverse Effect.
9.9
End of Fiscal Years; Fiscal Quarters.
The Borrower will, for financial reporting purposes, cause( a) each of its, and each of the Restricted Subsidiaries’, fiscal years
to end on December 31 of each year and (b) each of its, and each of the Restricted Subsidiaries’, fiscal quarters to end on dates
consistent with such fiscal year-end and the Borrower’s past practice; provided, however, that the Borrower may,
upon written notice to, and consent by, the Administrative Agent, change the financial reporting convention specified above to any other
financial reporting convention reasonably acceptable to the Administrative Agent, in which case the Borrower and the Administrative Agent
will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such
change in financial reporting.
9.10
Additional Guarantors and Grantors. Subject to any applicable limitations set forth in the Guarantee, the Security
Agreement, the Pledge Agreement or any other Security Document, as applicable, the Borrower will cause (i) any direct or indirect Domestic
Subsidiary of the Borrower (other than any Excluded Subsidiary) formed or otherwise purchased or acquired after the Closing Date (including
pursuant to an Acquisition) and (ii) any Domestic Subsidiary of the Borrower that ceases to be an Excluded Subsidiary, to promptly execute
and deliver to the Collateral Agent (A) a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement substantially
in the form of Annex B, Exhibit 1 or Annex A, as applicable, to the respective agreement in order to become a Guarantor under the Guarantee,
a grantor under the Security Agreement and a pledgor under the Pledge Agreement, (B) a counterpart signature page to the Intercompany
Note, and (C) a joinder agreement or such comparable documentation to each other applicable Security Document, substantially in the form
annexed thereto, and to take all actions required thereunder to perfect the Liens created thereunder.
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9.11
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Pledges of Additional Stock and Evidence of Indebtedness.
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(a) Subject
to any applicable limitations set forth in the Security Documents, as applicable, the Borrower will pledge, and, if applicable, will
cause each other Subsidiary Guarantor (or a Person required to become a Subsidiary Guarantor pursuant to Section 9.10) to pledge, to
the Collateral Agent for the benefit of the Secured Parties, (i) all the Capital Stock (other than any Excluded Capital Stock) of
each Subsidiary owned by the Borrower or any Subsidiary Guarantor (or Person required to become a Subsidiary Guarantor pursuant to
Section 9.10), in each case, formed or otherwise purchased or acquired after the Closing Date, pursuant to a supplement to the
Pledge Agreement substantially in the form of Annex A thereto and (ii) except with respect to intercompany Indebtedness, all
evidences of Indebtedness for borrowed money in a principal amount in excess of $5,000,000 (individually) that are owing to the
Borrower or any Subsidiary Guarantor (or Person required to become a Subsidiary Guarantor pursuant to Section 9.10) (which shall be
evidenced by a promissory note), in each case pursuant to a supplement to the Pledge Agreement substantially in the form of Annex A
thereto.
(b) The
Borrower agrees that all Indebtedness of the Borrower and each of its Restricted Subsidiaries that is owing to any Credit Party (or
a Person required to become a Subsidiary Guarantor pursuant to Section 9.10) shall be evidenced by the Intercompany Note, which
promissory note shall be required to be pledged to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the
Pledge Agreement.
9.12
Use of Proceeds. The proceeds of the Initial Term Loans (other
than the Tranche B Term Loans made on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement)
and the Initial Revolving Borrowing Amount shall be used (a) on the Closing Date, together with cash on hand at the Target and its Subsidiaries
and the proceeds from the Equity Contribution to pay the Merger Consideration, the Existing Debt Refinancing and/or the Transaction Expenses
and (b) to the extent any proceeds remain after the application described in clause (a), on and after the Closing Date, for other general
corporate purposes of the Borrower and its Subsidiaries. The proceeds of the Revolving Credit Loans available under any Revolving Credit
Facility, together with the proceeds of the Swingline Loans and the Letters of Credit, will be used for working capital requirements
and other general corporate purposes of the Borrower and its Subsidiaries, including the financing of acquisitions, other Investments
and Restricted Payments and other distributions on account of the Capital Stock of the Borrower (or any Parent Entity thereof), in each
case permitted hereunder, and any other use not prohibited hereby. The proceeds of the
Tranche B Term Loans made on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement shall be used
on the First Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans outstanding hereunder as of the First
Incremental Agreement Effective Date (immediately prior to giving effect to the First Incremental Agreement), all accrued and unpaid
interest thereon and all other Obligations in respect thereof and (b) to pay the fees, expenses and other amounts incurred in connection
with the transactions contemplated by the First Incremental Agreement.. The proceeds of any Incremental Term Loan Facility,
the proceeds of any Revolving Credit Loans made pursuant to any Incremental Revolving Credit Commitment Increase and the proceeds of
any Additional/Replacement Revolving Credit Loans or Extended Revolving Credit Loans made pursuant to any Additional/Replacement Revolving
Credit Commitments or Extended Revolving Credit Commitments, as applicable, may be used for working capital requirements and other general
corporate purposes of the Borrower and its Subsidiaries including the financing of acquisitions, other Investments and Restricted Payments
and other distributions on account of the Capital Stock of the Borrower (or any Parent Entity thereof), in each case permitted hereunder,
and any other use not prohibited hereby.
9.13
Changes in Business. The Borrower and its Restricted Subsidiaries, taken as a whole, will not fundamentally and substantively
alter the character of their business, taken as a whole, from the business conducted by the Borrower and its Restricted Subsidiaries,
taken as a whole, on the Closing Date and other similar, incidental, ancillary, supportive, complementary, synergetic or related businesses
or reasonable extensions thereof (and non- core incidental businesses acquired in connection with any Acquisition or Investment or other
immaterial businesses).
(a)
Subject to the limitations set forth in this Agreement and the Security Documents, Holdings and the Borrower will, and will
cause each other Subsidiary Guarantor to, execute any and all further documents, financing statements, agreements and instruments, and
take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other similar
documents), that may be required under any Applicable Law, or that the Collateral Agent or the Required Lenders may reasonably request,
in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created
by the Security Documents, all at the expense of the Borrower and its Restricted Subsidiaries.
(b) Subject
to any applicable limitations set forth in the Security Documents and in Sections 9.10 and 9.11, (i) if any Material Real Property
is acquired by any Credit Party after the Closing Date or, (ii) if any Credit Party that becomes a Credit Party after the Closing
Date owns any Material Real Property, the Borrower will notify the Collateral Agent (who shall thereafter notify the Lenders)
thereof and will, within 90 days after the acquisition of such Material Real Property or within 90 days of the date on which the
applicable Credit Party became a Credit Party, as applicable, (or such longer period as may be agreed by the Collateral Agent in its
sole discretion), cause such Material Real Property to be subjected to a Mortgage (provided, however, that, in the
event any Material Real Property subject to a Mortgage under this Section is located in a jurisdiction that imposes mortgage
recording taxes or any similar fees or charges, such Mortgage shall only secure an amount equal to the Fair Market Value of such
Material Real Property) and will take, and cause the Subsidiary Guarantors to take, such other actions as shall be necessary or
reasonably requested by the Collateral Agent to grant and perfect a Lien on such Material Real Property consistent with the
applicable requirements of the Security Documents, including actions described in Section 9.14(a) and Section 9.14(c), all at the
expense of the Credit Parties.
(c)
Any Mortgage delivered to the Collateral Agent in accordance with Sections 9.14(b) shall be accompanied by:
(i)
(i) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with
respect to each Mortgaged Property and with respect to each Mortgaged Property that is: (x) in an area designated by the Federal Emergency
Management Agency as being located in a special flood hazard area, and (y) contains “improved real estate” or a “mobile
home” (as defined by the Flood Insurance Laws) within such special flood hazard area (a “Flood Hazard Property”),
(ii) Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such asset
is a Flood Hazard Property and as to whether the community in which such Mortgaged Property is located is participating in the National
Flood Insurance Program and (iii) evidence of flood insurance in form and substance reasonably satisfactory to the Collateral Agent and
in an amount required by Section 9.3(b) (collectively, the “Flood Documents”); provided that the Flood Documents
shall be delivered to the Collateral Agent in accordance with Section 9.14(f);
(ii)
a policy or policies of title insurance or a marked unconditional commitment or binder thereof issued by a nationally recognized
title insurance company insuring title to such Mortgaged Property is vested in such Credit Party for an amount not to exceed the Fair
Market Value (determined at the time described in Section 9.14(b) above) and together with such endorsements as the Collateral Agent may
reasonably request and which are available at commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property
is located;
(iii)
unless the Collateral Agent shall have otherwise agreed, but only to the extent already prepared and otherwise available,
either (A) a survey of the applicable Mortgaged Property for which all necessary fees (where applicable) have been paid (1) prepared by
a surveyor reasonably acceptable to the Collateral Agent, (2) dated or re-certificated not earlier than three months prior to the date
of such delivery or such other date as may be reasonably satisfactory to the Collateral Agent in its sole discretion, (3) for Mortgaged
Property situated in the United States, certified to the Collateral Agent and the title insurance company issuing the title insurance
policy for such Mortgaged Property pursuant to clause (ii), which certification shall be reasonably acceptable to the Collateral Agent
and (4) for Mortgaged Property situated in the United States, complying with current “Minimum Standard Detail Requirements for
ALTA/NSPS Land Title Surveys,” jointly established and adopted by American Land Title Association, the American Congress on
Surveying and Mapping and the National Society of Professional Surveyors (except for such deviations as are acceptable to the Collateral
Agent) or (B) coverage under the title insurance policy or policies referred to in clause (ii) above that does not contain a general exception
for survey matters and which contains survey-related endorsements reasonably acceptable to the Collateral Agent; and
(iv)
opinions of counsel to the Credit Party mortgagor with respect to the enforceability, due authorization, execution and delivery
of the applicable Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Collateral Agent.
(d)
Notwithstanding anything herein to the contrary, if the Collateral Agent and the Borrower reasonably determine in writing
that the time or cost of creating or perfecting any Lien on any property (including the time and cost required to obtain the flood insurance
required under Section 9.14(c)(i)) is excessive in relation to the benefits afforded to the Lenders thereby, then such property may be
excluded from the Collateral for all purposes of the Credit Documents.
(e)
Notwithstanding anything herein to the contrary, the Credit Parties shall not be required to take any actions outside the
United States, to (i) create any security interest in assets titled or located outside the United States, or (ii) perfect or make enforceable
any security interests in any Collateral.
(f) Notwithstanding
anything contained in this Agreement to the contrary, at least twenty days prior to the date on which any Mortgage shall be executed
and delivered with respect to any Material Real Property, the Borrower (or such other applicable Credit Party) shall deliver the
Flood Documents with respect to such Material Real Property to the Collateral Agent for prompt distribution to each Revolving Credit
Lender; provided that (x) each Revolving Credit Lender shall advise the Collateral Agent promptly upon completion of its
flood insurance diligence and compliance and (y) if any Revolving Credit Lender has notified the Collateral Agent in writing (who
shall promptly notify the Borrower) during such twenty day period commencing from the date on which such Revolving Credit Lender
receives the Flood Documents that its flood insurance diligence and compliance has not been completed, the relevant Credit Party
shall instead execute and deliver such Mortgage within three Business Days of receipt of written notice from the Collateral Agent
(from the date of notice from such Revolving Credit Lender to the Collateral Agent) that such flood insurance diligence is complete
(or such longer period as may be agreed by the Collateral Agent in its sole discretion); provided, further that (i) no
delay in the execution by any Credit Party of any Mortgage as a result of the application of, and compliance with, this sentence
shall result in a breach of any obligation or the occurrence of a Default or Event of Default hereunder or under any other Credit
Document and (ii) for the avoidance of doubt, in no event shall the application of, and compliance with, this sentence require the
delivery of Mortgages or any other related documentation or deliverables prior to the date that is 90 days after the acquisition of
such Material Real Property or within 90 days of the date on which the applicable Credit Party became a Credit Party, as
applicable.
9.15
Designation of Subsidiaries. The Board of Directors of the Borrower may at any time designate any Restricted Subsidiary
as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that immediately before and after
such designation, no Event of Default shall have occurred and be continuing. The designation of any Subsidiary as an Unrestricted Subsidiary
after the Closing Date shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the Fair
Market Value of the Borrower’s Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall
constitute the Incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time.
Upon any such designation of any Unrestricted Subsidiary as a Restricted Subsidiary (but without duplication of any amount reducing such
Investment in such Unrestricted Subsidiary pursuant to the definition of “Investment” or the definition of “Available
Amount”), the Borrower and/or the applicable Restricted Subsidiaries shall receive a credit against the applicable clause in Section
10.5 or Section 10.6 that was utilized for the Investment in such Unrestricted Subsidiary for all Returns in respect of such Investment.
9.16
Maintenance of Ratings. The Borrower will use commercially reasonable efforts to cause the public credit rating for
the Initial Term Loan Facility issued by S&P and the public credit rating for the Initial Term Loan Facility issued by Moody’s,
and the Borrower’s public corporate credit rating issued by S&P and public corporate credit rating issued by Moody’s to
each be maintained (but not to obtain or maintain a specific rating).
9.17
Post-Closing Obligations. To the extent not executed and delivered on the Closing Date, unless otherwise agreed by
the Administrative Agent in its reasonable discretion, execute and deliver the documents and complete the tasks set forth on Schedule
9.17, in each case within the time limits specified on such schedule (or such later time as the Administrative Agent shall agree in its
reasonable discretion).
SECTION
10. Negative Covenants. The Borrower (and, with respect to Section 10.9, Holdings) hereby covenants and agrees that on
the Closing Date and thereafter, until the Total Commitment and all Letters of Credit have terminated (unless such Letters of Credit
have been Cash Collateralized on terms and conditions set forth in Section 3.8) and the Loans and Unpaid Drawings, together with
interest, fees and all other payment Obligations (other than Hedging Obligations under Secured Hedging Agreements, Cash Management
Obligations under Secured Cash Management Agreements or contingent indemnification or other contingent obligations not then due and
payable), are paid in full:
10.1
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly
or indirectly, Incur, contingently or otherwise, with respect to any Indebtedness, except:
(a)
(i) Indebtedness arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Agreement
Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(b) [Reserved];
(c)
(i) Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letters
of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice (including
in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance
or self- insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims, health,
disability or other employee benefits or property, casualty or liability insurance or self-insurance) and (ii) Indebtedness supported
by Letters of Credit or other letters of credit under similar facilities in an amount not to exceed the Stated Amount of such Letters
of Credit or stated amount of such other letters of credit under such similar facilities;
(d)
Except as otherwise limited by clauses (a), (b), (h) and (u) of this Section 10.1, Guarantee Obligations Incurred by (i)
any Restricted Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiary that is permitted to be Incurred
under this Agreement and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiary that is permitted to be Incurred under
this Agreement; provided that, if the applicable Indebtedness is subordinated to the Obligations, any such Guarantee Obligations
shall be subordinated to the Obligations;
(e)
Guarantee Obligations Incurred in the ordinary course of business in respect of obligations to suppliers, customers, franchisees,
lessors, licensees, sublicensees or distribution partners;
(f)
(i) Indebtedness (including Financing Lease Obligations and other Indebtedness arising under mortgage financings and purchase
money Indebtedness (including any industrial revenue bond, industrial development bond or similar financings)) the proceeds of which are
used to finance the acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement
of fixed or capital assets or otherwise Incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is Incurred
concurrently with or within 270 days after the completion of the applicable acquisition, development, construction, repair, restoration,
replacement, maintenance, upgrade, expansion or improvement or the making of the applicable Capital Expenditure and (B) such Indebtedness
is not Incurred to acquire Capital Stock of any Person; provided, further, that, at the time of Incurrence thereof and after
giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding
pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii)
in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing
Indebtedness”, exceed an amount equal to (I) the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such
Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date) minus (II) the
aggregate amount of Indebtedness incurred pursuant to Section 10.1(g) and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance
such Indebtedness;
(g)
(i) Indebtedness constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Closing
Date (and set forth on Schedule 10.1) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at
the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal
amount of such Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted
Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by
the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $10,000,000 and (y)
20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such
date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered
on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any Permitted
Refinancing Indebtedness Incurred to Refinance such Indebtedness.
(h)
Closing Date Indebtedness and any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i)
Indebtedness in respect of Hedging Agreements Incurred in the ordinary course of business or consistent with past practice
and, in each case, at the time entered into, not for speculative purposes;
(j)
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted
Subsidiary (or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such Person or any of its Subsidiaries)
or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Closing Date
as the result of an Acquisition or similar Investment or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Restricted
Subsidiary; provided that
(A)
subject to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5
has occurred and is continuing;
(B)
subject to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness,
to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower
and the Restricted Subsidiaries shall be in compliance on a pro forma basis, with either (X) a Consolidated EBITDA to Consolidated Interest
Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence,
as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of
either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest Expense Ratio immediately prior
to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total Debt to Consolidated EBITDA Ratio, as
such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such
Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period
of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately
prior to giving pro forma effect to all such Incurrences and such other transactions;
(C)
such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired
and, in each case, was not created in anticipation thereof;
(D)
such Indebtedness is not guaranteed in any respect by Holdings, the Borrower or any Restricted Subsidiary (other than any
such Person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries) except
to the extent permitted under Section 10.5 or Section 10.6;
(E)
(x) the Capital Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11 and (y)
such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee
and security arrangements in relation to the Obligations) and a counterpart signature page to the Intercompany Notes, in each case to
the extent required under Section 9.10, 9.11 or 9.14(b), as applicable; provided that the requirements of this clause (E) shall not apply
to any Indebtedness of the type that could have been Incurred under Section 10.1(f) or Section 10.1(g); and
(ii) any
Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(k)
(i) Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition or similar Investment;
provided that
(A)
subject to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5
has occurred and is continuing;
(B)
subject to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness,
to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower
and the Restricted Subsidiaries shall be in compliance on a pro forma basis with either (X) a Consolidated EBITDA to Consolidated Interest
Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence,
as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of
either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest Expense Ratio immediately prior
to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total Debt to Consolidated EBITDA Ratio, as
such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such
Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period
of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately
prior to giving pro forma effect to all such Incurrences and such other transactions;
(C)
the terms of such Indebtedness do not provide for any scheduled repayment (including at maturity), mandatory repayment,
redemption, repurchase, defeasance, acquisition, similar payment or sinking fund obligation prior to the Latest Maturity Date, other than
customary prepayments, repurchases, redemptions, defeasances or similar payments of, or offers to prepay, redeem, repurchase, defease,
acquire or similarly pay upon, a change of control, asset sale event or casualty, eminent domain or condemnation event or on account of
the accumulation of excess cash flow and customary acceleration rights upon an event of default;
(D)
if such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall
not be guaranteed in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section
10.5;
(E) (x)
the Capital Stock of any Person acquired in such Acquisitions or similar Investment (the “acquired Person”) is
pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such acquired Person executes a supplement to each
of the Guarantee, the Security Agreement and the Pledge Agreement and a counterpart signature page to the Intercompany Note (or
alternative guarantee and security arrangements in relation to the Obligations), in each case, to the extent required under Section
9.10, 9.11 or 9.14(b), as applicable;
(F)
the terms of such Indebtedness shall be consistent with the requirements set forth in clause (b) and, if applicable, clause
(f), of the proviso to the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized
Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness,
together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation
relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement
shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies
the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the
basis upon which it disagrees); and
(G) at
the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions being
consummated in connection therewith and the use of the proceeds thereof, the aggregate principal amount of all Indebtedness Incurred
by Non-Credit Parties pursuant to, and then outstanding under, this Section 10.1(k), when aggregated with the aggregate principal
amount of (1) all other Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to Section 10.1(s) and (2) all
Permitted Refinancing Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to clause (ii) of this Section
10.1(k), shall not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater
of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most
recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section
9.1 Financials most recently delivered on or prior to such date);
(ii) any
Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(l)
(i) unsecured Indebtedness in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase
price of goods or services or progress payments in connection with such goods and services; provided that such obligations are
Incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in
connection with the borrowing of money and (ii) unsecured Indebtedness in respect of intercompany obligations of the Borrower or any Restricted
Subsidiary in respect of accounts payable Incurred in connection with goods sold or services rendered in the ordinary course of business
and not in connection with the borrowing of money;
(m)
Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment
of purchase price, earn-outs, deferred purchase price, payment obligations in respect of any non-compete, consulting or similar arrangement,
contingent earnout obligations or similar obligations (including earn-outs), in each case entered into in connection with the Transactions,
Acquisitions, other Investments and the Disposition of any business, assets or Capital Stock permitted hereunder, other than Guarantee
Obligations Incurred by any Person acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing
such acquisition, but including in connection with Guarantee Obligations, letters of credit, surety bonds on performance bonds securing
the performance of the Borrower or any such Restricted Subsidiary pursuant to such agreements;
(n)
Indebtedness in respect of contracts (including trade contracts and government contracts), statutory obligations, performance
bonds, bid bonds, custom bonds, stay and appeal bonds, surety bonds, indemnity bonds, judgment bonds, performance and completion and return
of money bonds and guarantees, financial assurances, bankers’ acceptance facilities and similar obligations or obligations in respect
of letters of credit, bank guarantees or similar instruments related thereto, in each case not in connection with the borrowing of money,
including those incurred to secure health, safety and environmental obligations;
(o)
Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii)
take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection
with the borrowing of money;
(p)
(i) Indebtedness representing deferred compensation to officers, directors, managers, employees, consultants or independent
contractors of Holdings (or any Parent Entity thereof or any Equityholding Vehicle), the Borrower and the Restricted Subsidiaries Incurred
in the ordinary course of business and (ii) Indebtedness consisting of obligations of Holdings (or any Parent Entity thereof or any Equityholding
Vehicle), the Borrower or the Restricted Subsidiaries under deferred compensation arrangements to their officers, directors, managers,
employees, consultants or independent contractors or other similar arrangements Incurred by such Persons in connection with the Transactions,
Acquisitions or any other Investment permitted under Section 10.5 or Section 10.6;
(q)
unsecured Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to future, current
or former officers, managers, consultants, directors, employees and independent contractors (or their respective Immediate Family Members)
of Holdings, the Borrower, any of its Subsidiaries or any Parent Entity or Equityholding Vehicle, in each case, to finance the retirement,
acquisition, repurchase or redemption of Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle to the
extent such Parent Entity or any Equityholding Vehicle uses the proceeds to finance the purchase or redemption (directly or indirectly)
of its Capital Stock) or the Capital Stock of the Borrower, in each case to the extent permitted by Section 10.6; provided that,
any such Indebtedness shall reduce availability under Section 10.6 to the extent of any amounts incurred from time to time under this
Section 10.1(q), whether or not outstanding, except in respect of amounts forgiven or cancelled without payment being made;
(r)
Cash Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic
clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements and otherwise
in connection with deposit accounts and repurchase agreements permitted under Section 10.5;
(s) additional
senior, senior subordinated or subordinated Indebtedness of the Borrower and the Restricted Subsidiaries, and Permitted Refinancing
Indebtedness thereof; provided that, after giving pro forma effect to the Incurrence of any such Indebtedness and any
Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and Restricted Subsidiaries
shall be in compliance on a pro forma basis with either (x) a Consolidated EBITDA to Consolidated Interest Expense Ratio, as such
ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such
Incurrence, acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of not
less than 2.00:1.00 or (y) a Consolidated Total Debt to Consolidated EBITDA Ratio of less than or equal to 6.50:1.00, as such ratio
is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such
Incurrence, acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period; provided,
that, at the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions
being consummated in connection therewith and the use of the proceeds thereof, the aggregate principal amount of all Indebtedness
Incurred and then outstanding under this Section 10.1(s) by Non-Credit Parties, when aggregated with the aggregate principal amount
of (1) all other Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to Section 10.1(k) and (2) Permitted
Refinancing Indebtedness Incurred pursuant to, and then outstanding under, this clause (s) to Refinance Indebtedness of Non-Credit
Parties, shall not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater
of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most
recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section
9.1 Financials most recently delivered on or prior to such date); provided, further, that the terms of such
Indebtedness shall be consistent with the requirements of clause (b) and, if applicable, clause (f) of
the proviso of the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized
Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such
Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of
the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy
the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the
Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including
a reasonable description of the basis upon which it disagrees);
(t)
(i) Indebtedness Incurred in connection with any Sale Leaseback and (ii) any Permitted Refinancing Indebtedness Incurred
to Refinance such Indebtedness;
(u) Indebtedness
in respect of (i) Permitted Additional Debt, the Net Cash Proceeds from which or, in the case of commitments, the new commitments of
which, are required to be applied to (x) prepay the Term Loans and related amounts in the manner set forth in Section 5.2(a)(i) or
(y) permanently reduce Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving
Credit Commitments in the manner set forth in Section 5.2(e)(ii) (and any such Permitted Additional Debt shall be deemed to have
been Incurred pursuant to this clause (i)), (ii) other Permitted Additional Debt; provided that, in the case of this clause
(ii), at the time of Incurrence or provision thereof and after giving pro forma effect thereto and such other transactions being
consummated in connection therewith and the use of the proceeds thereof, assuming that all commitments, if any, thereunder were
fully drawn, the aggregate principal amount of (X) all such Indebtedness Incurred or provided under this Section 10.1(u)(ii) plus
(Y) any Incremental Term Loans (other than those Incremental Term Loans Incurred under the proviso to Section 2.14(b)), any
Incremental Revolving Credit Commitment Increases and any Additional/Replacement Revolving Credit Commitments (other than those
Additional/Replacement Revolving Credit Commitments Incurred or provided under the proviso to Section 2.14(b)) that, in each case,
have been Incurred or provided pursuant to Section 2.14(b)(A), shall not exceed the sum of (A) the Incremental Base Amount plus
(B) an aggregate amount of Indebtedness, such that, after giving pro forma effect to such Incurrence (and after giving pro forma
effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all
Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments then outstanding and
Incurred under Section 2.14(b)(B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to
Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most recently ended on or prior to the Incurrence of any
such Permitted Additional Debt, calculated on a pro forma basis, as if such Incurrence (and any related transaction) had occurred on
the first day of such Test Period, that is no greater than either (x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition
or similar Investment, no greater than prior Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such
Acquisition or similar Investment; provided, however, that, in the case of the Incurrence of any Indebtedness under
this clause (ii) that does not constitute or is not intended to constitute First Lien Obligations, in lieu of compliance with the
Consolidated First Lien Debt to Consolidated EBITDA Ratio set forth above, the Borrower shall be in compliance with a Consolidated
Total Debt to Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most recently ended on or prior to the
Incurrence of any such Permitted Additional Debt, calculated on a pro forma basis (but excluding cash proceeds of such Incurrence),
as if such Incurrence (and any related transaction) had occurred on the first day of such Test Period, that is no greater than
either (x) 6.50:1.00 or (y) if Incurred in connection
with an Acquisition or similar Investment, no greater than prior Consolidated Total Debt to Consolidated EBITDA Ratio immediately
prior to such Acquisition or similar Investment (the ratio thresholds set forth in this clause (ii), the “Incremental Ratio
Debt Amount”); provided, further, that, in each case of this clause (ii), subject to Section 1.11, no Event
of Default (or, in the case of the Incurrence or provision of Permitted Additional Debt in connection with an Acquisition or similar
Investment, no Event of Default under either Section 11.1 or 11.5) shall have occurred and be continuing at the time of the
Incurrence or provision of any such Indebtedness or after giving pro forma effect thereto and (iii) any Permitted Refinancing
Indebtedness Incurred to Refinance such Indebtedness; provided that, without limitation of the requirements set forth in the
definition of “Permitted Refinancing Indebtedness”, such Permitted Refinancing Indebtedness shall be of the type
described in the definition of “Permitted Additional Debt”;
(v) Indebtedness
of Non-Credit Parties; provided that, at the time of the Incurrence thereof and after giving pro forma effect to such
Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then
outstanding in reliance on this Section 10.1(v) shall not exceed the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA
of the Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such
Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
(w)
unsecured Indebtedness in the amount equal to the sum of (i) any Excluded Contribution to the extent not counted for purposes
of the Available Equity Amount or Cure Amount and (ii) the Available RP Capacity Amount; provided that the maturity date of such
Indebtedness is not earlier than the Latest Maturity Date;
(x) Indebtedness
of the Borrower and the Restricted Subsidiaries; provided that, at the time of the Incurrence thereof and after giving pro
forma effect to such Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of
Indebtedness the outstanding under this Section 10.1(x) shall not exceed the greater of (x) $37,500,000 and (y) 75% of Consolidated
EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such
Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
(y)
(i) Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary;
provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Subsidiary Guarantor (other than any
Indebtedness in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business
or consistent with past practice (and not in connection with the borrowing of money)) shall be evidenced by the Intercompany Note and
(ii) Indebtedness in respect of shares of Disqualified Capital Stock of a Restricted Subsidiary issued to the Borrower or another Restricted
Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer (other than the incurrence of a lien permitted
by Section 10.2) of any such shares of Disqualified Capital Stock (except to the Borrower or another of the Restricted Subsidiaries or
any pledge of such Capital Stock constituting a lien permitted by Section 10.2 (but not foreclosure thereon)) shall be deemed in each
case to be an issuance of such shares of Disqualified Capital Stock (to the extent such Disqualified Capital Stock is then outstanding)
not permitted by this clause;
(z)
Indebtedness in respect of commercial letters of credit obtained in the ordinary course of business;
(aa)
Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business;
(bb)
customer deposits and advance payments received in the ordinary course of business from customers for goods or services purchased
in the ordinary course of business;
(cc)
Indebtedness Incurred 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 on a recourse basis;
(dd)
Indebtedness of the Borrower or any Restricted Subsidiary undertaken in connection with cash management and related activities
with respect to any Subsidiary or Joint Venture in the ordinary course of business;
(ee)
Indebtedness arising solely as a result of the existence of any Lien (other than for Liens securing debt for borrowed money) permitted
under Section 10.2;
(ff)
Indebtedness of any Receivables Subsidiary arising under a Qualified Receivables Facility;
(gg)
Indebtedness to the seller of any business or assets permitted to be acquired by the Borrower or any Restricted Subsidiary under
this Agreement; provided that, at the time of the Incurrence thereof and after giving pro forma effect to such Incurrence and
other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding in reliance on
this Section 10.1(ii) shall not exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of such date) based upon the
Section 9.1 Financials most recently delivered on or prior to such date;
(hh)
obligations in respect of Disqualified Capital Stock; provided that, at the time of the Incurrence thereof and after giving
pro forma effect to such Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness
then outstanding under this clause (hh) shall not exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower
and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of such date)
based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(ii)
endorsement of instruments or other payment items for deposit in the ordinary course of business;
(jj)
performance Guarantees of the Borrower and its Restricted Subsidiaries primarily guaranteeing performance of contractual obligations
of the Borrower or Restricted Subsidiaries to a third party and not primarily for the purpose of guaranteeing payment of Indebtedness;
(kk)
obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any
Subsidiary of the 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)
to the
extent constituting Indebtedness, the 2017 Contingent Value Rights;
(mm)
unfunded pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to
the extent they do not result in an Event of Default under Section 11.6; and
(nn) all
customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent
interest on obligations described in each of the clauses of this Section 10.1.
For
purposes of determining compliance with this Section 10.1, in the event that an item of Indebtedness meets the criteria of more than
one of the categories of Indebtedness described above, the Borrower shall, in its sole discretion, classify and reclassify or later
divide, classify or reclassify all or a portion of such item of Indebtedness (or any portion thereof and including as between the
Incremental Base Amount and the Incremental Ratio Debt Amount) in a manner that complies with this Section 10.1 and will only be
required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that all
Indebtedness outstanding under the Credit Documents and any Credit Agreement Refinancing Indebtedness Incurred to Refinance (in
whole or in part) such Indebtedness will be deemed to have been Incurred in reliance only on the exception set forth in Section
10.1(a) (but without limiting the right of the Borrower to classify and reclassify, or later divide, classify or reclassify,
Indebtedness incurred under Section 2.14 or Section 10.1(u) as between the Incremental Base Amount and the Incremental Ratio Debt
Amount). The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness
shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section 10.1.
At the time
of Incurrence, the Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness
described in the paragraphs above. It is understood and agreed that any Indebtedness in the form of loans secured by Liens on the Collateral
having a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but without regard to control
of remedies) shall be subject to the MFN Protection set forth in Section 2.14(c) (but subject to the MFN Exceptions to such MFN Protection)
as if such Indebtedness were an Incremental Term Loan.
10.2 Limitation
on Liens. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or suffer to exist any Lien upon any property or assets of any kind (real or personal, tangible or intangible) of the
Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired, except:
(a) Liens
created pursuant to (i) the Credit Documents to secure the Obligations (including Liens permitted pursuant to Section 3.8) or
permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage, (ii) the Permitted Additional Debt Documents
securing Permitted Additional Debt Obligations permitted to be Incurred under Section 10.1(u) (provided that such Liens do
not extend to any assets that are not Collateral) and (iii) the documentation governing any Credit Agreement Refinancing
Indebtedness (provided that such Liens do not extend to any assets that are not Collateral); provided that, (A) in the
case of Liens described in subclause (ii) or (iii) above securing Permitted Additional Debt Obligations or Credit Agreement
Refinancing Indebtedness that constitute, or are intended to constitute, First Lien Obligations, the applicable Permitted Additional
Debt Secured Parties or parties to such Credit Agreement Refinancing Indebtedness (or a representative thereof on behalf of such
holders) shall have entered into with the Collateral Agent a Customary Intercreditor Agreement which agreement shall provide that
the Liens on the Collateral securing such Permitted Additional Debt Obligations or Credit Agreement Refinancing Indebtedness shall
have the same priority ranking as the Liens on the Collateral securing the Obligations (but without regard to control of remedies)
and (B) in the case of Liens described in subclause (ii) or (iii) above securing Permitted Additional Debt Obligations or Credit
Agreement Refinancing Indebtedness that do not constitute, or are not intended to constitute, First Lien Obligations, the applicable
Permitted Additional Debt Secured Parties or parties to such Credit Agreement Refinancing Indebtedness (or a representative thereof
on behalf of such holders) shall have entered into a Customary Intercreditor Agreement with the Collateral Agent which agreement
shall provide that the Liens on the Collateral securing such Permitted Additional Debt Obligations or Credit Agreement Refinancing
Indebtedness, as applicable, shall rank junior in priority to the Liens on the Collateral securing the Obligations and any other
First Lien Obligations. Without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be
authorized to negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor Agreement or any amendment
(or amendment and restatement) to the Security Documents or a Customary Intercreditor Agreement to the extent necessary to effect
the provisions contemplated by this Section 10.2(a);
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(b)
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Permitted Encumbrances;
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(c)
Liens securing Indebtedness permitted pursuant to Section 10.1(f) or Section 10.1(g) (including the interests of vendors
and lessors under conditional sale and title retention agreements); provided that (i) such Liens attach concurrently with or within
270 days after the acquisition, lease, repair, replacement, restoration, construction, expansion or improvement (as applicable) of the
property subject to such Liens or the making of the applicable Capital Expenditures, (ii) other than the property financed by such Indebtedness,
such Liens do not at any time encumber any property, except for replacements thereof and accessions and additions to such property and
ancillary rights thereto and the proceeds and the products thereof and customary security deposits, related contract rights and payment
intangibles and other assets related thereto and (iii) with respect to Financing Lease Obligations, such Liens do not at any time extend
to, or cover any assets (except for accessions and additions to such assets, replacements and products thereof and customary security
deposits, related contract rights and payment intangibles), other than the assets subject to such Financing Lease Obligations and ancillary
rights thereto; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings
of equipment provided by such lender;
(d) Liens
on property and assets existing on the Closing Date or pursuant to agreements in existence on the Closing Date and listed on
Schedule 10.2 or, to the extent not listed in such Schedule, such property or assets have a Fair Market Value that does not exceed
$2,500,000 in the aggregate; provided that (i) such
Lien does not extend to any other property or asset of the Borrower or any Restricted Subsidiary, other than (A) after acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted by Section
10.1 and (B) the proceeds and products thereof and (ii) such Lien shall secure only those obligations that such Liens secured on the
Closing Date and any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness permitted by Section 10.1;
(e) the
modification, Refinancing, replacement, extension or renewal (or successive modifications, Refinancings, replacements, extensions or
renewals) of any Lien permitted by clauses (c), (d), (f), (p), (t), (u) and (bb) of this Section 10.2 upon or in the same assets
theretofore subject to such Lien other than (i) after-acquired property that is affixed or incorporated into the property covered by
such Lien, (ii) in the case of Liens permitted by clauses (f), (t), (u) or (bb), after-acquired property subject to a Lien securing
Indebtedness permitted under Section 10.1, the terms of which Indebtedness require or include a pledge of after-acquired property
(it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have
applied but for such acquisition) and (iii) the proceeds and products thereof;
(f) Liens
existing on the assets, or shares of Capital Stock, of any Person that becomes a Restricted Subsidiary (including by designation as
a Restricted Subsidiary pursuant to Section 9.15), or existing on assets acquired, pursuant to an Acquisition or other similar
Investment permitted under Section 10.5 or Section 10.6 to the extent the Liens on such assets secure Indebtedness permitted by
Section 10.1(j); provided that such Liens attach at all times only to the same assets that such Liens attached to (other than
(i) after-acquired property that is affixed or incorporated into the property covered by such Lien, (ii) after-acquired property
subject to a Lien securing Indebtedness permitted under Section 10.1(j), the terms of which Indebtedness require or include a pledge
of after-acquired property (it being understood that such requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition) and (iii) the proceeds and products thereof), and secure only, the same
Indebtedness or obligations (or any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness permitted by Section
10.1) that such Liens secured, immediately prior to such Acquisition or such other Investment, as applicable;
(g)
Liens arising out of any license, sublicense or cross-license of Intellectual Property permitted under Section 10.4;
(h)
Liens securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary in favor of the Borrower or
any Restricted Subsidiary;
(i)
Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection,
(ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii)
in favor of a banking institution arising as a matter of law encumbering deposits (including the right to set off) and which are within
the general parameters customary in the banking industry;
(j)
Liens (i) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment
permitted pursuant to Section 10.5 or Section 10.6 to be applied against the purchase price for such Investment (or to secure letters
of credit, bank guarantee or similar instruments posted or issued in respect thereof), and (ii) consisting of an agreement to sell, transfer,
lease or otherwise Dispose of any property in a transaction permitted under Section 10.4, in each case, solely to the extent such Investment
or sale, Disposition, transfer or lease, as the case may be, would have been permitted on the date of the creation of such Lien;
(k) (i)
Liens arising out of conditional sale, title retention (including any security or quasi- security arising under any retention of
title, extended retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect
of goods or, in the case of an extended retention of title arrangement, receivables resulting from the sale of such goods supplied
to the Borrower or any of the Restricted Subsidiaries in the ordinary course of trading and on the supplier’s standard or
usual terms and not arising as a result of any default or omission by the Borrower or any of the Restricted Subsidiaries),
consignment or similar arrangements for sale of property and bailee arrangements entered into by the Borrower or any of the
Restricted Subsidiaries in the ordinary course of business permitted by this Agreement and (ii) Lien arising by operation of
Applicable Law under Article 2 of the Uniform Commercial Code (or any similar provision under any other Applicable Law) in favor of
a seller or buyer of goods;
(l)
Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 10.5; provided
that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(m)
Liens that are contractual rights of set-off (A) relating to the establishment of depository relations with banks not given
in connection with the Incurrence of Indebtedness, (B) relating to pooled deposit, automatic clearing house or sweep accounts of the Borrower
or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of
the Borrower and the Restricted Subsidiaries or (C) relating to purchase orders and other agreements entered into with customers of the
Borrower or any Restricted Subsidiary in the ordinary course of business; provided that, Liens permitted pursuant to this clause
(m) may be first priority Liens and not subject to any Lien or security interest securing the Obligations;
(n)
Liens (i) solely on any earnest money deposits of cash or Cash Equivalents made by the Borrower or any of the Restricted
Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder or to secure any letter of credit, bank
guarantee or similar instrument issued or posted in respect thereof and (ii) consisting of an agreement to Dispose of any property in
a transaction permitted under Section 10.4;
(o)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(p)
Liens on property subject to Sale Leasebacks and customary security deposits, related contract rights and payment intangibles
related thereto;
(q)
the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(r)
agreements to subordinate any interest of the Borrower or any Restricted Subsidiary in any accounts receivable or other
proceeds arising from inventory consigned by the Borrower or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary
course of business;
(s)
(i) Liens on Capital Stock in Joint Ventures securing obligations of such Joint Ventures and (ii) to the extent constituting
Liens, transfer restrictions, purchase options, rights of first refusal, tag or drag, put or call or similar rights of minority holders
or Joint Ventures partners, in each case under partnership, limited liability coverage, Joint Venture or similar Organizational Documents;
(t)
Liens with respect to property or assets of any Non-Credit Party securing Indebtedness of a Non-Credit Party permitted under
Section 10.1(v);
(u) Liens
not otherwise permitted by this Section 10.2; provided that, at the time of the incurrence thereof and after giving pro forma
effect thereto and the use of proceeds thereof, the aggregate amount of Indebtedness and other obligations then outstanding and
secured thereby (when aggregated with the principal amount of Indebtedness secured by Liens Incurred in reliance on, and then
outstanding under, Section 10.2(e) above in respect of a Refinancing of Indebtedness previously secured under this Section 10.2(u))
does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x)
$25,000,000 and (y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently
ended on or prior to such date such Lien is created, incurred, assumed or suffered to exist (measured as such date) based upon the
Section 9.1 Financials most recently delivered on or prior to such date; provided that, if such Liens are on Collateral, then
the Borrower may elect to have the holders of the Indebtedness or other obligations secured thereby (or a representative or trustee
on their behalf) enter into a Customary Intercreditor Agreement providing that the consensual Liens on the Collateral (other than
cash and Cash Equivalents) securing such Indebtedness or other obligations shall rank either equal in priority or junior to the
Liens on the Collateral securing the Obligations. Without any further consent of the Lenders, the Administrative Agent and the
Collateral Agent shall be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor
Agreement or any amendment (or amendment and restatement) to the Security Documents or a Customary Intercreditor Agreement to the
extent necessary to effect the provisions contemplated by this Section 10.2(u);
(v) Liens
encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other
brokerage accounts maintained in the ordinary course of business and, at the time of incurrence thereof, not for speculative purposes;
(w) Liens
on cash and Cash Equivalents used to defease or to satisfy or discharge Indebtedness; provided such defeasance or satisfaction
or discharge is permitted under this Agreement;
(x) 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 or consistent with past practice;
(y) Liens securing commercial letters of credit permitted pursuant to Section 10.1(z);
(z) Liens
on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(aa) Liens securing Hedging Agreements submitted for clearing in accordance with Applicable Law;
(bb) Liens securing Indebtedness permitted under Section 10.1; provided that, subject to Section 1.11, after giving pro forma effect
to the Incurrence of any such Liens and the Incurrence of such Indebtedness and to any Acquisition, Investment, Specified Transaction
or Specified Restructuring to be consummated in connection therewith, the Borrower and Restricted Subsidiaries shall be in compliance
on a pro forma basis with (A) in the case of any Indebtedness that constitutes or is intended to constitute First Lien Obligations, a
Consolidated First Lien Debt to Consolidated EBITDA Ratio that is no greater than 5.25:1.00 or (B) in the case of any Indebtedness that
that does not constitute or is not intended to constitute First Lien Obligations, a Consolidated Secured Debt to Consolidated EBITDA
Ratio that is no greater than 6.50:1.00, in each case as such ratio is calculated as of the last day of the Test Period most recently
ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, and any Specified Transaction or Specified
Restructuring to be consummated in connection therewith occurred on the first day of such Test Period; provided; further; that, if such
Liens are on Collateral, then the Borrower may elect to have the holders of the Indebtedness or other obligations secured thereby (or
a representative or trustee on their behalf) enter into a Customary Intercreditor Agreement providing that the consensual Liens on the
Collateral (other than cash and Cash Equivalents) securing such Indebtedness or other obligations shall rank either equal in priority
or junior to the Liens on the Collateral securing the Obligations. Without any further consent of the Lenders, the Administrative Agent
and the Collateral Agent shall be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor
Agreement or any amendment (or amendment and restatement) to the Security Documents or a Customary Intercreditor Agreement to the extent
necessary to effect the provisions contemplated by this Section 10.2(bb);
(cc) with respect to any Foreign Subsidiary, Liens arising mandatorily by legal requirements (and not as a result of under-capitalization
of such Foreign Subsidiary);
(dd) Liens on Escrowed Proceeds for the benefit of the related holders of debt securities or other Indebtedness permitted to be incurred
hereunder (or the underwriters or arrangers thereof) or on cash set aside at the time of the Incurrence of any Indebtedness or government
securities purchased with such cash, in either case to the extent such cash or government securities prefund the payment of interest on
such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose;
(ee) Liens on vehicles or equipment of the Borrower or any of the Restricted Subsidiaries granted in the ordinary course of business;
(ff) Liens on accounts receivable and related assets, incurred in connection with a Qualified Receivables Facility;
(gg) Liens securing obligations in respect of any overdraft and related liabilities arising from treasury, depository and cash management
services or any automated clearing house transfers of funds or in respect of any credit card or similar services incurred in the ordinary
course of business or consistent with past practice;
(hh) Liens representing (i) any interest or title of a licensor, lessor or sublicensor or sublessor under any lease or license permitted
by this Agreement, (ii) any Lien or restriction that the interest or title of such lessor, licensor, sublessor or sublicensor may be subject
to, or (iii) the interest of a licensee, lessee, sublicensee or sublessee arising by virtue of being granted a license or lease permitted
by this Agreement;
(ii) Liens granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of Intellectual
Property to secure the damages, if any, of such licensee resulting from the rejection of the license of such licensee in a bankruptcy,
reorganization or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(jj) utility and
similar deposits in the ordinary course of business;
(kk) Liens
securing any Hedging Obligations under any Hedging Agreement so long as the Fair Market Value of the Collateral securing such
Hedging Obligations does not exceed the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its
Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Lien is created, incurred, assumed or
suffered to exist (measured as such date) based upon the Section 9.1 Financials most recently delivered on or prior to such
date;
(ll) Liens arising in connection with rights of dissenting equityholders pursuant to Applicable Law in respect of the Transactions;
and
(mm) Liens arising solely by virtue of any statutory or common law provision or from customary contractual provisions (such as banks’
general terms and conditions) relating to banker’s liens, rights of set-off or similar rights.
For purposes
of determining compliance with this Section 10.2, (A) Lien need not be incurred solely by reference to one category of Liens permitted
by this Section 10.2 but are permitted to be incurred in part under any combination thereof and of any other available exemption, (B)
in the event that Lien (or any portion thereof) meets the criteria of one or more of the categories of Liens permitted by this Section
10.2, the Borrower shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies
with this definition and (C) in the event that a portion of Indebtedness or other obligations secured by a Lien could be classified as
secured in part pursuant to Section 10.2(bb) above (giving pro forma effect to the Incurrence of such portion of such Indebtedness or
other obligations), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect
thereof) as having been secured pursuant to Section 10.2(bb) above and thereafter the remainder of the Indebtedness or other obligations
as having been secured pursuant to one or more of the other clauses of this Section 10.2.
10.3
Limitation on Fundamental Changes. Except as expressly permitted by Section 10.4, 10.5 or 10.6, the Borrower will
not and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or amalgamation, or liquidate, wind
up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its business units, assets
or other properties, except that:
(a) any
Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the
Borrower or the Borrower may Dispose of all or substantially all of its business units, assets and other properties; provided that
(i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the
Borrower is not the continuing or surviving Person, the Person formed by or surviving any such merger, amalgamation or consolidation
(if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s assets, the
transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the United
States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being
herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall
expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement
hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger, amalgamation, consolidation
or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, or
Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.11, no Event of Default under Section 11.1 or
Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result
from the consummation of such merger, amalgamation, consolidation or Disposition, (B) each Guarantor, unless it is the other party
to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by
a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C)
each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or
Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its
obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a
Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor
Borrower is the Borrower, shall have by an amendment to or restatement of the Mortgage confirmed that its obligations thereunder
shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the
Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any
supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral
under the Security Documents, (F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to
the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not
breach or result in a default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or
Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition”
or is otherwise permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied,
the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement
(provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or
property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in
Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such
Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any
Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one
or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its business
units, assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition
involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the
transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such
merger, amalgamation, consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to
become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more
Subsidiary Guarantors, if the surviving Person formed by or surviving such merger, amalgamation or consolidation or the transferee
of such assets and properties is a Credit Party, then any Indebtedness of any Subsidiary Guarantor assumed by such surviving Person
or the transferee of such assets and properties shall be deemed an Incurrence of Indebtedness upon completion of such transaction
and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 of this Agreement (without giving
effect to Section 10.1(k)) and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and
a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary
of the Borrower, (A) subject to Section 1.11, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing
on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger,
amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the Administrative Agent a certificate of an
Authorized Officer stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document
preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the Security Documents and (C) such
merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term
“Permitted Acquisition” or is otherwise permitted under Section 10.4, 10.5 or 10.6;
(c) any
Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower;
(d) the Transactions (including the Mergers) may be consummated;
(e) any
Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such liquidation
or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders
and (y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.5 or Section 10.6,
or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another
Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form; and
(f) the
Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation, amalgamation or Disposition,
the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (other than 10.4(h)).
10.4
Limitation on Sale of Assets. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly
or indirectly, (i) convey, sell, lease, assign, transfer, license or otherwise dispose of any of its property, business or assets (including
receivables and including pursuant to a Sale Leaseback), whether now owned or hereafter acquired (each, a “Disposition”)
(other than any such Disposition resulting from a Recovery Event), or (ii) sell to any Person (other than to the Borrower or a Restricted
Subsidiary) any shares owned by it of any of their respective Restricted Subsidiaries’ Capital Stock, except that:
(a) the
Borrower and the Restricted Subsidiaries may sell, lease, assign, transfer, license, abandon, allow the expiration or lapse of, or
otherwise Dispose of, the following: (i) obsolete, worn-out, damaged, uneconomic, no longer commercially desirable, used or surplus
assets, rights and properties and other assets, rights and properties that are held for sale or no longer used, useful or necessary
for the operation of the Borrower’s and its Subsidiaries’ business, (ii) inventory, equipment, service agreements,
product sales, securities and goods held for sale or other immaterial assets in the ordinary course of business, (iii) cash, Cash
Equivalents and Investment Grade Securities in the ordinary course of business, (iv) books of business, client lists or related
goodwill in connection with the departure of related employees or producers in the ordinary course of business and (v) any such
other assets or Capital Stock to the extent that the aggregate Fair Market Value of such assets sold in any single transaction or
series of related transactions does not exceed the greater of (x) $1,500,000 and (y) 3% of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such assets are Disposed (measured as of
the date such assets are Disposed) based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(b)
the Borrower and the Restricted Subsidiaries may (i) enter into non-exclusive licenses or non-exclusive sublicenses of Intellectual
Property including in connection with a research and development agreement in which the other party receives a non-exclusive license to
Intellectual Property that results from such agreement, (ii) exclusively license or exclusively sublicense Intellectual Property if done
in the ordinary course of business or consistent with past practice of the Borrower and its Restricted Subsidiaries and (iii) assign,
lease, sublease, license or sublicense any real or personal property or terminate or allow to lapse any such assignment, lease, sublease,
license or sublicense, other than any Intellectual Property, in the ordinary course of business;
(c) the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise Dispose of other assets for Fair Market Value; provided
that (i) with respect to any Disposition pursuant to this Section 10.4(c) for a purchase price in excess of the greater of (x)
$10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently
ended on or prior to the date such assets are Disposed (measured as of the date such assets are Disposed) based upon the Section 9.1
Financials most recently delivered on or prior to such date, not less than 75% of the aggregate consideration therefor from such
Disposition and all other Dispositions made pursuant to this clause (c) since the Closing Date, on a cumulative basis, received by
the Borrower and its Restricted Subsidiaries, as the case may be, is in the form of cash or Cash Equivalents; provided that,
for purposes of determining what constitutes cash under this clause (i), (A) any liabilities (as shown on the Borrower’s or
such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto or if accrued or
incurred subsequent to the date of such balance sheets, such liabilities would have been shown on the Borrower’s or such
Restricted Subsidiary’s balance sheet or in the footnotes thereto as if such accrual or incurrence had taken place on or prior
to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other
than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee
with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly
released by all applicable creditors in writing shall be deemed to be cash or Cash Equivalents, (B) any securities, notes or other
obligations received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such
Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days
following the closing of the applicable Disposition shall be deemed to be cash or Cash Equivalents and (C) any Designated Non-Cash
Consideration received by the Borrower or such Restricted Subsidiary in respect of the applicable Disposition having an aggregate
Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is
outstanding at the time such Designated Non-Cash Consideration is received, not in excess of the greater of (x) $10,000,000 and (y)
20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to
the date such assets are Disposed (measured as of the date such assets are Disposed) based upon the Section 9.1 Financials most
recently delivered on or prior to such date, with the Fair Market Value of each item of Designated Non-Cash Consideration being
measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash or Cash
Equivalents, (ii) any non-cash proceeds received in the form of Indebtedness or Capital Stock are pledged to the Collateral Agent to
the extent required under Section 9.11, and (iii) to the extent applicable, the Net Cash Proceeds thereof are promptly offered to
prepay the Term Loans to the extent required by Section 5.2(a)(i);
(d) the
Borrower and the Restricted Subsidiaries may (i) Dispose of, discount, forgive or write off accounts receivable, notes receivable or
other current assets in the ordinary course of business or convert accounts receivable to notes receivable or make other
Dispositions of accounts receivable in connection with the compromise or collection thereof and (ii) sell or transfer accounts
receivable so long as the Net Cash Proceeds of any sale or transfer pursuant to this clause (ii) are offered to prepay the Term
Loans pursuant to Section 5.2(a)(i);
(e) the
Borrower and the Restricted Subsidiaries may Dispose of properties, rights or assets (including the Disposition or issuance of Capital
Stock) to the Borrower or to a Restricted Subsidiary; provided that, if the transferor of such property, right or asset is the
Borrower or a Subsidiary Guarantor and the transferee thereof is a Restricted Subsidiary that is not a Subsidiary Guarantor, then the
Indebtedness of such transferor assumed by such transferee shall be deemed an Incurrence of Indebtedness upon completion of such transaction
and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 (without giving effect to Section 10.1(j));
(f) the
Borrower and the Restricted Subsidiaries may Dispose of property (including like- kind exchanges) to the extent that (i) such property
is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly
applied to the purchase price of such replacement property;
(g) the
Borrower and the Restricted Subsidiaries may sell, transfer and otherwise Dispose of Investments in Joint Ventures to the extent required
by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in Joint Venture arrangements and
similar binding arrangements;
(h) the
Borrower and the Restricted Subsidiaries may effect any transaction permitted by Section 10.3, 10.5 or 10.6 and may create, incur, assume
or suffer to exist Liens permitted by Section 10.2;
(i) the
Borrower and the Restricted Subsidiary may transfer property subject to Recovery Events, including foreclosures, condemnation, expropriation,
forced disposition, eminent domain or any similar action with respect to assets;
(j) the
Borrower and the Restricted Subsidiaries may make Dispositions listed on Schedule 10.4 and
Dispositions (i) of non-core or obsolete assets acquired in connection with Acquisitions or other similar Investments that are not
used or useful in, or are surplus to, the business of the Borrower and the Restricted Subsidiaries and (ii) of other assets acquired
in connection with Acquisitions or other similar Investments permitted under this Agreement for Fair Market Value; provided
that any such Dispositions referred to in this clause (ii) shall be made or contractually committed to be made within 365 days of
the date such assets were acquired by the Borrower or such Restricted Subsidiary;
(k)
the Borrower and the Restricted Subsidiaries may unwind or terminate any Hedging Agreement or Cash Management Agreement
and allow for the expiration of any options agreement with respect to any Real Property or personal property;
(l)
the Borrower and the Restricted Subsidiaries may make Dispositions of residential Real Property and related assets in connection
with relocation activities for officers, managers, consultants, directors, employees or independent contractors (or their Immediate Family
Members) of Holdings (or any Parent Entity thereof or any Equityholding Vehicle), the Borrower and the Restricted Subsidiaries;
(m)
the Borrower and the Restricted Subsidiaries may issue directors’ qualifying shares and shares issued to foreign nationals,
in each case as required by Applicable Laws;
(n) the
Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower
and its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(o) the
Borrower and the Restricted Subsidiaries may allow the lapse of, abandon, cancel or cease to maintain or cease to enforce
Intellectual Property rights that are no longer (i) used, useful or necessary for the on-going business of the Borrower and its
Restricted Subsidiaries, (ii) economically practicable or commercially reasonable to maintain or (iii) in the best interest of or
material for the operation of the Borrower’s and the Restricted Subsidiaries’ businesses (including by allowing any
registrations or any applications for registration thereof to lapse), in each case in the ordinary course of business or consistent
with past practice in the reasonable business judgment of the Borrower;
(p)
the Borrower and the Restricted Subsidiaries may surrender, terminate or waive any contract rights or surrender, waive,
settle, modify, compromise or release any contract rights, litigation claims or any other claims of any kind (including in tort) in the
ordinary course of business;
(q)
the Borrower and the Restricted Subsidiaries may make Dispositions or issuances of the Capital Stock in, Indebtedness of,
or other securities issued by, an Unrestricted Subsidiary;
(r)
the Borrower and the Restricted Subsidiaries may effect a Sale Leaseback (i) with respect to property that is acquired after
the Closing Date so long as such Sale Leaseback is consummated within 270 days of the acquisition of such property or (ii) if at the time
the lease in connection therewith is entered into, and after giving effect to the entering into of such lease, such lease is otherwise
permitted under this Agreement;
(s)
the Borrower may issue Qualified Capital Stock and, to the extent permitted by Section 10.1, Disqualified Capital Stock;
(t)
the Borrower and the Restricted Subsidiaries may make Dispositions (including those of the type otherwise described herein)
after the Closing Date in an aggregate amount not to exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower
and its Restricted Subsidiaries for the Test Period most recently ended on or prior the date such assets are Disposed (measured as of
such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(u)
to the extent allowable under Section 1031 of the Code or any comparable or successor provision, any exchange of like property
(excluding any boot thereon) for use in a Similar Business;
(v)
sales or transfers of accounts receivable, or participations therein and related assets, in connection with any Qualified
Receivables Facility;
(w)
sales or dispositions of Capital Stock of any Foreign Subsidiary in order to qualify members of the governing body of such
Subsidiary if required by Applicable Law;
(x)
samples, including time-limited evaluation software, provided to customers or prospective customers;
(y) de minimis amounts of equipment provided to employees;
(z)
the Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with the
Borrower or any Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Capital
Stock, (iii) transfer any intercompany Indebtedness to the Borrower or any Restricted Subsidiary (subject to applicable subordination
terms if Indebtedness of a Credit Party is transferred to a non-Credit Party), (iv) settle, discount, write off, forgive or cancel any
intercompany Indebtedness or other obligation owing by Holdings, the Borrower or any Restricted Subsidiary, (v) settle, discount, write
off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of any Parent Entity,
Holdings, the Borrower or any Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights and settle
or waive contractual or litigation claims; and
(aa) the Borrower and the Restricted Subsidiaries may make Dispositions of any asset between or among the Borrower and/or its Restricted
Subsidiaries as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to clauses
(a) through (s) above.
10.5
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, make
any Investment, except (each of the following exceptions, the “Permitted Investments”):
(a)
extensions of trade credit, asset purchases (including purchases of inventory, Intellectual Property, supplies, materials
or equipment or other similar items), the lease or sublease of any asset and the licensing or sublicensing or contribution of Intellectual
Property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
(b)
Investments in assets constituting, or at the time of making such Investments were, cash or Cash Equivalents;
(c)
loans and advances to officers, managers, directors, employees, consultants and independent contractors of Holdings (or
any Parent Entity thereof), the Borrower or any of its Restricted Subsidiaries (i) to finance the purchase of Capital Stock of Holdings
(or any Parent Entity thereof or any Equityholding Vehicle); provided that the amount of such loans and advances used to acquire
such Capital Stock shall be contributed to the Borrower in cash as common equity, (ii) for reasonable and customary business related travel
expenses, entertainment expenses, moving expenses and similar expenses or payroll expenses, in each case incurred in the ordinary course
of business, and (iii) for additional purposes not contemplated by subclause (i) or (ii) above; provided that, after giving pro
forma effect to the making of any such loan or advance, the aggregate principal amount of all loans and advances outstanding under this
Section 10.5(c)(iii) shall not exceed the greater of (x) $7,500,000 and (y) 15% of Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for the Test Period most recently ended on or prior to the date such Investment is made (measured as of such date) based
upon the Section 9.1 Financials most recently delivered on or prior to such date;
(d) Investments
(i) existing on the Closing Date or (ii) contemplated on the Closing Date or made pursuant to binding agreements in effect on the
Closing Date and, in each case, listed on Schedule 10.5 and
(iii) in the case of each of clauses (i) and (ii), any modification, replacement, renewal, extension or reinvestment thereof, so
long as the aggregate amount of all Investments pursuant to this Section 10.5(d) is not increased at any time above the amount of
such Investments or binding agreements existing or contemplated on the Closing Date, except pursuant to the terms of such Investment
or binding agreements existing or contemplated as of the Closing Date (including as a result of the accrual or accretion of original
issue discount or the issuance of payment-in-kind obligations) or as otherwise permitted by this Section 10.5 or Section 10.6;
(e)
Investments in Hedging Agreements permitted by Section 10.1(i) and Cash Management Agreements permitted by Section 10.1;
(f)
Investments received (i) in connection with, or as a result of, any bankruptcy, workout, reorganization or recapitalization
of suppliers, trade creditors or customers or in settlement or compromise of delinquent obligations and disputes with, or judgments against,
or other disputes with, customers, trade creditors or suppliers, including pursuant to any plan of reorganization or similar arrangement
upon bankruptcy or insolvency of any customer, trade creditor or supplier, (ii) in satisfaction of judgments against other Persons, (iii)
as a result of the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment
or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Person who are not Affiliates;
(g)
Investments to the extent that the payment for such Investments is made solely with the Capital Stock (other than Disqualified
Capital Stock) of Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower;
(h)
Investments constituting non-cash proceeds of sales, transfers and other Dispositions of assets to the extent permitted
by Sections 10.3 and 10.4 (other than clause (h));
(i)
(i) Investments by or among the Borrower or any Restricted Subsidiary in the Borrower or any other Restricted Subsidiary
(including guarantees of obligations of any Restricted Subsidiary and any prepayments, repurchases, redemptions, defeasances, acquisitions
and other similar payments of any Indebtedness of any such Person not prohibited by Section 10.7) and (ii) Investments by the Borrower
or any Restricted Subsidiary in any Unrestricted Subsidiary or Joint Venture as valued at the Fair Market Value of such Investment at
the time each such Investment is made; provided that the aggregate amount of such Investment (as so valued) shall not exceed the
greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most
recently ended on or prior to the date such Investment is made (measured as of such date) based upon the Section 9.1 Financials most recently
delivered on or prior to such date;
(j)
Investments consisting of advances, loans, rebates and extensions of credit in the nature of accounts receivable, notes
receivable security deposits and prepayments (including prepayments of expenses) arising and trade credit granted in the ordinary course
of business or consistent with past practice, and Investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors and other deposits, prepayments and other credits to suppliers in the ordinary course of business or consistent
with past practice;
(k)
the Borrower may make a loan to Holdings (or any Parent Entity thereof or any Equityholding Vehicle) that could otherwise
be made as a Restricted Payment (other than a Restricted Investment) to Holdings (or any Parent Entity thereof or any Equityholding Vehicle)
under Section 10.6, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under
the applicable clause of Section 10.6;
(l)
Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC
Article 4 customary trade arrangements with customers;
(m)
advances of payroll payments to employees, consultants or independent contractors or other advances of salaries or compensation
to officers, managers, employees, consultants or independent contractors, in each case in the ordinary course of business;
(n)
Guarantees by the Borrower or any Restricted Subsidiary of leases or subleases (other than Financing Lease Obligations),
Contractual Obligations or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course
of business;
(o)
Investments made to acquire, purchase, repurchase, redeem, acquire or retire Capital Stock of Holdings (or any Parent Entity
thereof or any Equityholding Vehicle) or the Borrower owned by any employee stock ownership plan or key employee stock ownership plan
of Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower;
(p) Investments constituting Permitted Acquisitions;
(q) any
additional Investments (including Investments in Minority Investments, Investments in Unrestricted Subsidiaries and Investments in
Joint Ventures or similar entities that do not constitute Restricted Subsidiaries), as valued at the Fair Market Value of such
Investment at the time each such Investment is made; provided that the aggregate amount of such Investment (as so valued)
shall not cause the aggregate amount of all such Investments made pursuant to this Section 10.5(q) measured at the time such
Investment is made, to exceed, after giving pro forma effect to such Investment, the sum of (i) the greater of (x) $25,000,000 and
(y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior
the date such Investment is made (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or
prior to such date, (ii) the Available Equity Amount at such time and (iii) the Available Amount at such time; provided, however,
that if any Investment pursuant to this Section 10.5(q) is made in any Person that is not a Restricted Subsidiary at the date of the
making of such Investment and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Borrower or a Restricted Subsidiary, in each case, after such date, such Investment shall thereafter be deemed
to have been made pursuant to Section 10.5(i)(i) above and shall cease to have been made pursuant to this Section 10.5(q) for so
long as such Person continues to be a Restricted Subsidiary;
(r) Investments arising as a result of Sale Leasebacks;
(s) Investments
held by any Person acquired by the Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged, consolidated
or amalgamated with or into the Borrower or merged, consolidated or amalgamated with or into a Restricted Subsidiary in accordance
with Section 10.3 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with
such acquisition, merger, consolidation or amalgamation and were in existence on the date
of such acquisition, merger, consolidation
or amalgamation;
(t)
Investments consisting of Indebtedness, fundamental changes, Dispositions, Restricted Payments (other than Restricted Investments) and
debt payments permitted under Sections 10.1, 10.3 (but only any lettered paragraphs thereof), 10.4 (other than 10.4(e) or 10.4(ih)
(as such Section 10.4(ih) relates to Section
10.5)), 10.6 (other than 10.6(c)(i)) and 10.7;
(u)
the forgiveness, capitalization or conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any
Restricted Subsidiary and permitted by Section 10.1;
(v)
Restricted Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply
with the requirements of Sections 9.10, 9.11 and 9.14, 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 permitted by this Section 10.5,
and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously
with the closing of such transactions, such new Restricted Subsidiary shall not be required to take the actions set forth in Sections
9.10, 9.11 and 9.14 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);
(w)
Investments consisting of earnest money deposits required in connection with purchase agreements or other Acquisitions;
(x)
Investments consisting of loans and advances to Holdings (or any Parent Entity or any Equityholding Vehicle) and its Subsidiaries
in connection with the reimbursement of expenses incurred on behalf of the Borrower and its Restricted Subsidiaries in the ordinary course
of business;
(y)
Investment Grade Securities maturing no more than 24 months from the date of acquisition;
(z)
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 Borrower or any of its Restricted Subsidiaries;
(aa)
non-cash or non-Cash Equivalent Investments in connection with tax planning and reorganization activities; provided that,
after giving pro forma effect to any such activities, the Liens on the Collateral securing the Obligations would not be materially impaired;
(bb) loans and advances to customers in the ordinary course of business in respect of the payment of insurance premiums;
(cc)
any Investment made in connection with the Transactions, including the Mergers, the transactions set forth in the Acquisition Agreement
and any transactions in connection with the Existing Debt Refinancing;
(dd) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business;
(ee) 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 and sublicensees;
(ff) Capital Expenditures
permitted or not restricted under this Agreement;
(gg) deposits in the ordinary course of business to secure the performance of Non-Financing Lease Obligations or utility contracts,
or in connection with obligations in respect of tenders, statutory obligations, surety, stay and appeal bonds, bids, licenses, leases,
government contracts, trade contracts, performance and return-of-money bonds, completion guarantees and other similar obligations (exclusive
of obligations for the payment of borrowed money) incurred in the ordinary course of business;
(hh) Investments
made in the ordinary course of business in connection with (i) obtaining, maintaining or renewing client and customer contracts and (ii)
loans or advances made to, and guarantees with respect to obligations of, independent operators, distributors, suppliers, licensors,
sublicensors, licensees and sublicensees.
(ii)
additional Investments so long as, subject to Section 1.11, (x) no Event of Default shall have occurred and be continuing or would
result therefrom and (y) after giving pro forma effect to such Investment, the Borrower and the Restricted Subsidiaries would be in compliance,
on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the
Test Period most recently ended on or prior to the date of the making of such Investment, as if such Investment and any other transactions
being consummated in connection therewith occurred on the first day of such Test Period, of no greater than 4.75:1.00;
(jj) Investments
in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this Section
10.5(jj) that are at that time outstanding, not to exceed the greater of $15,000,000 and 30% of Consolidated EBITDA of the Borrower
and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date of such Investment (measured as of
such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date; provided, however,
that if any Investment pursuant to this Section 10.5(jj) is made in any Person that is not a Restricted Subsidiary at the date of
the making of such Investment and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of
related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets
to, or is liquidated into, the Borrower or a Restricted Subsidiary, in each case, after such date, such investment shall thereafter
be deemed to have been made pursuant to Section 10.5(i) above and shall cease to have been made pursuant to this Section 10.5(jj)
for so long as such Person continues to be a Restricted Subsidiary;
(kk) to
the extent not required to be applied to prepay the Term Loans in accordance with Section 5.2(a)(i), Investments made in accordance with
clause (v) of the definition of “Net Cash Proceeds” with the proceeds received in connection with a Recovery Prepayment Event;
(ll) Investments
resulting from pledges and deposits permitted by Sections 10.2(a)(i), 10.2(b) (with respect to clause (d) of the definition of “Permitted
Encumbrances”) and 10.1(n);
(mm) any Investment in any Subsidiary or any Joint Venture in connection with intercompany cash management arrangements or related activities
arising in the ordinary course of business or consistent with past practice;
(nn)
Investments in deposit accounts and securities accounts in the ordinary course of business;
(oo)
Investments solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this
Section 10.5;
(pp) the acquisition of additional Capital Stock of Restricted Subsidiaries from minority equityholders (it being understood that to
the extent that any Restricted Subsidiary that is not a Credit Party is acquiring Capital Stock from minority equityholders, then this
clause (pp) shall not in and of itself create, or increase the capacity under, any basket for Investments by Credit Parties in any Restricted
Subsidiary that is not a Credit Party);
(qq) Investments
in Capital Stock in any Subsidiary resulting from any sale, transfer or other Disposition by the Borrower or any Subsidiary permitted
by Section 10.4, including as a result of any contribution from any Parent Entity or distribution to any Subsidiary of such Capital Stock;
(rr)
Term Loans repurchased by the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance
with this Agreement;
(ss)
Guarantee obligations of the 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 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;
(tt)
Investments in any Receivables Subsidiary that, in the good faith determination of the Borrower are necessary or advisable to effect
any Qualified Receivables Facility or any repurchase obligation in connection therewith;
(uu) additional Investments in an aggregate amount not to exceed the portion, if any, of the Restricted Payment Amount, on the relevant
date of determination that the Borrower elects to apply pursuant to this clause (uu); and
(vv) Acquisitions by the Borrower of obligations of one or more directors, officers, employees, member or management or consultants
of Holdings, the Borrower or its Subsidiaries in connection with such Person’s acquisition of Capital Stock of any Parent Entity
or Equityholding Vehicle, so long as no cash is actually advanced by the Borrower or any of its Subsidiaries to such Person in connection
with the acquisition of any such obligations.
10.6 Limitation
on Restricted Payments. The Borrower will not pay any dividends (other than dividends payable solely in the Qualified Capital
Stock of the Borrower) or return any capital to its equity holders or make any other distribution, payment or delivery of property
or cash to its equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration,
any shares of any class of its Capital Stock or the Capital Stock of any Parent Entity or any Equityholding Vehicle now or hereafter
outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or
set aside any funds for any of the foregoing purposes (but excluding, in each case, the payment of compensation in the ordinary
course of business to equity holders of any such Capital Stock who are employees of the Borrower or any Restricted Subsidiary), or
permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in
connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the
Borrower or any Equityholding Vehicle or the Capital Stock of the Borrower, now or hereafter outstanding (or any options or warrants
or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or any
Equityholding Vehicle or the Capital Stock of the Borrower) or make any Restricted Investment (all of the foregoing,
“Restricted Payments”); provided that:
(a) (i)
the Borrower may (or may pay Restricted Payments to permit any Parent Entity thereof or any Equityholding Vehicle to) redeem,
repurchase, retire or otherwise acquire in whole or in part any Capital Stock (“Treasury Capital Stock”) of the
Borrower or any Restricted Subsidiary or any Capital Stock of any Parent Entity or Equityholding Vehicle, in exchange for another
class of Capital Stock or rights to acquire its Capital Stock or with proceeds from equity contributions or sales or issuances
(other than to the Borrower or a Restricted Subsidiary) of new shares of such Capital Stock to the extent contributed to the
Borrower (in each case other than Disqualified Capital Stock, “Refunding Capital Stock”) substantially
concurrently with such contribution or sale or issuance; provided that any terms and provisions material to the interests of
the Lenders, when taken as a whole, contained in such Refunding Capital Stock are at least as advantageous to the Lenders as those
contained in the Capital Stock redeemed thereby and (ii) the Borrower, and any Restricted Subsidiary may pay Restricted Payments
payable solely in the Capital Stock (other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such
Person;
(b) so
long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may redeem, acquire, retire or
repurchase (and the Borrower may declare and pay Restricted Payments to any Parent Entity thereof or any Equityholding Vehicle, the
proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or
equity appreciation or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s
Parent Entities or any Equityholding Vehicle to so redeem, retire, acquire or repurchase their Capital Stock (or any options or
warrants or equity appreciation or similar rights issued with respect to any of its Capital Stock)) held by future, current or
former officers, managers, consultants, directors, employees and independent contractors (or their respective Controlled Investment
Affiliates or Immediate Family Members) of any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the
Subsidiaries of the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in
accordance with any equity option or equity appreciation or similar rights plan, any management, director and/or employee equity
ownership or incentive plan, equity subscription plan or subscription agreement, employment termination agreement or any other
employment agreements or equity holders’ agreement (including, for the avoidance of doubt, any principal or interest payable
on any Indebtedness Incurred by the Borrower or any Parent Entity or Equityholding Vehicle in connection with any such redemption,
acquisition, retirement or repurchase); provided that, except with respect to non- discretionary repurchases, acquisitions,
retirements or redemptions pursuant to the terms of any equity option or equity appreciation rights plan, any management, director
and/or employee equity ownership or incentive plan, equity subscription plan or subscription agreement, employment termination
agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of
all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of
such Capital Stock) so redeemed, acquired, retired or repurchased, does not exceed the sum of (i) $10,000,000 in any calendar year
(which shall increase to $20,000,000 in any calendar year following the consummation of a Qualifying IPO); notwithstanding the
foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving pro forma effect to any carry
forward) may be carried forward to succeeding calendar years and utilized to make payments pursuant to this Section 10.6(b) plus
(ii) all proceeds obtained by any Parent Entity or any Equityholding Vehicle (and contributed to the Borrower) or the Borrower after
the Closing Date from the sale of such Capital Stock to other future, current or former officers, managers, consultants, employees,
directors and independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) in
connection with any plan or agreement referred to above in this clause (b) plus (iii) all Net Cash Proceeds obtained from any
key-man life insurance policies received by the Borrower (or any Parent Entity or Equityholding Vehicle to the extent contributed to
the Borrower) after the Closing Date less (iv) the amount of any previous Restricted Payment made pursuant to clauses (ii)
and (iii) of this Section 10.6(b); and provided, further, that, the cancellation of Indebtedness owing to the Borrower
or any Restricted Subsidiary from any future, current or former employees, officers, managers, directors, consultants or independent
contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent Entity of the Borrower,
any Equityholding Vehicle, Holdings or any of the Restricted Subsidiaries in connection with a redemption, acquisition, retirement
or repurchase of its Capital Stock will not be deemed to constitute a Restricted Payment for purposes of this Agreement; provided
that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to
this Section 10.6(b) shall reduce the amounts available pursuant to this Section 10.6(b);
(c) (i)
to the extent constituting Restricted Payments, (other than Restricted Investments), the Borrower and any Restricted Subsidiary may
make Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Restricted Payments to the Borrower and to
Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and
any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership
interests);
(d) to
the extent constituting Restricted Payments, the Borrower and any Restricted Subsidiary may enter into and consummate transactions
expressly permitted by any provision of Section 10.3 and 10.4 (other than 10.4(h)), and the Borrower may pay Restricted Payments to
any Parent Entity thereof or any Equityholding Vehicle as and when necessary to enable such Parent Entity or Equityholding Vehicle
to effect the transactions permitted by such section;
(e)
the Borrower may redeem, acquire, retire or repurchase Capital Stock of any Parent Entity or any Equityholding Vehicle of
the Borrower or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all
or a portion of the exercise price of such options or warrants, and the Borrower may pay Restricted Payments to a Parent Entity or Equityholding
Vehicle thereof as and when necessary to enable such Parent Entity or Equityholding Vehicle to effect such repurchases;
(f)
in addition to the foregoing Restricted Payments (i) the Borrower may make additional Restricted Payments, so long as (x)
no Event of Default shall have occurred and be continuing or would result therefrom and (y) after giving pro forma effect to such Restricted
Payment, the Borrower would be in compliance, on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, calculated
as of the last day of the Test Period most recently ended on or prior to the date of payment of such Restricted Payment, as if such Restricted
Payment and any other transactions being consummated in connection therewith occurred on the first day of such Test Period, of no greater
than 4.25:1.00, (ii) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed an amount equal to the
Available Amount at the time such Restricted Payment is paid, so long as no Event of Default shall have occurred and be continuing or
would result therefrom, (iii) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed an amount equal
to the Available Equity Amount at the time such Restricted Payment is paid and (iv) so long as no Event of Default shall have occurred
and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount not to exceed
the portion, if any, of the Restricted Payment Amount, on the relevant date of determination, that the Borrower elects to apply pursuant
to this clause (iv); provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused
amounts available pursuant to this Section 10.6(f) shall reduce the amounts available pursuant to this Section 10.6(f);
(g) the Borrower may make and pay Restricted Payments:
(i)
the proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower to
pay) any tax liability in respect of income attributable to Holdings, the Borrower and its Subsidiaries, but not in excess of the tax
liability that Holdings and/or the Borrower would incur if it filed tax returns as the parent of a consolidated, combined, unitary or
aggregate group for itself and its Subsidiaries (and net of any payment already made and to be made by the Borrower to a taxing authority
to satisfy such tax liability); provided that a Restricted Payment attributable to any taxes attributable to an Unrestricted Subsidiary
shall be permitted only to the extent such Unrestricted Subsidiary distributed cash to the Borrower or its Restricted Subsidiaries;
(ii)
the proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or
any Equityholding Vehicle to pay) its operating expenses incurred in the ordinary course (including related to maintenance of organizational
existence), general administrative costs and other overhead costs and expenses (including administrative, legal, accounting, professional
and similar fees and expenses provided by third parties, including the Borrower’s proportionate share of such amount relating to
such Parent Entity being a Public Company), plus any indemnification claims made by employees, managers, consultants, independent
contractors, directors or officers of any Parent Entity of the Borrower or any Equityholding Vehicle;
(iii)
the proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or
any Equityholding Vehicle to pay) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, required to maintain
its (or any of its Parent Entities’ or Equityholding Vehicles’) corporate or other legal existence;
(iv)
the proceeds of which shall be used to make Investments contemplated by Section 10.5(c);
(v)
the proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or
any Equityholding Vehicle to pay) fees and expenses (other than to Affiliates of the Borrower) related to any successful or unsuccessful
equity issuance or offering or Incurrence of Indebtedness, Refinancing, Disposition or acquisition or Investment transaction permitted
by this Agreement;
(vi)
to the extent not constituting a Restricted Investment, the proceeds of which shall be used to finance Investments that
would otherwise be permitted to be made pursuant to Section 10.5 or as a Restricted Investment pursuant to Section 10.6 if made by the
Borrower or a Restricted Subsidiary; provided that (i) such Restricted Payment shall be made substantially concurrently with the
closing of such Investment, (ii) such Parent Entity shall, immediately following the closing thereof, cause (A) all property acquired
(whether assets or Capital Stock) to be contributed to the capital of the Borrower or one of the Restricted Subsidiaries or (B) the merger,
consolidation or amalgamation of the Person formed or acquired with or into the Borrower or one of the Restricted Subsidiaries (to the
extent not prohibited by Section 10.3) in order to consummate such Investment and (iii) such Parent Entity and its Affiliates (other than
the Borrower or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the
extent the Borrower or a Restricted Subsidiary could have otherwise given such consideration or made such payment in compliance with this
Agreement; and
(vii)
the proceeds of which shall be used to pay customary salary, bonus, severance and other benefits payable to directors, officers,
managers, employees, consultants or independent contractors of any Parent Entity of the Borrower or any Equityholding Vehicle to the extent
such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries,
including the Borrower’s proportionate share of such amount relating to such Parent Entity being a Public Company;
(h)
the Borrower may (or may make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to) (i) pay cash
in lieu of fractional shares in connection with any Restricted Payment (including in connection with the exercise of warrants, options
or other securities convertible into or exchangeable for Capital Stock), share split, reverse share split or combination thereof or any
Acquisition or other similar Investment and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments
in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with
its terms;
(i)
the Borrower may pay (or may make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to pay) Restricted
Payments in an amount equal to withholding or similar taxes payable or expected to be payable by any future, current or former employee,
director, manager, consultant or independent contractor (or any of their respective Immediate Family Members) of any Parent Entity of
the Borrower, any Equityholding Vehicle, the Borrower or any Subsidiary of the Borrower in connection with the exercise or vesting of
Capital Stock or other equity awards or any repurchases, redemptions, acquisitions, retirements or withholdings of Capital Stock in connection
with any exercise of Capital Stock or other equity options or warrants or the vesting of Capital Stock or other equity awards if such
Capital Stock represent all or a portion of the exercise price of, or withholding obligation with respect to, such options or, warrants
or other Capital Stock or equity awards;
(j)
the Borrower may make payments (or make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to make
such payments) described in Sections 10.11(c), (e), (h), (i), (j), (l) and (s) (subject to the conditions set out therein);
(k)
the Borrower may make Restricted Payments and distributions within sixty (60) days after the date of declaration thereof,
if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6;
(l)
so long as no Event of Default is continuing or would result therefrom, after a Qualifying IPO, the Borrower may make Restricted
Payments to any Parent Entity of the Borrower or any Equityholding Vehicle so that such Parent Entity or Equityholding Vehicle can make
Restricted Payments to its equity holders in an aggregate per annum amount not exceeding 6.0% of the Net Cash Proceeds of such Qualifying
IPO; provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available
pursuant to this Section 10.6(l) shall reduce the amounts available pursuant to this Section 10.6(l);
(m)
the Borrower and any Restricted Subsidiary may pay and make any Restricted Payment in connection with (i) the Transactions
or Restricted Payments necessary to consummate the Transactions, including (A) in respect of any payments required to be made after the
Closing Date in connection with, or necessary to consummate, the Transactions (including, for the avoidance of doubt, and to the extent
constituting a Restricted Payment, payments in respect of the 2017 Contingent Value Rights, the Deferred Blocker Consideration and the
Deferred Company Consideration), (B) the payment of the Transaction Expenses related thereto or used to fund amounts owed to Affiliates
(including those made to any Parent Entity of the Borrower or Equityholding Vehicle to permit payment by such Parent Entity or Equityholding
Vehicle), (C) in respect of working capital adjustments or purchase price adjustments or to satisfy indemnity and other similar obligations,
in each case as set forth in the Acquisition Agreement, (D) to holders of restricted stock, restricted stock units or similar equity awards
and (E) to dissenting equityholders in connection with, or as a result of, their exercise of appraisal rights and the settlement of any
claims or actions (whether actual, contingent or potential) with respect thereto (including any accrued interest) in connection with the
Transactions or any other Acquisition or other similar Investment, (ii) working capital adjustments or purchase price adjustments in connection
with any Acquisition or other similar Investment and (iii) the satisfaction of indemnity and other similar obligations in connection with
any Acquisition or other similar Investment; provided that any Indebtedness Incurred in reliance upon the Available RP Capacity
Amount utilizing the unused amounts available pursuant to this Section 10.6(m) shall reduce the amounts available pursuant to this Section
10.6(m);
(n) the
Borrower may make payments made to optionholders or holders of profits interests of the Borrower or any Parent Entity or any
Equityholding Vehicle in connection with, or as a result of, any distribution being made to shareholders of the Borrower or any
Parent Entity or any Equityholding Vehicle (to the extent such distribution is otherwise permitted hereunder), which payments are
being made to compensate such optionholders or holders of profits interests as though they were shareholders at the time of, and
entitled to share in, such distribution (it being understood that no such payment may be made to an optionholder or holder of
profits interests pursuant to this clause to the extent such payment would not have been permitted to be made to such optionholder
or holder of profits interests if it were a shareholder pursuant to any other paragraph of this Section 10.6, and any payment
hereunder shall reduce payments available under such other paragraph);
(o)
the Borrower may pay Restricted Payments to pay for the redemption, acquisition, retirement or repurchase, in each case
for nominal value, of Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower from a former
investor of a business acquired in an Acquisition or other similar Investment or a current or former employee, officer, director, manager
or consultant of a business acquired in an Acquisition or other similar Investment (or their Controlled Investment Affiliates or Immediate
Family Members), which Capital Stock was issued as part of an earn- out or similar arrangement in the acquisition of such business, and
which redemption, acquisition, retirement or repurchase relates the failure of such earn-out to fully vest;
(p)
the Borrower may make distributions, by Restricted Payment or otherwise, or other transfer or Disposition of shares of Capital
Stock of Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are Cash Equivalents); and
(q)
the Borrower may make payments or distributions to satisfy dissenters’ rights pursuant to or in connection with an
acquisition, merger, consolidation, amalgamation or transfer of assets that complies with Section 10.3;
(r)
Holdings may make Restricted Payments constituting interest payments on Disqualified Capital Stock, to the extent such Disqualified
Capital Stock constitutes Indebtedness, was Incurred in compliance with Section 10.1 and such Restricted Payments are included in the
calculation of Consolidated Interest Expense;
(s)
the Borrower may make Restricted Payments in an aggregate amount that does not exceed the aggregate amount of Excluded Contributions
received since the Closing Date (not otherwise building Available Equity Amount or constituting a Cure Amount or used to incur Indebtedness);
provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available
pursuant to this Section 10.6(s) shall reduce the amounts available pursuant to this Section 10.6(s);
(t)
the Borrower may make distributions or payments of Receivables Fees and purchases of Receivables in connection with any
Qualified Receivables Facility or any repurchase obligation in connection therewith;
(u)
the Restricted Subsidiaries may make Restricted Payments in connection with the acquisition of additional Capital Stock
in any Restricted Subsidiary from minority equityholders; and
(v)
so long as no Event of Default is continuing or would result therefrom, after a Qualifying IPO, the Borrower may make Restricted
Payments to any Parent Entity of the Borrower or any Equityholding Vehicle so that such Parent Entity or Equityholding Vehicle can make
Restricted Payments to its equity holders in an aggregate per annum amount not exceeding 7.0% of the Market Capitalization; provided
that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to this
Section 10.6(w) shall reduce the amounts available pursuant to this Section 10.6(w).
The amount
of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the assets or
securities proposed to be transferred or issued by the Borrower or any Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. For the avoidance of doubt, this Section 10.6 shall not restrict the making of any AHYDO Catch-Up Payment with
respect to, and required by the terms of, any Indebtedness of the Borrower or any of the Restricted Subsidiaries permitted to be
incurred under the terms of this Agreement. Indebtedness Incurred under Section 10.1(q) shall reduce availability under this Section
10.6 in an amount equal to the aggregate principal amount incurred from time to time under Section 10.1(q), whether or not
outstanding, except in respect of amounts forgiven or cancelled without payment being made.
10.7 Limitations on Debt Payments and Amendments.
(a) The
Borrower will not, and will not permit any of the Restricted Subsidiaries to, prepay, repurchase, redeem or otherwise defease or
make similar payments in respect of any Junior Debt prior to its stated maturity (it being understood that payments of regularly
scheduled interest, fees, expenses, indemnification obligations and, so long as no Event of Default under Section 11.1 or 11.5 is
continuing or would result therefrom, AHYDO Catch-Up Payments shall be permitted); provided, however, the Borrower or
any Restricted Subsidiary may prepay, repurchase, redeem, defease, acquire or otherwise make payments on any such Indebtedness (i)
with the proceeds of any Permitted Refinancing Indebtedness in respect of such Indebtedness, (ii) by converting or exchanging any
such Indebtedness to Capital Stock of Holdings or any of its Parent Entities and (iii) (A) so long as (x) no Event of Default has
occurred and is continuing or would result therefrom and (y) after giving pro forma effect to such prepayment, repurchase,
redemption, defeasance, acquisition or other payment, the Borrower would be in compliance, on a pro forma basis, with a Consolidated
Total Debt to Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most recently ended on or prior to the
date of any such payment, as if such prepayment, repurchase, redemption, defeasance, acquisition or other payment and any other
transactions being consummated in connection therewith occurred on the first day of such Test Period, of no greater than 4.25:1.00
after giving pro forma effect thereto, (B) in an aggregate amount not to exceed the Available Amount at the time of such prepayment,
repurchase, redemption, defeasance, acquisition or other payment, so long as no Event of Default has occurred and is continuing or
would result therefrom, (C) in an aggregate amount not to exceed the Available Equity Amount at the time of such prepayment,
redemption, repurchase, defeasance, acquisition or other payment, (D) in
an aggregate amount not to exceed the portion, if any, of the Restricted Payment Amount, on the relevant date of determination that
the Borrower elects to apply pursuant to this clause (D), (E) any purchase, repurchase, redemption, defeasance or other acquisition
or retirement of Junior Debt Incurred pursuant to Section 10.1(j) (other than Indebtedness Incurred (I) to provide all or any
portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a
Restricted Subsidiary or was otherwise acquired by the Borrower or a Restricted Subsidiary or (II) otherwise in connection with or
contemplation of such acquisition), so long as such purchase, repurchase, redemption, defeasance or other acquisition or similar
payment is made or deposited with a trustee or other similar representative of the holders of such Junior Debt contemporaneously
with, or substantially simultaneously with, the closing of the Acquisition under which such Junior Debt is Incurred, (F) any
mandatory redemption, repurchase, retirement, termination or cancellation of Disqualified Capital Stock (to the extent such
Disqualified Capital Stock constitutes Indebtedness and was Incurred in compliance with Section 10.1, (G) [reserved] and (H) the
payment, redemption, repurchase, retirement, termination or cancellation of Indebtedness within 60 days of the date of the
Redemption Notice if, at the date of any payment, redemption, repurchase, retirement, termination or cancellation notice in respect
thereof (the “Redemption Notice”), such payment, redemption, repurchase, retirement termination or cancellation
would have complied with another provision of this Section 10.7(a); provided that such payment, redemption, repurchase,
retirement termination or cancellation shall reduce capacity under such other provision.
Notwithstanding
the foregoing and for the avoidance of doubt, nothing in this Section 10.7 shall prohibit (i) the repayment, prepayment, repurchase, redemption
or other payment of intercompany subordinated Indebtedness owed among the Borrower and/or the Restricted Subsidiaries, in either case
unless an Event of Default has occurred and is continuing and the Borrower has received a notice from the Collateral Agent instructing
it not to make or permit the Borrower and/or the Restricted Subsidiaries to make any such repayment or prepayment or (ii) substantially
concurrent transfers of credit positions in connection with intercompany debt restructurings so long as
such Indebtedness is permitted by Section
10.1 after giving pro forma effect to such transfer.
(b)
The Borrower will not, and will not permit any of the Restricted Subsidiaries to, waive, amend or modify any term or condition
in any Subordinated Indebtedness Documentation (or, in each case, any documentation governing any Permitted Refinancing Indebtedness in
respect thereof) to the extent that any such waiver, amendment or modification, taken as a whole, would be materially adverse to the interests
of the Lenders.
10.8 Negative
Pledge Clauses. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into or permit to exist
any Contractual Obligation (other than this Agreement, any other Credit Document, any Permitted Additional Debt Documents related to
any secured Permitted Additional Debt or any document governing any secured Credit Agreement Refinancing Indebtedness and any
documentation governing any Permitted Refinancing Indebtedness Incurred to Refinance any such Indebtedness) that limits the ability
of the Borrower or any Guarantor to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the
Secured Parties with respect to the Obligations or under the Credit Documents; provided that the foregoing shall not apply to
Contractual Obligations that in any material respect:
(i) (x)
exist on the Closing Date and (to the extent not otherwise permitted by this Section 10.8) are listed on Schedule 10.8 hereto and
(y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness or other
obligations, are set forth in any agreement evidencing any Permitted Refinancing Indebtedness Incurred to Refinance such
Indebtedness or obligation so long as such Permitted Refinancing Indebtedness does not materially expand the scope of such
Contractual Obligation (as determined in good faith by the Borrower),
(ii)
are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the
Borrower, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary
of the Borrower,
(iii)
represent Indebtedness of a Restricted Subsidiary of the Borrower that is not a Credit Party to the extent such Indebtedness
is permitted by Section 10.1,
(iv)
arise pursuant to agreements entered into with respect to any sale, transfer, lease, license or other Disposition permitted
by Section 10.4, including customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been
entered into for the sale, transfer, lease, license or other Disposition of the Capital Stock of such Subsidiary, and applicable solely
to assets under such sale, transfer, lease, license or other Disposition,
(v)
are customary provisions in Joint Venture agreements, partnership agreements, limited liability company organizational governance
document, and other similar agreements applicable to partnerships, limited liability companies, Joint Ventures and similar Persons permitted
by Section 10.5 or Section 10.6 and applicable solely to such Persons or the transfer of ownership therein,
(vi)
are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 10.1, but
solely to the extent any negative pledge relates to the property financed by or the subject of such Indebtedness,
(vii)
are customary restrictions on leases, subleases, service agreements, product sales, licenses and sublicenses (including
with respect to Intellectual Property) or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the
assets subject thereto,
(viii)
comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 10.1 to the
extent that such restrictions apply only to the specific property or assets securing such Indebtedness,
(ix)
are customary provisions restricting subletting or assignment or transfers of any lease governing a leasehold interest of
the Borrower or any Restricted Subsidiary,
(x)
are customary provisions restricting assignment of any agreement (or the assets subject thereto) entered into in the ordinary
course of business,
(xi)
are restrictions on cash or other deposits or net worth imposed (including by customers) under agreements entered into in
the ordinary course of business,
(xii) are imposed by Applicable Law,
(xiii)
are customary net worth provisions contained in real property leases entered into by Subsidiaries of the Borrower, so long
as the Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of
the Borrower and its Subsidiaries to meet their ongoing obligation;
(xiv) comprise
restrictions imposed by any agreement governing Indebtedness entered into after the Closing Date and permitted under Section 10.1
that are, taken as a whole, in the good-faith judgment of the Borrower, no more restrictive with respect to the Borrower or any
Restricted Subsidiary than customary market terms for Indebtedness of such type (and, in any event, are no more restrictive than the
restrictions contained in this Agreement), so long as the Borrower shall have determined in good faith that such restrictions will
not materially impair its obligation or ability to make any payments required hereunder,
(xv)
arise in connection with purchase money obligations for property acquired in the ordinary course of business or Financing
Lease Obligations;
(xvi)
arise in connection with any agreement or other instrument of a Person or relating to Indebtedness or Capital Stock of a
Person, which Person is acquired by or merged, consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries,
or any other transaction is entered into with any such Acquisition, merger, consolidation or amalgamation, in existence at the time of
such Acquisition or at the time it merges, consolidates or amalgamates with or into the Borrower or any of its Restricted Subsidiaries
or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof),
which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so
acquired and its Subsidiaries, or the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired
or redesignated;
(xvii)
are restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale
or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business;
provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary
that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other
asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xviii)
are provisions restricting the granting of a security interest in Intellectual Property contained in licenses or sublicenses
by the Borrower and its Restricted Subsidiaries of such Intellectual Property, which licenses and sublicenses were entered into in the
ordinary course of business (in which case such restriction shall relate only to such Intellectual Property);
(xix)
arise in connection with cash or other deposits imposed by agreement permitted under Section 10.2, Section 10.5 or Section
10.6 entered into in the ordinary course of business;
(xx)
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 or restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other
than the assets and property of such Subsidiary;
(xxi)
restrictions created in connection with any Qualified Receivables Facility that, in the good faith determination of the
Borrower, are necessary or advisable to effect such Qualified Receivables Facility; and
(xxii) are
any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xxi) of
this Section 10.8; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good-faith judgment of the Borrower, no more restrictive in any material respect with
respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.
10.9
Passive Holding Company; Etc.
(a) Holdings
will not conduct, transact or otherwise engage in any material business or material operations other than (i) the ownership and/or
acquisition of the Capital Stock (other than Disqualified Capital Stock) of the Borrower, (ii) the maintenance of its legal
existence, including the ability to incur fees, costs and expenses relating to such maintenance, (iii) to the extent applicable,
participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and the
Borrower, (iv) the performance of its obligations under and in connection with the Credit Documents and any documents relating to
other Indebtedness permitted under Section 10.1, (v) any public offering of its Capital Stock or any other issuance or registration
of its Capital Stock for sale or resale not prohibited by Section 10, including the costs, fees and expenses related thereto, (vi)
any transaction that Holdings is permitted to enter into or consummate under this Section 10 and any transaction between Holdings
and the Borrower or any Restricted Subsidiary permitted under this Section 10, including (a) making any dividend or distribution or
other transaction similar to a Restricted Payment (other than a Restricted Investment) not prohibited by Section 10.6 (or the making
of a loan to its Parent Entities or any Equityholding Vehicle in lieu of any such Restricted Payment (other than a Restricted
Investment) or distribution or other transaction similar to a Restricted Payment (other than a Restricted Investment)) or holding
any cash received in connection with Restricted Payments (other than Restricted Investments) made by the Borrower in accordance with
Section 10.6 pending application thereof by Holdings in the manner contemplated by Section 10.6 (including the redemption in whole
or in part of any of its Capital Stock (other than Disqualified Capital Stock) in exchange for another class of Capital Stock (other
than Disqualified Capital Stock) or rights to acquire its Capital Stock (other than Disqualified Capital Stock) or with proceeds
from substantially concurrent equity contributions or issuances of new shares of its Capital Stock (other than Disqualified Capital
Stock)), (b) making any Investment to the extent (1) payment therefor is made solely with the Capital Stock of Holdings (other than
Disqualified Capital Stock), the proceeds of Restricted Payments (other than Restricted Investments) received from the Borrower
and/or proceeds of the issuance of, or contribution in respect of the, Capital Stock (other than Disqualified Capital Stock) of
Holdings and (2) any property (including Capital Stock) acquired in connection therewith is contributed to the Borrower or a
Subsidiary Guarantor (or, if otherwise permitted by Section 10.5 or Section 10.6, a Restricted Subsidiary) or the Person formed or
acquired in connection therewith is merged with the Borrower or a Restricted Subsidiary and (c) the (w) provision of guarantees in
the ordinary course of business in respect of obligations of the Borrower or any of its Subsidiaries to suppliers, customers,
franchisees, lessors, licensees, sublicensees or distribution partners; provided, for the avoidance of doubt, that such guarantees
shall not be in respect of debt for borrowed money, (x) Incurrence of Indebtedness of Holdings contemplated by Sections 10.1(p) and
10.1(q), (y) Incurrence of guarantees and the performance of its other obligations in respect of Indebtedness Incurred pursuant to
Sections 10.1(a), 10.1(k) and 10.1(s) and Permitted Additional Debt Incurred pursuant to Section 10.1(u) and (z) granting of Liens
to the extent the Indebtedness contemplated by subclause (y) is permitted to be secured under Sections 10.2(a), 10.2(u) and
10.2(bb), (vii) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal,
tax and accounting issues and paying taxes, (viii) providing indemnification to officers and directors and as otherwise permitted in
Section 10, (ix) activities incidental to the consummation of the Transactions, (x) organizational activities incidental to
Acquisitions or similar Investments consummated by the Borrower, including the formation of acquisition vehicle entities and
intercompany loans and/or investments incidental to such Acquisitions or similar Investments in each case consummated substantially
contemporaneously with the consummation of the applicable Acquisitions or similar Investments; provided that in no event
shall any such activities include the incurrence of a Lien on any of the assets of Holdings, (xi) the making of any loan to any
officers or directors contemplated by Section 10.5, the making of any Investment in the Borrower or any Subsidiary Guarantor or, to
the extent otherwise allowed under Section 10.5 or Section 10.6, a Restricted Subsidiary and (xii) activities incidental to the
businesses or activities described in clauses (i) to (xi) of this Section 10.9.
(b) Except
in connection with the Transactions, Holdings will not consummate any merger, consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its assets and other
properties, except that Holdings may merge, amalgamate or consolidate with or into any other Person (other than the Borrower) or, in
connection with a Qualifying IPO, liquidate into the issuing entity, or otherwise Dispose of all or substantially all of its assets
and property; provided that (i) Holdings shall be the continuing or surviving Person or, in the case of a merger,
amalgamation or consolidation where Holdings is not the continuing or surviving Person or where Holdings has been liquidated, or in
connection with a Disposition of all or substantially all of its assets, the Person formed by or surviving any such merger,
amalgamation or consolidation or the Person into which Holdings has been liquidated or to which Holdings has transferred such assets
shall, in each case, be an entity organized or existing under the laws of the United States, any state thereof, the District of
Columbia or any territory thereof (Holdings or such Person, as the case may be, being herein referred to as the “Successor
Holdings”), (ii) the Successor Holdings (if other than Holdings) shall expressly assume all the obligations of Holdings
under this Agreement and the other applicable Credit Documents pursuant to a supplement hereto or thereto in form reasonably
satisfactory to the Administrative Agent, (iii) each Subsidiary Guarantor, unless it is the other party to such merger,
amalgamation, consolidation, liquidation or Disposition or unless the Successor Holdings is Holdings, shall have by a supplement to
the Guarantee confirmed that its Guarantee shall apply to the Successor Holdings’ obligations under this Agreement, (iv) each
Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation,
liquidation or Disposition or unless the Successor Holdings is Holdings, shall have by a supplement to the applicable Credit
Documents confirmed that its obligations thereunder shall apply to the Successor Holdings’ obligations under this Agreement,
(v) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation, liquidation or
Disposition or unless the Successor Holdings is Holdings, shall have by an amendment to or restatement of the applicable Mortgage
confirmed that its obligations thereunder shall apply to the Successor Holdings’ obligations under this Agreement, (vi)
Holdings shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation,
consolidation, liquidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee
and the perfection of the Liens on the Collateral under the Security Documents, (vii) the Successor Holdings shall, immediately
following such merger, amalgamation, consolidation, liquidation or Disposition, directly or indirectly, own all Subsidiaries owned
by Holdings immediately prior to such merger, amalgamation, consolidation, liquidation or Disposition and (viii) if reasonably
requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger,
amalgamation, consolidation, liquidation, or Disposition does not breach or result in a default under this Agreement or any other
Credit Document; provided, further, that if the foregoing are satisfied, the Successor Holdings (if other than
Holdings) will succeed to, and be substituted for, Holdings under this Agreement.
10.10 Consolidated
First Lien Debt to Consolidated EBITDA Ratio. Solely with respect to the Revolving Credit Facility and subject to the following
proviso, beginning with the Test Period ending December 31, 2017, the Borrower will not permit the Consolidated First Lien Debt to
Consolidated EBITDA Ratio as of the last day of any Test Period to be greater than 8.15:1.00; provided, however, that
the Borrower shall be required to be in compliance with this Section 10.10 with respect to any Test Period only if the sum of (A)
the aggregate principal amount of all Revolving Credit Loans and Swingline Loans plus (B) the aggregate Letter of Credit Obligations
(other than (i) those Cash Collateralized in an amount equal to the Stated Amount thereof or otherwise backstopped on terms
reasonably acceptable to the Administrative Agent and the applicable Letter of Credit Issuer and (ii) without duplication of amounts
described in clause (i) above, Letter of Credit Obligations, the aggregate Stated Amount of which do not exceed the greater of (x)
$5,000,000 and (y) the Stated Amount of Existing Letters of Credit outstanding on the Closing Date), in each case outstanding on the
last day of such Test Period, exceeds 35.0% of the amount of the Total Revolving Credit Commitment in effect on such date and.
10.11
Transactions with Affiliates. The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to,
enter into any transaction with any Affiliate of the Borrower involving aggregate payments or consideration in excess of the greater of
(x) $2,500,000 and (y) 5% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended
on or prior to the date such transaction occurs (measured as of such date) based upon the Section 9.1 Financials most recently delivered
on or prior to such date except:
(a)
such transactions that are made on terms, when taken as a whole, not materially less favorable to the Borrower or such Restricted
Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction
with a Person that is not an Affiliate;
(b)
if such transaction is among Holdings, the Borrower and one or more Subsidiary Guarantors or any Restricted Subsidiary or
any entity that becomes a Restricted Subsidiary as a result of such transaction;
(c)
the payment of Transaction Expenses, including the payment of all fees, expenses, bonuses and awards and the consummation
of the Transactions;
(d)
the issuance of Capital Stock of any Parent Entity, any Equityholding Vehicle or the Borrower to the management of such
Parent Entity, the Borrower or any of its Subsidiaries pursuant to arrangements described in clause (m) below;
(e)
the payment of indemnities and other similar amounts and reasonable expenses incurred by the Investors and their respective
Affiliates in connection with the management or monitoring of, or the provision of other services rendered to, any Parent Entity of the
Borrower, any Equityholding Vehicle, the Borrower or any of its Subsidiaries;
(f)
equity issuances, repurchases, retirements, redemptions or other acquisitions or retirements of Capital Stock by any Parent
Entity of the Borrower, any Equityholding Vehicle or the Borrower permitted under Section 10.6 and any actions by the Borrower and its
Restricted Subsidiaries to permit the same;
(g)
loans, guarantees and other transactions by any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and
the Restricted Subsidiaries to the extent permitted under Section 10 (other than by reliance on this Section 10.11);
(h)
the entry into, performance under, and making of any payments in respect of any employment, compensation and severance arrangements
and health, disability and similar insurance or benefit plans or supplemental executive retirement benefit plans or arrangements between
any Parent Entity of the Borrower, the Borrower and the Restricted Subsidiaries and their respective directors, officers, managers, employees,
consultants or independent contractors (including management and/or employee benefit plans or agreements, stock/equity/option plans, management
equity plans, subscription agreements or similar agreements pertaining to the repurchase of Capital Stock pursuant to put/call rights
or similar rights with current or former employees, officers, managers, directors, consultants or independent contractors (or their respective
Controlled Investment Affiliates or Immediate Family Members) and stock option or incentive plans and other compensation arrangements)
in the ordinary course of business or as otherwise approved by the Board of Directors of any Parent Entity of the Borrower or the Borrower;
(i) the
payment of customary fees, compensation and reasonable out-of-pocket costs to, and benefits, indemnities and reimbursements and
employment and severance arrangements provided on behalf of, or for the benefit of, future, current or former, directors, managers,
consultants, officers, employees and independent contractors (or their respective Controlled Investment Affiliates or Immediate
Family Members) of any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries in the
ordinary course of business to the extent attributable to the ownership or operation of the Borrower and the Restricted
Subsidiaries;
(j)
transactions pursuant to permitted agreements in existence on the Closing Date and set forth on Schedule 10.11 or any amendment
thereto to the extent such an amendment is not adverse, taken as a whole, to the interests of the Lenders in any material respect as compared
to the applicable agreement in effect on the Closing Date (in the good-faith judgment of the Borrower);
(k)
Restricted Payments permitted under Section 10.6, and Investments permitted under Section 10.5;
(l)
payments (including reimbursement of out-of-pocket fees and expenses) by the Borrower and any Restricted Subsidiaries to
the Investors and any of their respective Affiliates made for any financial advisory, financing, underwriting or placement services or
in respect of other investment banking activities (including in connection with acquisitions or Dispositions, whether or not consummated),
which payments are approved by the majority of the members of the Board of Directors or a majority of the disinterested members of the
Board of Directors of any Parent Entity of the Borrower, Holdings or the Borrower in good faith;
(m)
any issuance or transfer of Capital Stock, or other payments, awards or grants in cash, securities, Capital Stock or otherwise
pursuant to, or the funding of, employment arrangements, equity options and equity ownership plans approved by the Board of Directors
of any Parent Entity of the Borrower, any Equityholding Vehicle or the Borrower, as the case may be and the granting and performing of
customary registration rights;
(n)
the issuance and sale of any Qualified Capital Stock and any purchase by any Parent Entity of the Borrower of the Qualified
Capital Stock of the Borrower; provided that, to the extent required by Section 9.11, any Capital Stock of the Borrower so purchased
shall be pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to the Pledge Agreement;
(o)
transactions with wholly owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into
in the ordinary course of business in a manner consistent with prudent business practice followed by companies in the industry of the
Borrower and its Subsidiaries;
(p)
transactions with customers, clients, suppliers, Joint Venture partners or purchasers or sellers of goods or services, in
each case in the ordinary course of business;
(q)
any contribution by any Parent Entity or Equityholding Vehicle to the capital of the Borrower;
(r)
transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary
course of business and in a manner consistent with prudent business practice followed by companies in the industry of the Borrower and
its Subsidiaries;
(s)
any transaction between or among Holdings, the Borrower or any Restricted Subsidiary and any Affiliate of Holdings, the
Borrower or a Joint Venture or similar Person that would constitute an Affiliate transaction solely because Holdings, the Borrower or
a Restricted Subsidiary owns Capital Stock in or otherwise controls such Affiliate, Joint Venture or similar Person or due to the fact
that a director of such Joint Venture or similar Person is also a director of the Borrower or any Restricted Subsidiary (or any Parent
Entity);
(t)
Affiliate repurchases of the Loans or Commitments to the extent permitted under this Agreement and the holding of such Loans
or Commitments and the payments and other transactions contemplated under this Agreement in respect thereof;
(u)
customary transactions effected as part of any Qualified Receivables Facility that are otherwise permitted under this Agreement;
(v)
the entering into, and payments by, any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted
Subsidiaries pursuant to tax sharing agreements among any such Parent Entity, any Equityholding Vehicle, the Borrower and the Restricted
Subsidiaries on customary terms; provided that payments by Borrower and the Restricted Subsidiaries under any such tax sharing
agreements shall not exceed the excess (if any) of the amount they would pay on a standalone basis over the amount they actually pay to
Governmental Authorities;
(w)
transactions in which the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent
a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or such Restricted Subsidiary from
a financial point of view or meets the requirements of clause (a) of this Section 10.11;
(x)
payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former
employees, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower,
any of the Restricted Subsidiaries or any Parent Entity or Equityholding Vehicle and employment agreements, stock option plans and other
compensatory arrangements with any such employees, directors or consultants (or their respective Controlled Investment Affiliates or Immediate
Family Members) which, in each case, are approved by the Borrower in good faith;
(y)
(i) Investments by any of the Permitted Holders in securities of any Parent Entity, the Borrower or any Restricted Subsidiary
(and payment of out-of-pocket expenses incurred by such Permitted Holders in connection therewith) so long as the Investment is being
offered generally to other investors on the same or more favorable terms and (ii) payments to Permitted Holders in respect of securities
or loans of the Borrower or any of the Restricted Subsidiaries contemplated in the foregoing subclause (i) or that were acquired from
Persons other than any Parent Entity, the Borrower or any Restricted Subsidiary, in each case, in accordance with the terms of such securities
or loans;
(z) pledges of Capital Stock of Unrestricted Subsidiaries;
(aa)
the existence and performance of agreements and transactions with any Unrestricted Subsidiary that were entered into prior to the
designation of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction was permitted at the time that
it was entered into with such Restricted Subsidiary (and not entered into in contemplation of such designation) and transactions entered
into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary
(and not entered into in contemplation of such designation); and
(bb)
the existence of, and performance under, customary obligations under the terms of any equityholders agreement, principal investors
agreement (including any registration rights or purchase agreement related thereto) to which any Parent Entity, Equityholding Vehicle,
the Borrower or any Restricted Subsidiary is a party as of the Closing Date (as such agreement may be amended or otherwise modified from
time to time) and any similar agreements relating to the Capital Stock of any of the foregoing which the relevant parties may enter into
after the Closing Date (except to the extent the performance of such obligations is otherwise prohibited under the terms of this Agreement).
SECTION
11. Events of Default. Upon the occurrence of any of the following specified events (each an “Event of Default”):
11.1
Payments. The Borrower shall (a) default in the payment when due of any principal of the Loans or (b) default, and
such default shall continue for five or more Business Days, in the payment when due of any interest on the Loans or any fees or of any
other amounts owing hereunder or under any other Credit Document (other than any amount referred to in clause 11.1(a)); or
11.2
Representations, Etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or
in any other Credit Document or any certificate, statement, report or other document delivered or required to be delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made; or
11.3 Covenants.
Any Credit Party shall (a) default in the due performance or observance by it of any term, covenant or agreement contained in
Section 9.1(e)(i), Section 9.5 (with respect to the existence of the Borrower only) or Section 10; provided that with respect
to Section 10.10, (i) an Event of Default (a “Financial Performance Covenant Event of Default”) shall not occur
until the expiration of the 10th Business Day subsequent to the date the certificate calculating compliance with Section 10.10 as of
the last day of any fiscal quarter is required to be delivered pursuant to Section 9.1(d) (without giving pro forma effect to any
grace period for such delivery) with respect to such fiscal quarter or fiscal year, as applicable, and (ii) any default under
Section 10.10 shall not constitute an Event of Default with respect to any Loans or Commitments hereunder, other than the Revolving
Credit Loans and the Revolving Credit Commitments, until the date on which the Revolving Credit Loans (if any) have been
accelerated, and the Revolving Credit Commitments have been terminated, in each case, by the Required Revolving Credit Lenders, or
(b) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Section
11.1, Section 11.2 and clause (a) of this Section 11.3) contained in this Agreement or any other Credit Document and such default
shall continue unremedied for a period of at least 30 days after receipt of written notice by the Borrower from the Administrative
Agent or the Required Lenders; or
11.4 Default
Under Other Agreements. (a) The Borrower or any of the Restricted Subsidiaries shall (i) fail to make any required payment with
respect to any Indebtedness (other than any Indebtedness described in Section 11.1) in excess of $20,000,000 beyond the period of
grace, if any, provided in the instrument or agreement under which such Indebtedness was created or (ii) fail to observe or perform
any agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist (other than, (i) with respect to Indebtedness consisting of any
Hedging Agreements, termination events or equivalent events pursuant to the terms of such Hedging Agreements and (ii) secured
Indebtedness that becomes due solely as a result of the sale, transfer or other Disposition (including as a result of Recovery
Event) of the property or assets securing such Indebtedness), the effect of which default or other event or condition 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, any
such Indebtedness to become due prior to its stated maturity; provided that such failure remains unremedied or has not been
waived (including in the form of an amendment) by the holders of such Indebtedness or (b) without limiting the provisions of clause
(a) above, any such Indebtedness shall be declared to be due and payable, or required to be prepaid prior to the stated maturity
thereof other than by (x) a regularly scheduled required prepayment or (y) as a mandatory prepayment or redemption; provided
that this clause (b) shall not apply to (A) Indebtedness outstanding under any Hedging Agreements that becomes due pursuant to a
termination event or equivalent event under the terms of such Hedging Agreements, (B) secured Indebtedness that becomes due as a
result of a Disposition or a Recovery Event with respect to the property or assets securing such Indebtedness or (C) Indebtedness
that is convertible into Capital Stock and converts to Capital Stock in accordance with its terms; or
11.5 Bankruptcy,
Etc. Holdings, the Borrower or any Specified Subsidiary shall commence a voluntary case, proceeding or action concerning itself
under the Bankruptcy Code; or an involuntary case, proceeding or action is commenced against Holdings, the Borrower or any Specified
Subsidiary under the Bankruptcy Code and the petition is not dismissed within 60 days after commencement of the case, proceeding or
action; or Holdings, the Borrower or any Specified Subsidiary commences any other proceeding or action under any other Debtor Relief
Law of any jurisdiction whether now or hereafter in effect relating to Holdings, the Borrower or any Specified Subsidiary; or a
custodian (as defined in the Bankruptcy Code), receiver, receiver manager, trustee or similar person is appointed for, or takes
charge of, all or substantially all of the property of Holdings, the Borrower or any Specified Subsidiary; or there is commenced
against Holdings, the Borrower or any Specified Subsidiary under any other Debtor Relief Law any such proceeding or action that
remains undismissed for a period of 60 days; or any order of relief or other order approving any such case or proceeding or action
is entered; or Holdings, the Borrower or any Specified Subsidiary suffers any appointment of any custodian, receiver, receiver
manager, trustee or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60
days; or Holdings, the Borrower or any Specified Subsidiary makes a general assignment for the benefit of creditors; or
11.6 ERISA.
(a) With respect to any Pension Plan, the failure by Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA
Affiliate to satisfy the minimum funding standard required for any plan year or part thereof, whether or not waived, under Section
412 of the Code; with respect to any Multiemployer Plan, the failure to make any required contribution or payment; a determination
that any Pension Plan is in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA or
any Multiemployer Plan is in “endangered or critical status” within the meaning of Section 432 of the Code or Section
305 of ERISA; any Pension Plan is or shall have been terminated or is the subject of termination proceedings by the PBGC under Title
IV of ERISA (including the giving of written notice thereof); a determination that a Pension Plan or Multiemployer Plan is
“insolvent” within the meaning of Section 4245 of ERISA; with respect to any Multiemployer Plan, notification by the
administrator of such Multiemployer Plan that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred or
will be assessed Withdrawal Liability to such Multiemployer Plan; the PBGC provides written notice of its intent to terminate any
Pension Plan or to appoint a trustee to administer any Pension Plan in a manner that results in a liability under Title IV of ERISA
to the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate; an event shall have occurred or a condition shall exist
entitling the PBGC to provide written notice of its intent to terminate any Pension Plan; the Borrower, any Restricted Subsidiary
thereof or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Pension Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064 or 4069 of ERISA or Section 4971 or 4975 of the Code (including the receipt by
Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate of written notice thereof); any termination of a Foreign Plan has
occurred that gives rise to liability for Holdings, the Borrower or any Restricted Subsidiary; or any non-compliance with the
funding requirements under Applicable Law for any Foreign Plan has occurred; (b) there could result from any event or events set
forth in clause (a) of this Section 11.6 the imposition of a Lien, the granting of a security interest, or a liability, or the
reasonable likelihood of incurring a Lien, security interest or liability; and (c) such Lien, security interest or liability will or
would be reasonably likely to have a Material Adverse Effect; or
11.7
Guarantee. The Guarantee or any material provision thereof shall cease to be in full force or effect or any Guarantor
thereunder or any Credit Party shall deny or disaffirm in writing any Guarantor’s obligations under the Guarantee; or
11.8
Security Document. Any Security Document or any material provision thereof shall cease to be in full force or effect
(other than pursuant to the terms hereof or thereof or as a result of acts or omissions of the Administrative Agent, the Collateral Agent
or any Lender), or any grantor, pledgor or mortgagor thereunder or any Credit Party shall deny or disaffirm in writing any grantor’s,
pledgor’s or mortgagor’s obligations under such Security Document; or
11.9
Judgments. One or more judgments or decrees shall be entered against Holdings, the Borrower or any of the Restricted
Subsidiaries for the payment of money in an aggregate amount in excess of $20,000,000 for all such judgments and decrees for Holdings,
the Borrower and the Restricted Subsidiaries (to the extent not paid or fully covered by insurance provided by a carrier not disputing
coverage) and any such judgments or decrees shall not have been satisfied, vacated, discharged, stayed or bonded pending appeal within
60 days from the entry thereof; or
11.10 Change of Control. A Change of Control shall occur;
then, and in any such event,
and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrower, take any or all of the following actions: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, (ii) require that the Letter of Credit Obligations be Cash
Collateralized as provided in Section 3.8(b) and (iii) declare the principal of and any accrued interest and fees in respect of all
Loans and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower without prejudice to the
rights of any Agent or any Lender to enforce its claims against the Borrower, except as otherwise specifically provided for in this
Agreement (provided that, if an Event of Default specified in Section 11.5 with respect to the Borrower shall occur, no
written notice by the Administrative Agent shall be required and the Commitments shall automatically terminate and all amounts in
respect of all Loans and all Obligations shall automatically become forthwith due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower).
Notwithstanding
the foregoing, during any period during which solely a Financial Performance Covenant Event of Default has occurred and is continuing,
the Administrative Agent may with the consent of, and shall at the request of, the Required Revolving Credit Lenders take any of the foregoing
actions described in the immediately preceding paragraph solely as they relate to the Revolving Credit Lenders (versus the Lenders), the
Revolving Credit Commitments (versus the Commitments), the Revolving Credit Loans and the Swingline Loans (versus the Loans), and the
Letters of Credit.
11.11 Borrower’s Right to Cure.
(a) Financial
Performance Covenant. Notwithstanding anything to the contrary contained in this Section 11, in the event that the Borrower
reasonably expects to fail (or has failed) to comply with the requirements of the Financial Performance Covenant as of the end of
any Test Period, at any time during the last fiscal quarter of such Test Period through and until the expiration of the 10th
Business Day subsequent to the date the financial statements are required to be delivered pursuant to Section 9.1(a) or Section
9.1(b) with respect to such fiscal quarter (the “Cure Deadline”), the Borrower (or any Parent Entity thereof)
shall have the right to issue Capital Stock (other than Disqualified Capital Stock) for cash or otherwise receive cash contributions
to (or, in the case of any Parent Entity of Holdings, receive equity interests in Holdings for its cash contributions to) the
Capital Stock (other than Disqualified Capital Stock) of the Borrower (collectively, the “Cure Right”), and upon
the receipt by the Borrower of the net proceeds of such issuance or contribution (the “Cure Amount”) pursuant to
the exercise by the Borrower of such Cure Right; provided such Cure Amount is received by the Borrower on or before the
applicable Cure Deadline, compliance with the Financial Performance Covenant for such Test Period shall be recalculated giving pro
forma effect to the following pro forma adjustments:
(i)
Consolidated EBITDA shall be increased with respect to such applicable fiscal quarter with respect to which such Cure Amount
is received by the Borrower and any Test Period that includes such fiscal quarter, solely for the purpose of determining whether an Event
of Default has occurred and is continuing as a result of a violation of the Financial Performance Covenant and, subject to clause (c)
below, not for any other purpose under this Agreement, by an amount equal to the Cure Amount and any prepayment of Indebtedness with the
Cure Amount shall be disregarded for purposes of measuring the Financial Performance Covenant for such Test Period;
(ii)
if, after giving pro forma effect to such increase in Consolidated EBITDA, the Borrower shall then be in compliance with
the requirements of the Financial Performance Covenant, the Borrower shall be deemed to have satisfied the requirements of the Financial
Performance Covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith
at such date, and the applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for purposes
of this Agreement; and
(iii)
Consolidated First Lien Debt in the Test Period for which the Cure Amount is deemed applied shall be decreased solely to
the extent proceeds of the Cure Amount are applied to prepay any Indebtedness (provided that any such Indebtedness so prepaid shall be
a permanent repayment of such Indebtedness and termination of commitments thereunder) included in the calculation of Consolidated First
Lien Debt;
provided
that the Borrower shall have notified the Administrative Agent in writing of the exercise of such Cure Right within five Business Days
of the receipt of the Cure Amounts.
(b) Limitation
on Exercise of Cure Right. Notwithstanding anything herein to the contrary, (i) in each four fiscal-quarter period there shall
be no more than two fiscal quarters with respect to which the Cure Right is exercised, (ii) there shall be no more than five
exercises of Cure Right in the aggregate, (iii) the Cure Amount shall be no greater than the amount required for purposes of
complying with the Financial Performance Covenant as of the end of such fiscal quarter (such amount, the “Necessary Cure
Amount”); provided that, if the Cure Right is exercised prior to the date financial statements are required to be
delivered for such fiscal quarter then the Cure Amount shall be equal to the amount reasonably determined by the Borrower in good
faith that is required for purposes of complying with the Financial Performance Covenant for such fiscal quarter (such amount, the
“Expected Cure Amount”), (iv) subject to clause (c) below, all Cure Amounts shall be disregarded for purposes of
determining the Applicable Margin, any baskets, with respect to the covenants contained in the Credit Documents, any
“incurrence” based financial ratio or the usage of the Available Amount or the Available Equity Amount and (v) no
borrowing shall be made under the Revolving Credit Facility (or Letters of Credit issued, increased or extended) following a breach
of the Financial Maintenance Covenant until the Cure Amount has actually been received by the Borrower.
(c)
Expected Cure Amount. Notwithstanding anything herein to the contrary, to the extent that the Expected Cure Amount
is (i) greater than the Necessary Cure Amount, then such difference may be used for the purposes of determining any baskets (other than
any previously contributed Cure Amounts), with respect to the covenants contained in the Credit Documents, the Available Amount or the
Available Equity Amount and (ii) less than the Necessary Cure Amount, then not later than the applicable Cure Deadline, the Borrower must
receive the cash proceeds of the Cure Amount or a cash capital contribution to Holdings, which cash proceeds received by Borrower shall
be equal to the shortfall between such Expected Cure Amount and such Necessary Cure Amount.
SECTION 12. The
Administrative Agent and the Collateral Agent.
12.1 Appointment.
(a) Each
Lender hereby irrevocably designates and appoints UBS AG, Stamford Branch (together with any successor Administrative Agent pursuant
to Section 12.11) as Administrative Agent as the agent of such Lender under this Agreement and the other Credit Documents, and each
such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement
or any other Credit Document or otherwise exist against the Administrative Agent.
(b) Each
Lender hereby appoints UBS AG, Stamford Branch (together with any successor Collateral Agent pursuant to Section 12.11) as the
Collateral Agent hereunder and authorizes the Collateral Agent to (i) take such action on its behalf and to exercise all rights,
powers and remedies and perform the duties as are expressly delegated to the Collateral Agent under such Credit Documents and (ii)
exercise such powers as are reasonably incidental thereto. For purposes of the exculpatory, liability-limiting, indemnification and
other similar provisions of this Section 12, references to the “Administrative Agent” shall be deemed to include
the Collateral Agent in its capacity as such. Each Lender hereby appoints the Collateral Agent to enter into, and sign for and on
behalf of the Lenders as Secured Parties, the Security Documents for the benefit of the Lenders and the Secured Parties.
(c)
Each Lead Arranger and each Joint Bookrunner, in its capacity as such, shall not have any obligations, duties or responsibilities
under this Agreement but shall be entitled to all benefits of this Section 12.
12.2 Limited
Duties. Under the Credit Documents, the Administrative Agent (i) is acting solely on behalf of the Lenders (except to the
limited extent provided in Section 2.5(e)), with duties that are entirely administrative in nature, notwithstanding the use of the
defined term “Administrative Agent,” the terms “agent,” “administrative agent” and
“collateral agent” and similar terms in any Credit Document to refer to the Administrative Agent, which terms are used
for title purposes only, (ii) is not assuming any obligation under any Credit Document other than as expressly set forth therein or
any role as agent, fiduciary or trustee of or for any Lender or any other Secured Party and (iii) shall have no implied functions,
responsibilities, duties, obligations or other liabilities under any Credit Document, and each Lender hereby waives and agrees not
to assert any claim against the Administrative Agent based on the roles, duties and legal relationships expressly disclaimed in
clauses (i) through (iii) above.
12.3
Binding Effect. Each Lender agrees that (i) any action taken by the Administrative Agent or the Required Lenders
(or, if expressly required hereby, a greater proportion of the Lenders) or the Required Revolving Credit Lenders in accordance with the
provisions of the Credit Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of Required Lenders
(or, where so required, such greater proportion) or the Required Revolving Credit Lenders and (iii) the exercise by the Administrative
Agent or the Required Lenders (or, where so required, such greater proportion) or the Required Revolving Credit Lenders of the powers
set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon
all of the Secured Parties.
12.4
Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Credit
Documents by or through agents or attorneys-in-fact, or through their respective Related Parties, and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The exculpatory provisions of this Section 12 shall apply to any such sub-agent and
to the Related Parties of the Administrative Agent and any such sub agent. The Administrative Agent shall not be responsible for the negligence
or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment
that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
12.5 Exculpatory
Provisions. Neither the Administrative Agent nor any of its respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall (a) be liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection
with this Agreement or any other Credit Document, including, for the avoidance of doubt, any action taken by it in good faith in
connection with the entry into, or any amendment of, or any action taken in connection with, any Customary Intercreditor Agreement
contemplated by the terms hereof (except for its or such Person’s own gross negligence or willful misconduct as determined in
a final and non-appealable decision of a court of competent jurisdiction), (b) be responsible for or have any duty to ascertain or
inquire into (i) any recitals, statements, representations or warranties contained in this Agreement or any other Credit Document or
in any certificate, report, statement, agreement or other document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Credit Document, (ii) the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Credit Document, (iii) the creation, perfection priority
of any Lien purported to be created by the Credit Documents, (iv) any failure of the Borrower, any Guarantor or any other Credit
Party to perform its obligations hereunder or thereunder or the occurrence of any Default or (v) the value or the sufficiency of any
Collateral, (c) be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(d) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in
the other Credit Documents), provided that the Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Credit Document
or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor
Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any
Debtor Relief Law and (e) except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any other Credit Document, or to inspect the properties,
books or records of the Borrower. The Administrative Agent shall have no responsibility, duty or liability for monitoring or
enforcing the list of, or prohibitions on assignments or participations to, Disqualified Lenders or for any assignment or
participation to a Disqualified Lender.
12.6 Reliance
by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex, electronic mail message or teletype message,
statement, order or other document or conversation believed by it to be genuine and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the Lender specified in the Register
with respect to any amount owing hereunder as the owner thereof for all purposes unless a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
12.7
Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the
event that the Administrative Agent receives such a written notice, the Administrative Agent shall give notice thereof to the Lenders
and the Collateral Agent. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of the Lenders (except to the extent that this Agreement
requires that such action be taken only with the approval of the Required Lenders or each of the Lenders, as applicable).
12.8
Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents, attorneys-in- fact or Affiliates has made any representations
or warranties to it and that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Borrower,
any Guarantor or any other Credit Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent 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 appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the
Borrower, any Guarantor and any other Credit Party and made its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender or any
of their Related Parties, and based on such documents and information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make
such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and
creditworthiness of the Borrower, any Guarantor and any other Credit Party. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the business, assets, operations, properties, financial condition,
prospects or creditworthiness of the Borrower, any Guarantor or any other Credit Party that may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys- in-fact or Affiliates.
12.9 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent required to be reimbursed by the
Borrower and not so reimbursed by the Borrower, and without limiting the obligation of the Borrower to do so), ratably according to
their respective portions of the Total Credit Exposure in effect on the date on which indemnification is sought (or, if
indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in
full, ratably in accordance with their respective portions of the Total Credit Exposure in effect immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (including at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to or arising out of, the Commitments, this Agreement,
any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or
willful misconduct as determined in a final and non-appealable decision of a court of competent jurisdiction. The agreements in this
Section 12.9 shall survive the payment of the Loans and all other amounts payable hereunder.
12.10
Agent in Its Individual Capacity. Each of UBS AG, Stamford Branch and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Borrower, any Guarantor and any other Credit Party as though UBS AG, Stamford
Branch was not the Administrative Agent hereunder and under the other Credit Documents. With respect to the Loans made by it, UBS AG,
Stamford Branch shall have the same rights and powers under this Agreement and the other Credit Documents as any Lender and may exercise
the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include UBS
AG, Stamford Branch in its individual capacity.
12.11 Successor
Agent. The Administrative Agent and/or the Collateral Agent may resign as the Administrative Agent and/or Collateral Agent, as
the case may be, upon 20 days’ prior written notice to the Lenders, the Letter of Credit Issuer, the Swingline Lender, the
other Agents and the Borrower. If the Administrative Agent and/or Collateral Agent becomes a Defaulting Lender, then such
Administrative Agent or Collateral Agent, as the case may be, may be removed as the Administrative Agent or Collateral Agent, as the
case may be, at the reasonable request of the Borrower and the Required Lenders. If the Administrative Agent and/or Collateral Agent
shall resign or be removed as the Administrative Agent and/or the Collateral Agent under this Agreement and the other Credit
Documents, then (a) the Required Lenders shall appoint from among the Lenders a successor for the Lenders within 30 days, or (b) in
the case of a resignation, the Administrative Agent and/or the Collateral Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent and/or the Collateral Agent, as applicable, selected from among the Lenders. In either case, the successor
shall be approved by the Borrower (which approval shall not be unreasonably withheld and shall not be required if an Event of
Default under Section 11.1 or 11.5 shall have occurred and be continuing), whereupon such successor shall succeed to the rights,
powers and duties of the Administrative Agent and/or the Collateral Agent, and the term “Administrative Agent,”
and/or “Collateral Agent,” as applicable, shall mean such successor effective upon such appointment and approval,
and the former Administrative Agent’s and/or Collateral Agent’s rights, powers and duties as the Administrative Agent
and/or the Collateral Agent shall be terminated without any other or further act or deed on the part of such former Administrative
Agent and/or Collateral Agent or any of the parties to this Agreement or any Lenders or other holders of the Loans. If no successor
has accepted appointment as Administrative Agent and/or the Collateral Agent by the date which is 30 days following the retiring
Administrative Agent’s and/or Collateral Agent’s notice of resignation, as the case may be, (x) the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor as provided for
above and (y) the retiring Collateral Agent’s resignation shall nevertheless thereupon become effective at such time as a
successor Collateral Agent shall have been appointed, and such successor Collateral Agent shall have accepted such appointment, in
accordance with the terms of this Section 12.11 and upon the execution and filing or recording of such financing statements, or
amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary
or desirable, or as the Required Lenders may reasonably request, in order to continue the perfection of the Liens granted or
purported to be granted by the Security Documents. After any retiring or removed Administrative Agent’s and/or the Collateral
Agent’s resignation or removal as the Administrative Agent and/or Collateral Agent, the provisions of this Section 12 shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent and/or Collateral
Agent under this Agreement and the other Credit Documents.
Any
resignation or replacement by UBS AG, Stamford Branch as Administrative Agent pursuant to this Section shall also constitute its
resignation or replacement as Letter of Credit Issuer and Swingline Lender. If UBS AG, Stamford Branch resigns or is replaced as
Letter of Credit Issuer, it shall retain all the rights, powers, privileges and duties of the Letter of Credit Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its resignation or replacement as Letter of Credit Issuer
and all Letter of Credit Obligations with respect thereto, including the right to require the Lenders to make Revolving Credit Loans
or fund risk participations in Unpaid Drawings pursuant to Sections 3.3 and 3.4. At the time such resignation or replacement shall
become effective, the Borrower shall pay to UBS AG, Stamford Branch all accrued and unpaid fees pursuant to Sections 4.1(b) and
4.1(d). After such resignation or replacement, UBS AG, Stamford Branch shall not be required to issue additional Letters of Credit
or amend or renew existing Letters of Credit or issue additional Swingline Loans. If UBS AG, Stamford Branch resigns as Swingline
Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the Lenders to make Revolving Credit Loans
or fund risk participations in outstanding Swingline Loans pursuant to Section 2.1(d)(ii). Upon the appointment by the Borrower of a
successor Letter of Credit Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other than a
Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of
the retiring Letter of Credit Issuer or Swingline Lender, as applicable, (b) the retiring Letter of Credit Issuer and Swingline
Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Credit Documents, and
(c) the successor Letter of Credit Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to UBS AG, Stamford Branch to effectively assume
the obligations of UBS AG, Stamford Branch with respect to such Letters of Credit.
12.12 Withholding
Tax. To the extent the Administrative Agent reasonably believes that it is required by any Applicable Law, the Administrative
Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or
expanding the obligations of the Credit Parties under Section 5.4, if the United States Internal Revenue Service or any authority of
the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts
paid to or for the account of any Lender (because the appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason), such Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including penalties and interest, together with all
expenses incurred, including legal expenses, allocated staff costs and any out-of-pocket expenses. The agreements in this Section
12.12 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. The
Administrative Agent shall be entitled to set off any amounts owing to it under Section 12.12 against any amounts otherwise payable
to the applicable Lender.
12.13 Duties
as Collateral Agent and as Paying Agent. Without limiting the generality of Section 12.1 above, the Collateral Agent shall have
the sole and exclusive right and authority (to the exclusion of the Lenders each Hedge Bank and each Cash Management Bank), and is
hereby authorized, to (i) act as the disbursing and collecting agent for the Secured Parties with respect to all payments and
collections arising in connection with the Credit Documents (including in any proceeding described in Section 11.5 or any other
proceeds under any other Debtor Relief Laws, and each Person making any payment in connection with any Credit Document to any
Secured Party is hereby authorized to make such payment to the Collateral Agent, (ii) file and prove claims and file other documents
necessary or desirable to allow the claims of the Secured Parties with respect to any Obligation in any proceeding described in
Section 11.5 or any other proceeds under any other Debtor Relief Laws (but not to vote, consent or otherwise act on behalf of such
Secured Party), (iii) act as collateral agent for each Secured Party for purposes of the perfection of all Liens created by such
agreements and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other
action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the
Credit Documents, (vi) except as may be otherwise specified in any Credit Document, exercise all remedies given to the Collateral
Agent and the other Secured Parties with respect to the Collateral, whether under the Credit Documents, applicable requirements of
law or otherwise, (vii) negotiate the form of any Mortgage and (viii) execute any amendment, consent or waiver under the Security
Documents on behalf of the Secured Parties, to the extent consented to in accordance with Section 13.1 and the terms thereof; provided, however,
that the Collateral Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Collateral
Agent and the other Secured Parties for purposes of the perfection of all Liens with respect to the Collateral, including any
deposit account maintained by a Credit Party with, and cash and Cash Equivalents held by such Secured Party and may further
authorize and direct the Secured Parties to take further actions as collateral sub-agents for purposes of enforcing such Liens or
otherwise to transfer the Collateral subject thereto to the Collateral Agent, and each Secured Party hereby agrees to take such
further actions to the extent, and only to the extent, so authorized and directed.
12.14
Authorization to Release Liens and Guarantees. The Administrative Agent and the Collateral Agent are hereby irrevocably
authorized by each of the Lenders to effect any release or subordination of Liens or the Guarantees contemplated by Section 13.17 without
further action or consent by the Lenders.
12.15 Intercreditor
Agreements. The Collateral Agent is hereby authorized to enter into any Customary Intercreditor Agreement to the extent
contemplated by the terms hereof, and the parties hereto acknowledge that such Customary Intercreditor Agreement is binding upon
them. Each Lender (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Customary
Intercreditor Agreement and (b) hereby authorizes and instructs the Collateral Agent to enter into the Customary Intercreditor
Agreement and to subject the Liens on the Collateral securing the Obligations to the provisions thereof. In addition, each Lender
hereby authorizes the Collateral Agent to enter into (i) any amendments to any Customary Intercreditor Agreement, and (ii) any other
intercreditor arrangements, in the case of clauses (i), and (ii) to the extent required to give effect to the establishment of
intercreditor rights and privileges as contemplated and required by Section 10.2 of this Agreement.
Each Lender
acknowledges and agrees that any of the Agents (including UBS AG, Stamford Branch) (or one or more of their respective Affiliates) may
(but are not obligated to) act as the “Representative” or like term for the holders of Credit Agreement Refinancing Indebtedness
under the security agreements with respect thereto and/or under a Customary Intercreditor Agreement. Each Lender waives any conflict of
interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against any Agent or any of its affiliates
any claims, causes of action, damages or liabilities of whatever kind or nature relating thereto.
12.16 Secured
Cash Management Agreements and Secured Hedge Agreements. Except as otherwise expressly set forth herein or in any Guarantee or
any Security Document, no Cash Management Bank or Hedge Bank that obtains the benefits of any Guarantee or any Collateral by virtue
of the provisions hereof or of any Guarantee or any Security Document shall have any right to notice of any action or to consent to,
direct or object to any action hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the
release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly
provided in the Credit Documents. Notwithstanding any other provision of this Section 12 to the contrary, the Administrative Agent
shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations
arising under Secured Cash Management Agreements and Secured Hedging Agreements unless the Administrative Agent has received written
notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable
Cash Management Bank or Hedge Bank, as the case may be.
12.17
Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief
Law or any other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of
any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit
Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders, the Letter of Credit Issuer and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, Letter of Credit Issuer and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders, Letter of Credit Issuer and the Administrative Agent
under Sections 4.1 and 13.5) allowed in such judicial proceeding; and
(b)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and the Letter of Credit Issuer to make such payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to the Lenders and Letter of Credit Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective
agents and counsel, and any other amounts due the Administrative Agent under Sections 4.1 and 13.5.
Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the Letter of Credit Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or Letter of Credit Issuer or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Letter
of Credit Issuer in any such proceeding.
The Secured
Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion
of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a
deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all
or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including
under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar laws in any other jurisdictions to which
a Credit Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the
consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any Applicable Law.
In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be,
credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the
acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion
of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Capital Stock
or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid
(i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing
for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such
acquisition vehicle or vehicles, including any disposition of the assets or Capital Stock thereof shall be governed, directly or indirectly,
by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving pro forma effect to the limitations
on actions by the Required Lenders contained in clauses (i) through (vii) of Section 13.1 of this Agreement, (iii) the Administrative
Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which
each of the Lenders shall be deemed to have received a pro rata portion of any Capital Stock and/or debt instruments issued by such an
acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition
vehicle to take any further action, and (iv) to the extent that Obligations that are assigned to an acquisition vehicle are not used to
acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the
acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically
be reassigned to the Lenders pro rata and the Capital Stock and/or debt instruments issued by any acquisition vehicle on account of the
Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party
or any acquisition vehicle to take any further action.
SECTION
13. Miscellaneous.
13.1 Amendments
and Waivers. Except as expressly set forth in this Agreement, neither this Agreement nor any other Credit Document (other than
the Fee Letter), nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions
of this Section 13.1. Except with respect to any amendment, modification or waiver contemplated in clause (i) below, which shall
only require the consent of the Lenders expressly set forth therein and not the Required Lenders or any other majority or required
percentage of Lenders of any Class of Loans or Commitments, the Required Lenders may, or, with the written consent of the Required
Lenders, the Administrative Agent and/or the Collateral Agent shall, from time to time, (a) enter into with the relevant Credit
Party or Credit Parties written amendments, supplements or modifications hereto and to the other Credit Documents for the purpose of
adding any provisions to this Agreement or the other Credit Documents or changing in any manner the rights of the Lenders or the
Credit Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders, the Administrative Agent
and/or the Collateral Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the
other Credit Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver,
amendment, supplement or modification shall directly:
(i) without the written consent of each Lender directly and adversely affected thereby:
(A)
reduce or forgive the principal of any Loan (it being understood that a waiver of any condition precedent set forth in Section
6 and 7 or waiver or amendment of any Default, Event of Default or mandatory prepayment shall not constitute a reduction or forgiveness
of principal);
(B) extend
the date of any scheduled amortization payment (including any scheduled Initial Term Loan Repayment Date or any date scheduled for
the repayment of any installment of Incremental Term Loans) or the final scheduled maturity date of any Loan (other than as a result
of waiving the conditions precedent set forth in Sections 6 and 7 or other than as a result of a waiver or amendment of any Default,
Event of Default or mandatory prepayment (which shall not constitute an extension, forgiveness or postponement of any maturity
date)); provided that the foregoing shall not apply to extensions effected in accordance with Section 2.15;
(C) reduce
the amount of any fee payable hereunder or reduce the stated interest rate applicable to the Loans (it being understood that any
change (x) to the definition of “Consolidated First Lien Debt to Consolidated EBITDA Ratio” or (y) in the component
definitions thereof shall not constitute a reduction in the rate); provided that only the consent of the Required Lenders
shall be necessary (i) to waive any obligation of the Borrower to pay interest at the “default rate,” (ii) to amend
Section 2.8(c) or (iii) to waive any requirement of Section 2.14(b);
(D)
extend the date for the payment of any interest or fee payable hereunder (other than as a result of waiving the applicability
of any post-default increase in interest rates and other than as a result of a waiver or amendment of any Default, Event of Default or
mandatory prepayment (which shall not constitute an extension, forgiveness or postponement of any date for payment of principal, interest
or fees));
(E)
extend the final expiration date of any Lender’s Commitment (provided that any Lender, upon the request of
the Borrower, may extend the final expiration date of its Commitments without the consent of any other Lender, including the Required
Lenders); provided that the foregoing shall not apply to extensions effected in accordance with Section 2.15;
(F)
extend the final expiration date of any Letter of Credit beyond the date specified in Section 3.1(b);
(G) increase
the aggregate amount of any Commitment of any Lender (other than (i) with respect to any Incremental Facility to which such Lender
has agreed, (ii) as a result of waiving the conditions precedent set forth in Sections 6 and 7 or (iii) as a result of a waiver or
amendment of any Default or Event of Default (which shall not constitute an extension or increase of any commitment));
(H)
decrease or forgive any Repayment Amount; or
(I)
amend the application of proceeds under Section 5.4 of the Security Agreement or Section 12(b) of the Pledge Agreement;
or
(ii)
reduce the percentages specified in the definition of the term “Required Revolving Credit Lenders” without
the written consent of all Revolving Credit Lenders, or
(iii)
amend, modify or waive any provision of this Section 13.1 or reduce the percentages specified in the definition of the term
“Required Lenders” or consent to the assignment or transfer by the Borrower of its rights and obligations under any Credit
Document to which it is a party (except as permitted pursuant to Section 10.3), in each case without the written consent of each Lender,
or
(iv)
amend, modify or waive any provision of Section 12 without the written consent of then- current Administrative Agent and/or
the Collateral Agent, as applicable, or
(v)
amend, modify or waive any provision of Section 2.16 (to the extent applicable to it) or Section 3 without the written consent
of the Letter of Credit Issuer, or
(vi)
amend, modify or waive any provisions hereof relating to Swingline Loans without the written consent of the Swingline Lender,
or
(vii)
subject to any applicable Customary Intercreditor Agreement, release all or substantially all of the value of the Guarantors
under the Guarantee (except as expressly permitted by the Guarantee), or release all or substantially all of the Collateral under the
Security Documents (except as expressly permitted by the Security Documents), in each case without the prior written consent of each Lender.
provided, further,
that (A) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement
of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class)
may be effected by an agreement or agreements in writing entered into by Holdings, the Borrower, and the requisite percentage in
interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were
the only Class of Lenders hereunder at the time and (B) any provision of this Agreement or any other Credit Document may be amended
by an agreement in writing entered into by Holdings, the Borrower and the Administrative Agent to cure any ambiguity, omission,
defect or inconsistency (including, without limitation, amendments, supplements or waivers to any of the Security Documents,
guarantees, intercreditor agreements or related documents executed by any Credit Party or any other Subsidiary in connection with
this Agreement if such amendment, supplement or waiver is delivered in order to cause such Security Documents, guarantees,
intercreditor agreements or related documents to be consistent with this Agreement and the other Credit Documents) so long as, in
each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative
Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the
Required Lenders stating that the Required Lenders object to such amendment; provided that the consent of the Lenders or the
Required Lenders, as the case may be, shall not be required to make any such changes necessary to be made in connection with (w) any
borrowing of Incremental Term Loans to effect the provisions of Section 2.14, (x) the provision of any Incremental Revolving Credit
Commitment Increase or any Additional/Replacement Revolving Credit Commitments, (y) in connection with an amendment that addresses
solely a re-pricing transaction in which any Class of Term Loans is refinanced with a replacement Class of term loans bearing (or is
modified in such a manner such that the resulting term loans bear) a lower Effective Yield for which only the consent of the Lenders
holding Term Loans subject to such permitted repricing transaction that will continue as a Lender in respect of the repriced tranche
of Term Loans or modified Term Loans or (z) changes otherwise to effect the provisions of Section 2.14, 2.15, 2.17 or 10.2(a) and
(C) Holdings, the Borrower and the Administrative Agent may, without the input or consent of the other Lenders, (i) negotiate the
form of any Mortgage as may be necessary or appropriate in the opinion of the Collateral Agent and (ii) effect changes to this
Agreement that are necessary and appropriate to provide for the mechanics contemplated by the offering process set forth in Section
13.6(g)(i)(B) herein.
Notwithstanding
the foregoing, only the consent of the Required Revolving Credit Lenders shall be required to (and only the Required Revolving Credit
Lenders shall have the ability to) waive, amend, supplement or modify the covenant set forth in Section 10.10 (including any defined terms
as they relate thereto).
Notwithstanding
the foregoing, the Administrative Agent and the Collateral Agent may, without the consent of any Lender, enter into any amendment to the
Security Documents or a Customary Intercreditor Agreement contemplated by Section 10.2(a) or 10.2(u).
To the extent
notice has been provided to the Administrative Agent pursuant to the definition of Credit Agreement Refinancing Indebtedness, Permitted
Additional Debt or Permitted Refinancing Indebtedness or pursuant to Sections 2.14(c), 10.1(k)(i) or 10.1(s) with respect to the inclusion
of any Previously Absent Financial Maintenance Covenant, this Agreement shall be automatically and without further action on the part
of any Person hereunder and notwithstanding anything to the contrary in this Section 13.1 deemed modified to include such Previously Absent
Financial Maintenance Covenant on the date of the Incurrence of the applicable Indebtedness to the extent required by the terms of such
definition or section.
13.2
Notices; Electronic Communications. Notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:
|
|
(a)
|
if to the Borrower, Holdings or any other Credit Party, to it at:
|
c/o Wirepath LLC
1800 Continental Boulevard, Suite 200
Charlotte, NC 28273
Attention: [*****]
Tel: [*****]
Electronic mail: [*****]
|
|
(b)
|
if to the Administrative Agent, Collateral Agent or Swingline Lender to it at:
|
UBS
AG, Stamford Branch
Attention: Structured Finance Processing
600 Washington Blvd., 9th Floor
Stamford, CT 06901
Facsimile: [*****]
Telephone: [*****]
Email: [*****]
and
(c)
if to a Lender or Letter of Credit Issuer, to it at its address (or fax number) set forth on Schedule 13.2 or in the Assignment
and Acceptance, Incremental Agreement or documents relating to any Refinancing pursuant to which such Lender shall have become a party
hereto.
All
notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt if delivered by hand or overnight courier service or sent by fax or on the date five Business
Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 13.2 or in accordance with the latest unrevoked direction from such party given in accordance with
this Section 13.2. Notices and other communications may also be delivered by e-mail to the email address of a representative of the
applicable Person provided from time to time by such Person.
The
Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below
has not been provided by the Administrative Agent to the Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative
Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit
Documents or to the Lenders under Section 9, including all notices, requests, financial statements, financial and other reports, certificates
and other information materials, but excluding any such communication that (i) is or relates to a Notice of Borrowing or a notice pursuant
to Section 2.6, (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor,
(iii) provides notice of any Default or Event of Default under this Agreement or any other Credit Document or (iv) is required to be
delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit
hereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting
the Communications in an electronic/soft medium that is properly identified in a format reasonably acceptable to the Administrative Agent
to an electronic mail address as directed by the Administrative Agent. In addition, the Borrower agrees, and agrees to cause its Subsidiaries,
to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in
the Credit Documents but only to the extent requested by the Administrative Agent.
The
Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided
by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials
on Intralinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do not wish to receive material non- public information with respect to Holdings (or any Parent Entity
thereof) or the Borrower or any of their respective securities) (each, a “Public Lender”). The Borrower hereby agrees
that (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agents and the Lenders
to treat the Borrower Materials as not containing any material non-public information with respect to Holdings (or any Parent Entity
thereof) or the Borrower or any of their respective securities for purposes of United States federal securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 13.16);
(y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated
as “Public Investor”; and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding
the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the Borrower notifies the Administrative
Agent promptly that any such document contains material non-public information: (1) the Credit Documents, (2) notification of changes
in the terms of the Credit Facilities and (3) all information delivered pursuant to Section 9.01(a) and (b).
Each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private
Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender
or its delegate, in accordance with such Public Lender’s compliance procedures and Applicable Law, including United States federal
securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion
of the Platform and that may contain material non-public information with respect to Holdings (or any Parent Entity thereof) or the Borrower
or any of their respective securities for purposes of United States federal securities laws.
THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS
RELATED PARTIES WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS
IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT
SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY OTHER AGENT OR ANY
OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE
ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR NOTICES THROUGH THE PLATFORM, ANY OTHER ELECTRONIC
PLATFORM OR ELECTRONIC MESSAGING SERVICE, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL DECISION BY A COURT
OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT.
The
Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above
shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender
agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform
shall constitute effective delivery of the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees to
notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address
to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant
to any Credit Document in any other manner specified in such Credit Document.
The
Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices, Notices of Borrowing
and Letter of Credit Requests) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. All telephonic notices to the Administrative Agent may be recorded
by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
The
words “execution,”, “execute” “signed,” “signature,” and words of like import in or related
to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation
Assignment and Acceptances, amendments or other modifications, Notices of Borrowing, waivers and consents) shall be deemed to include
electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative
Agent or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in
any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding
anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in
any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it; provided,
further, that electronic signatures from Lenders (including assignees) delivered pursuant to procedures in effect on the site
maintained by the Administrative Agent with respect to the Facilities as of the Closing Date shall be acceptable to the Administrative
Agent. For the avoidance of doubt, delivery of an executed counterpart of a signature page by facsimile or other electronic imaging means
(e.g. “.pdf” or “.tif”) shall be effective as delivery of a manually executed counterpart, and shall not be considered
an electronic signature.
13.3
No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative
Agent, the Collateral Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Credit Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
13.4
Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Credit
Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.
13.5
Payment of Expenses; Indemnification.
(a)
The Borrower agrees (i) to pay or reimburse each of the Agents, the Lead Arrangers and the Joint Bookrunners for all their
reasonable and documented or invoiced out-of-pocket costs and expenses (without duplication) associated with the syndication of the Initial
Term Loan Facility and the Revolving Credit Facility and incurred in connection with the development, preparation, execution and delivery
of, and any amendment, supplement, modification to, waiver and/or enforcement of this Agreement and the other Credit Documents and any
other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated
hereby and thereby, including the reasonable fees, disbursements and other charges of Davis Polk & Wardwell LLP and, to the extent
necessary, a single firm of local counsel in each appropriate local jurisdiction (which may include a single special counsel acting in
multiple jurisdictions) or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld or delayed),
and (ii) to pay or reimburse each of the Agents for all their reasonable and documented or invoiced out-of-pocket costs and expenses
incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Credit Documents and any such
other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Agents, and, to the extent
necessary, a single firm of local counsel in each appropriate local jurisdiction (which may include a single special counsel acting in
multiple jurisdictions) or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld or delayed),
and (iii) to pay, indemnify and hold harmless each Lender, each Agent, the Letter of Credit Issuer, the Swingline Lender, each Lead Arranger
and each Joint Bookrunner and their respective Related Parties (without duplication) (the “Indemnified Parties”) from
and against any and all losses, claims, damages, liabilities or penalties (collectively, “Losses”) of any kind or
nature whatsoever and the reasonable and documented and invoiced out-of-pocket expenses, joint or several, to which any such Indemnified
Party may become subject, in each case to the extent of any such Losses and related expenses, to the extent arising out of, resulting
from, or in connection with any action, claim, litigation, investigation or other proceeding (including any inquiry or investigation
of the foregoing) (any of the foregoing, a “Proceeding”) (regardless of whether such Indemnified Party is a party
thereto or whether or not such Proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any other third
person) and, subject to Section 13.5(e) to reimburse each such Indemnified Party promptly for any reasonable and documented and invoiced
out-of-pocket fees and expenses incurred in connection with investigating, responding to or defending any of the foregoing (which in
the case of legal fees shall be limited to the reasonable and documented or invoiced out-of-pocket fees, expenses, disbursements and
other charges of a single firm of counsel for all Indemnified Parties, taken as a whole and, to the extent necessary, a single firm of
local counsel in each appropriate local jurisdiction (which may include a single special counsel acting in multiple jurisdictions) (and,
in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower
of any existence of such conflict and in connection with the investigating, responding to or defending any of the foregoing has retained
its own counsel, of one other firm of counsel for such affected Indemnified Party)), relating to the Transactions or the execution, delivery,
enforcement, performance and administration of this Agreement, the other Credit Documents and any such other documents or the use of
the proceeds of the Loans or Letters of Credit (all the foregoing in this clause (iii), collectively, the “indemnified liabilities”);
provided that this clause (iii) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising
from any non-Tax claim; and provided, further, that the Borrower shall have no obligation hereunder to any Indemnified
Party with respect to indemnified liabilities to the extent arising from (a) the gross negligence, bad faith or willful misconduct of
such Indemnified Party or any of its Related Parties as determined in a final and non-appealable decision of a court of competent jurisdiction,
(b) a material breach of the obligations of such Indemnified Party or any of its Related Parties under the terms of this Agreement or
any other Credit Document by such Indemnified Party or any of its Related Parties as determined in a final and non-appealable decision
of a court of competent jurisdiction, (c) in addition to clause (b) above, in the case of any Proceeding initiated by Holdings, the Borrower
or any Restricted Subsidiary against the relevant Indemnified Party, a breach of the obligations of such Indemnified Party or its Related
Parties under the terms of this Agreement or any other Credit Document as determined in a final and non-appealable decision by a court
of competent jurisdiction, or (d) any Proceeding brought by any Indemnified Party against any other Indemnified Party that does not involve
an act or omission by Holdings, the Borrower or its Restricted Subsidiaries; provided that each of the Agents, the Letter of Credit
Issuer, the Swingline Lender, the Lead Arrangers and the Joint Bookrunners, in each case to the extent fulfilling their respective roles
in their capacities as such, shall remain indemnified in respect of such a Proceeding, to the extent that none of the exceptions set
forth in clause (a), (b) or (c) of the immediately preceding proviso applies to such Person at such time. All amounts payable under this
Section 13.5(a) shall be paid within 30 days after receipt by the Borrower of written demand and an invoice relating thereto setting
forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the Loans and all other amounts
payable hereunder and the termination of the Obligations.
(b)
No Credit Party nor any Indemnified Party shall have any liability for any special, punitive, indirect or consequential
damages (including any loss of profits, business or anticipated savings) in connection with this Agreement or any other Credit Document
or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing
shall not limit the Borrower’s indemnification and reimbursement obligations to the Indemnified Parties pursuant to Section 13.5(a)(iii),
to the extent that such special, punitive, indirect or consequential damages are included in any claim by a third party unaffiliated
with any of the Indemnified Parties with respect to which the applicable Indemnified Party is entitled to indemnification under Section
13.5(a)(iii). No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent that such damages
have resulted from the willful misconduct, bad faith or gross negligence of any Indemnified Party or any of its Related Parties as determined
by a final and non-appealable decision of a court of competent jurisdiction.
(c)
No Credit Party shall be liable for any settlement of any Proceeding effected without written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed, it being understood that the withholding of consent due to non-satisfaction of
any of the conditions described in clauses (i) and (ii) of paragraph (d)
below (with “the Borrower” being substituted for “Indemnified Party” in each such clause) shall be deemed
reasonable), but if settled with the Borrower’s written consent or if there is a final and non-appealable judgment by a court of
competent jurisdiction for the plaintiff in any such Proceeding, each Credit Party agrees to indemnify and hold harmless each Indemnified
Party from and against any and all Losses and reasonable and documented or invoiced legal or other out-of-pocket expenses by reason of
such settlement or judgment in accordance with and to the extent provided in the other provisions of this Section 13.5. If any Person
has reimbursed any Indemnified Party for any legal or other expenses in accordance with such request and there is a final and non-appealable
determination by a court of competent jurisdiction that the Indemnified Party was not entitled to indemnification or contribution rights
with respect to such payment pursuant to this Section 13.5, then the Indemnified Party shall promptly refund such amount.
(d)
No Credit Party shall without the prior written consent of any Indemnified Party (which consent shall not be unreasonably
withheld or delayed, it being understood that the withholding of consent due to non- satisfaction of any of the conditions described
in clauses (i) and (ii) of this sentence shall be deemed reasonable), effect any settlement of any pending or threatened Proceeding in
respect of which indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional
release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability or claims
that are the subject matter of such Proceeding and (ii) does not include any statement as to or any admission of fault, culpability,
wrongdoing or a failure to act by or on behalf of any Indemnified Party.
(e)
In case any proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder
by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any proceeding; provided,
however, that the failure to do so will not relieve the Borrower from any liability that it may have to such Indemnified Party
hereunder, except to the extent that the Borrower is materially prejudiced by such failure. Notwithstanding the above, following such
notification, the Borrower may elect in writing to assume the defense of such proceeding, and, upon such election, the Borrower will
not be liable for any legal costs subsequently incurred by such Indemnified Party (other than reasonable costs of investigation and providing
evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified
Party in a timely manner, (ii) counsel provided by the Borrower reasonably determines its representation of such Indemnified Party would
present it with a conflict of interest or (iii) the Indemnified Party reasonably determines that there are actual conflicts of interest
between the Borrower and the Indemnified Party, including situations in which there may be legal defenses available to the Indemnified
Party which are different from or in addition to those available to the Borrower.
13.6
Successors and Assigns; Participations
and Assignments.
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except
that (i) except as set forth in Section 10.3, the 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 the 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 this Section. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), Participants (to the extent provided in Section
13.6(d)) and, to the extent expressly contemplated hereby, the Indemnified Parties) 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 13.6(b)(ii), 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 its Commitments and the Loans at the
time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A)
the Borrower; provided that no consent of the Borrower shall be required (x) for an assignment of any Term Loan
to a Lender, an Affiliate of a Lender or an Approved Fund (unless increased costs would result therefrom) or (y) if an Event of Default
under Section 11.1 or an Event of Default with respect to the Borrower under Section 11.5 has occurred and is continuing; provided,
further, that the Borrower shall be deemed to have consented to any such assignment of a Term Loan unless it shall object thereto
by written notice to the Administrative Agent within ten Business Days after having received written notice thereof; provided, further,
that it shall be understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if,
in order for such assignment to comply with Applicable Law, the Borrower would be required to obtain the consent of, or make any filing
or registration with, any Governmental Authority, and
(B)
(i) in the case of Term Loans or Commitments in respect of Term Loans, the Administrative Agent; provided that no
consent of the Administrative Agent shall be required for an assignment of any Term Loan to a Lender, an Affiliate of a Lender or an
Approved Fund or to any Purchasing Borrower Party or any Affiliated Lender and (ii) in the case of Revolving Credit Commitments, Revolving
Credit Loans, Additional/Replacement Revolving Credit Commitments or Additional/Replacement Revolving Credit Loans, the Administrative
Agent, the Swingline Lender and the Letter of Credit Issuer.
Notwithstanding the foregoing
or anything to the contrary set forth herein, any assignment of any Loans to a Purchasing Borrower Party or any Affiliated Lender shall
also be subject to the requirements of Section 13.6(g).
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of (i) an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) an assignment
of the entire remaining amount of the assigning Lender’s Commitments or Loans of the applicable Class, the amount of the Commitments
or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less than, in the case of Revolving Credit Commitments or Revolving
Credit Loans, Additional/Replacement Revolving Credit Commitments or Additional/Replacement Revolving Credit Loans, $5,000,000 (or an
integral multiple of $1,000,000 in excess thereof), or, in the case of Initial Term Loan Commitments, Incremental Term Loan Commitments
or Term Loans, $1,000,000 (or an integral multiple of $1,000,000 in excess thereof), unless each of the Borrower and the Administrative
Agent otherwise consents; provided that no such consent of the Borrower shall be required if an Event of Default under Section
11.1 or Section 11.5 with respect to the Borrower has occurred and is continuing; provided, further, that contemporaneous
assignments to a single assignee made by Affiliated Lenders or related Approved Funds or by a single assignor to related Approved Funds
shall be aggregated for purposes of meeting the minimum assignment amount requirements stated above;
(B)
subject to the terms of Section 13.7(c), the parties to each assignment shall (x) execute and deliver to the Administrative
Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent or (y) if previously agreed
with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Acceptance, in each case, together
with a processing fee of $3,500 (it being understood that such recordation fee shall not apply to any assignment by any of the Lead Arrangers,
Joint Bookrunners or any of their respective Affiliates hereunder in connection with the primary syndication of the Initial Term Loan
Facility); provided that the Administrative Agent may, in its sole discretion, elect to waive or reduce such processing and recordation
fee in the case of any assignment, including assignments effected pursuant to the provisions of Section 13.7;
(C)
the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax form required by Section 5.4
and an administrative questionnaire in a form approved by the Administrative Agent in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public information about the Credit Parties and their
Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s
compliance procedures and Applicable Laws, including Federal and state securities laws; and
(D)
each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (D) shall not prohibit
any Lender from assigning all or a portion of its rights and obligations among separate tranches of Loans (if any) on a non-pro rata
basis.
Notwithstanding
the foregoing or anything to the contrary set forth herein (i) any assignment of any Loans or Commitments to a Purchasing Borrower Party
or an Affiliated Lender shall also be subject to the requirements set forth in Section 13.6(g) and (ii) no natural person may be an Eligible
Assignee with respect to any Loans or Commitments.
For
the purpose of this Section 13.6(b), the term “Approved Fund” has the following meaning:
“Approved
Fund” means any Person (other than a natural person) that is primarily engaged or advises funds or other investment vehicles
that are engaged in making, purchasing, holding or investing in commercial loans, bonds and similar extensions of credit or securities
in the ordinary course of business and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c)
an entity or an Affiliate of an entity that administers, advises or manages a Lender.
(iii)
Subject to acceptance and recording thereof pursuant to Section 13.6(b)(vi), from and after the effective date specified
in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement,
such Lender shall cease to be a party hereto, but shall continue to be entitled to the benefits and subject to the requirements of Sections
2.10, 2.11, 5.4 and 13.5); provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment
by a Defaulting Lender will constitute a waiver or release of any claim of any other party hereto against such Defaulting Lender arising
from such Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 13.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with Section 13.6(d).
(iv)
By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall
be deemed to confirm to 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 its Initial Term
Loan Commitment, Incremental Term Loan Commitment, Revolving Credit Commitment and Additional/Replacement Revolving Credit Commitment,
and the outstanding balances of its Loans, in each case without giving pro forma effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (B) except as set forth in (A) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other
Credit Document or any other instrument or document furnished pursuant hereto, or the financial condition of Holdings, the Borrower or
any Subsidiary or the performance or observance by Holdings, the Borrower or any Subsidiary of any of its obligations under this Agreement,
any other Credit Document or any other instrument or document furnished pursuant hereto; (C)
such assignee represents and warrants that (x) it is legally authorized to enter into such Assignment and Acceptance and (y) to
the extent that such assignee has received, upon its request, a list of Disqualified Lenders, it is not a Disqualified Lender or an Affiliate
of a Disqualified Lender; (D) such assignee confirms that it has received a copy of this Agreement, together with copies of the most
recent financial statements referred to in Section 8.9 or delivered pursuant to Section 9.1 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (E) such assignee
will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent
to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Credit Documents as are delegated
to the Administrative Agent and the Collateral Agent, respectively, 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.
(v)
The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative
Agent’s Office in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans (and interest thereon) and any payment
made by the Letter of Credit Issuer under any Letter of Credit owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). Further, the Register shall contain the name and address of the Administrative Agent and the lending
office through which each such Person acts under this Agreement. The entries in the Register shall be conclusive, absent manifest error,
and the Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection
by (x) the Borrower and each Letter of Credit Issuer, (y) any Agent and (z) any Lender (solely with respect to its own outstanding Loans
and Commitments), in each case, at any reasonable time and from time to time upon reasonable prior notice.
(vi)
Upon its receipt of and, if required, consent to, a duly completed Assignment and Acceptance executed by an assigning Lender
and an assignee, the assignee’s completed administrative questionnaire and any tax form required by Section 5.4 (unless the assignee
shall already be a Lender hereunder) and any written consent to such assignment required by Section 13.6(b)(i), the Administrative Agent
shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall
be effective for purposes of this Agreement unless and until it has been recorded in the Register as provided in this paragraph.
(c)
Notwithstanding any provision to the contrary, any Lender may assign to one or more wholly owned special purpose funding
vehicles (each, an “SPV”) all or any portion of its funded Loans (without the corresponding Commitment), without the
consent of any Person or the payment of a fee, by execution of a written assignment agreement in a form agreed to by such assigning Lender
and such SPV, and may grant any such SPV the option, in such SPV’s sole discretion, to provide the Borrower all or any part of
any Loans that such assigning Lender would otherwise be obligated to make pursuant to this Agreement. Such SPVs shall have all the rights
which a Lender making or holding such Loans would have under this Agreement, but no obligations. Any such assigning Lender shall remain
liable for all its original obligations under this Agreement, including its Commitment (although the unused portion thereof shall be
reduced by the principal amount of any Loans held by an SPV). Notwithstanding such assignment, the Administrative Agent and the Borrower
may deliver notices to such assigning Lender (as agent for the SPV) and not separately to the SPV unless the Administrative Agent and
the Borrower are requested in writing by the SPV to deliver such notices separately to it. Notwithstanding anything herein to the contrary,
(i) neither the grant to the SPV nor the exercise by any SPV of such option will increase the costs or expenses or otherwise change the
obligations of the Borrower under this Agreement and the other Credit Documents, except, in the case of Sections 2.10, 2.11, 3.5 or 5.4,
where (A) the increase or change results from a change in any Applicable Law after the SPV becomes an SPV and the assigning Lender notifies
the Borrower in writing of such increase or change no later than ninety (90) days after such change in Applicable Law becomes effective
or (B) the grant was made with the Borrower’s prior written consent, (ii) the assigning Lender shall for all purposes, including
the approval of any amendment, waiver or other modification of any provision of any Credit Document and the receipt of any notices provided
by the Administrative Agent and the Borrower (as agent for the SPV) remain the Lender of record hereunder and (iii) no SPV shall be liable
for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the assigning Lender).
The Borrower shall, at the request of any such assigning Lender, execute and deliver to such Person as such assigning Lender may designate,
a Note, substantially in the form of Exhibit F-1 or F-2, in the amount of such assigning Lender’s original Note to evidence the
Loans of such assigning Lender and related SPV.
(d)
(i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the Collateral Agent, any Letter of
Credit Issuer or the Swingline Lender, sell participations to one or more banks or other entities, other than to any Disqualified Lender
(to the extent that the list of Disqualified Lenders has been made available to the Lenders), Holdings, the Borrower or any of its Subsidiaries,
(each, 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 Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer 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 a Lender sells such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement or any other Credit
Document; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to Section 13.1 that affects such Participant. Subject
to paragraph (d)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits (and subject to the
requirements) of Sections 2.10, 2.11, 5.4 and 13.5 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 13.6(b). To the extent permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section
13.8(b) as though it were a Lender; provided such Participant agrees to be subject to Section 13.8(a) as though it were a Lender.
(ii)
A Participant shall not be entitled to receive any greater payment under Sections 2.10, 2.11, 3.5 or 5.4 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such Participant, unless (A) the entitlement to
a greater payment resulted from a change in any Applicable Law after the Participant became a Participant and the participating Lender
notifies the Borrower in writing of such entitlement to a greater payment no later than ninety (90) days after such change in Applicable
Law becomes effective or (B) the sale of the participation to such Participant is made with the Borrower’s prior written consent.
Each Lender having sold a participation in any of its Obligations, acting as a non-fiduciary agent of the Borrower solely for this purpose,
shall establish and maintain at its address a record of ownership, in which such Lender shall register by book entry (A) the name and
address of each such Participant (and each change thereto, whether by assignment or otherwise) and (B) the rights, interest or obligation
of each such Participant in any Obligation, in any Commitment and in any right to receive any interest or principal payment hereunder
(such register, a “Participant Register”); provided that no Lender shall have any obligation to disclose all
or any portion of its Participant Register (including the identity of any Participant or any information relating to a Participant’s
interest in any Obligation or Commitment) to any Person except to the extent that such disclosure is necessary to establish that such
Obligation or Commitment is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive, absent manifest error, and the parties shall treat the Person listed in the Participant Register
as the Participant for all purposes of this Agreement, notwithstanding notice to the contrary.
(e)
Any Lender may, without the consent of the Borrower, the Collateral Agent or the Administrative Agent, at any time pledge
or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank, and this Section shall not apply
to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
In order to facilitate such pledge or assignment, the Borrower hereby agrees that, upon request of any Lender at any time and from time
to time after the Borrower has made its initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower’s
own expense, a Note evidencing the Loans owing to such Lender.
(f)
Subject to Section 13.16, the Borrower authorizes each Lender to disclose to any Participant, secured creditor of such
Lender or assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such
Lender’s possession concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower
and its Affiliates pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower and its Affiliates
in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement.
(g)
(i) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of
its Term Loans to any Purchasing Borrower Party or any Affiliated Lender in accordance with Section 13.6(b) (which assignment, if to
a Purchasing Borrower Party, will not, except for purposes of making the calculations set forth in Section 5.2(a)(ii), constitute a prepayment
of Loans for any purposes of this Agreement and the other Credit Documents); provided that:
(A) with
respect to any assignment to a Purchasing Borrower Party, no Event of Default has occurred or is continuing or would result therefrom;
(B)
with respect to any such assignment to a Purchasing Borrower Party, either (x) such Purchasing Borrower Party shall offer
to all Lenders within any Class of Term Loans (but not, for the avoidance of doubt, to every Class) to buy the Term Loans within such
Class on a pro rata basis based on the then outstanding principal amount of all Term Loans of such Class, pursuant to procedures
to be reasonably agreed between the Administrative Agent and the Borrower or (y) such assignment shall be effected pursuant to an open
market purchase;
(C)
the assigning Lender and Purchasing Borrower Party or Non-Debt Fund Affiliate purchasing such Lender’s Term Loans,
as applicable, shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit I or
such other form as shall be reasonably acceptable to the Borrower and the Administrative Agent (an “Affiliated Lender Assignment
and Acceptance”) in lieu of an Assignment and Acceptance;
(D)
for the avoidance of doubt, Lenders shall not be permitted to assign Revolving Credit Commitments, Revolving Credit Loans,
Additional/Replacement Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments, Extended Revolving Credit Commitments
or Extended Revolving Credit Loans to any Purchasing Borrower Party or any Affiliated Lender;
(E)
any Term Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness
of such assignment and will thereafter no longer be outstanding for any purpose hereunder;
(F)
no Purchasing Borrower Party may use the proceeds from Revolving Credit Loans, Extended Revolving Credit Loans or Swingline
Loans or Additional/Replacement Revolving Credit Loans (or any other revolving credit facility that is effective in reliance on Section
10.1(a) or Section 10.1(u)) to purchase any Term Loans;
(G)
no Term Loan may be assigned to a Non-Debt Fund Affiliate pursuant to this Section 13.6(g) if, after giving pro forma effect
to such assignment, Non-Debt Fund Affiliates in the aggregate would own in excess of 25% of the Term Loans of any Class then outstanding
(determined as of the time of such purchase);
(H) any
purchases or assignments of Loans by a Purchasing Borrower Party or a Non-Debt Fund Affiliate made through “dutch
auctions” shall (i) be conducted pursuant to procedures to be established by the applicable “auction agent” that
are consistent with this Section 13.6(g) and are otherwise reasonably acceptable to the Borrower and (ii) require that such Person
clearly identify itself as a Purchasing Borrower Party or an Affiliated Lender, as the case may be, in any assignment and acceptance
agreement executed in connection with such purchases or assignments; and
(I)
with respect to any assignment to a Purchasing Borrower Party, the assigning Lender waives any right to bring actions (whether
in contract, tort or otherwise) against the Administrative Agent in its capacity as such or to challenge the Administrative Agent’s
attorney-client privilege.
(ii)
Notwithstanding anything to the contrary in this Agreement, no Non-Debt Fund Affiliate shall have any right to (A) attend
(including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent, the Collateral Agent or any
Lender to which representatives of the Credit Parties are not invited, (B) receive any information or material prepared by the Administrative
Agent, the Collateral Agent or any Lender or any communication by or among the Administrative Agent, the Collateral Agent and/or one
or more Lenders, except to the extent such information or materials have been made available to any Credit Party or its representatives
(and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required
to be delivered to Lenders pursuant to Sections 2, 3, 4 and 5 of this Agreement) or (C) make or bring (or participate in, other than
as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative
Agent or the Collateral Agent with respect to any duties or obligations or alleged duties or obligations of such Agent under the Credit
Documents or to challenge such Agent’s attorney-client privilege.
(iii)
By its acquisition of Term Loans, a Non-Debt Fund Affiliate shall be deemed to have acknowledged and agreed that if a case
under the Bankruptcy Code is commenced against any Credit Party, such Credit Party shall seek (and each Non-Debt Fund Affiliate shall
consent) to provide that the vote of any Non-Debt Fund Affiliate (in its capacity as a Lender) with respect to any plan of reorganization
or liquidation of such Credit Party shall not be counted except that such Non-Debt Fund Affiliate’s vote (in its capacity as a
Lender) may be counted to the extent any such plan of reorganization or liquidation proposes to treat the Obligations held by such Non-Debt
Fund Affiliate in a manner that is less favorable to such Non-Debt Fund Affiliate than the proposed treatment of similar Obligations
held by Lenders that are not Affiliates of the Borrower; each Non-Debt Fund Affiliate hereby irrevocably appoints the Administrative
Agent (such appointment being coupled with an interest) as such Non-Debt Fund Affiliate’s attorney-in-fact, with full authority
in the place and stead of such Non-Debt Fund Affiliate and in the name of such Non-Debt Fund Affiliate (solely in respect of Loans and
participations therein and not in respect of any other claim or status such Non-Debt Fund Affiliate may otherwise have) from time to
time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may
deem reasonably necessary to carry out the provisions of this clause (iii);
(iv)
Any Lender may assign all or a portion of the Term Loans of any Class (but not any Revolving Credit Commitments, Revolving
Credit Loans, Additional/Replacement Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments, Extended Revolving
Credit Loans or Extended Revolving Credit Commitments) held by it to a Debt Fund Affiliate in accordance with Section 13.6(b).
(h)
Notwithstanding anything in Section 13.1 or the definition of “Required Lenders” to the contrary, for
purposes of determining whether the Required Lenders or any other requisite Class vote required by this Agreement have (i) consented
(or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Credit Document
or any departure by any Credit Party therefrom, (ii) otherwise acted on any matter related to any Credit Document, or (iii) directed
or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action)
with respect to or under any Credit Document, (A) all Term Loans held by any Non-Debt Fund Affiliate shall be deemed to be not outstanding
for all purposes of calculating whether the Required Lenders (or requisite vote of any Class of Lenders) have taken any actions and (B)
the aggregate amount of Term Loans held by Debt Fund Affiliates will be excluded to the extent in excess of 49.9% of the amount required
to constitute “Required Lenders” (including in respect of a specific Class) (any such excess amount shall be deemed to be
not outstanding on a pro rata basis among all Debt Fund Affiliates).
(i)
Upon any contribution of Term Loans to the Borrower or any Restricted Subsidiary and upon any purchase of Term Loans by
a Purchasing Borrower Party, (A) the aggregate principal amount (calculated on the face amount thereof) of such Term Loans shall automatically
be cancelled and retired or extinguished by the Borrower on the date of such contribution or purchase (and, if requested by the Administrative
Agent, with respect to a contribution of Term Loans, any applicable contributing Lender shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof
pursuant to which the respective Lender assigns its interest in such Loans to the Borrower for immediate cancellation) and (B) the Administrative
Agent shall record such cancellation or retirement or extinguishment in the Register.
(j)
The Administrative Agent shall not (a) be required to serve as the auction agent for, or have any other obligations to
participate in (other than mechanical administrative duties), or facilitate any, “dutch auction” unless it is reasonably
satisfied with the terms and restrictions of such auction or (b) have any obligation to participate in, arrange, sell or otherwise facilitate,
and will have no liability in connection with, any open market purchases by any Purchasing Borrower Party.
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13.7
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Replacements
of Lenders Under Certain Circumstances.
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(a)
The Borrower, at its sole expense, shall be permitted to replace any Lender (or any Participant) that (i) requests reimbursement
for amounts owing pursuant to Section 2.10, 2.11, 3.5 or 5.4, (ii) is affected in the manner described in Section 2.10(a)(iii) and as
a result thereof any of the actions described in such Section is required to be taken or (iii) becomes a Defaulting Lender, with a replacement
bank, financial institution or other institutional lender or investor that is an Eligible Assignee; provided that (A) such replacement
does not conflict with any Applicable Law, (B) no Event of Default shall have occurred and be continuing at the time of such replacement,
(C) the Borrower shall repay (or such replacement bank, financial institution or other institutional lender or investor shall purchase,
at par) all Loans and pay all other amounts (other than any disputed amounts) owing to such replaced Lender hereunder (including, for
the avoidance of doubt, pursuant to Section 2.10, 2.11, 3.5 or 5.4, as the case may be) and under the other Credit Documents prior to
the date of replacement of such Lender, (D) such replacement bank, financial institution or other institutional lender or investor (if
not already a Lender) and the terms and conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent,
(E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 13.6 and (F) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender or that the replaced Lender shall have against the Borrower and the other parties for indemnity, contribution,
payment of disputed and other unpaid amounts and otherwise.
(b)
If any Lender (such Lender a “Non-Consenting Lender”) has failed to consent to a proposed amendment,
modification, supplement, waiver, discharge or termination, which pursuant to the terms of Section 13.1 requires the consent of all of
the Lenders affected or each Lender and with respect to which the Required Lenders shall have granted their consent, then, provided
no Event of Default has occurred and is continuing, the Borrower shall have the right (unless such Non-Consenting Lender grants such
consent), at its own cost and expense, to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans
and Commitments to one or more Eligible Assignees reasonably acceptable to the Administrative Agent; provided that (i) all Obligations
of the Borrower under this Agreement owing to such Non-Consenting Lender being replaced shall be paid in full (including any applicable
premium under Section 5.1(b)) to such Non-Consenting Lender concurrently with such assignment, (ii) the replacement Lender shall purchase
the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest
thereon, (iii) the replacement Lender shall consent to the proposed amendment, modification, supplement, waiver, discharge or termination,
(iv) all Lenders required to have consented to such proposed amendment, modification, supplement, waiver, discharge or termination (other
than Non-Consenting Lenders which are simultaneously replaced) shall have consented thereto, and (v) the assignment of such Non-Consenting
Lenders Loans to one or more Eligible Assignees does not otherwise conflict with Applicable Law. In connection with any such assignment,
the Borrower, the Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 13.6(a).
(c)
Notwithstanding anything herein to the contrary, each party hereto agrees that any assignment pursuant to the terms of
this Section 13.7 may be effected pursuant to an Assignment and Acceptance executed by the Borrower, the Administrative Agent and the
assignee and that the Lender making such assignment need not be a party thereto.
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13.8
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Adjustments;
Set-off.
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(a)
Except as otherwise set forth herein, if any Lender (a “Benefited Lender”) shall at any time receive
any payment of all or part of the Loans of any Class and/or the participations in letter of credit obligations or swingline loans held
by it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set- off, pursuant to events or proceedings
of the nature referred to in Section 11.5, or otherwise), in a greater proportion than any such payment to or collateral received by
any other Lender, if any, in respect of such other Lender’s Loans of such Class or participations in letter of credit obligations
or swingline loans, as applicable, such Benefited Lender shall (i) notify the Administrative Agent of such fact, and (ii) purchase for
cash at face value from the other Lenders a participating interest in such portion of each such other Lender’s Loans of such Class
or participations in letter of credit obligations or swingline loans, as applicable, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably in accordance with the aggregate principal of their respective Loans of the applicable
Class or participations in letter of credit obligations or swingline loans, as applicable; provided that, (A) if all or any portion of
such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without interest and (B) the provisions of this paragraph shall not
be construed to apply to (x) any payment made by Holdings, the Borrower or any other Credit Party pursuant to and in accordance with
the express terms of this Agreement and the other Credit Documents, (y) any payment obtained by a Lender as consideration for the assignment
of or sale of a participation in any of its Loans, Commitments or participations in a Letter of Credit Obligations or Swingline Loans
to any assignee or participant or (z) any disproportionate payment obtained by a Lender of any Class as a result of the extension by
Lenders of the maturity date or expiration date of some but not all Loans or Commitments of that Class or any increase in the Applicable
Margin (or other pricing term, including any fee, discount or premium) in respect of Loans or Commitments of Lenders that have consented
to any such extension to the extent such transaction is permitted hereunder. Each Credit Party consents to the foregoing and agrees,
to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against such Credit Party rights of set-off and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Credit Party in the amount of such participation.
(b)
After the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders
provided by Applicable Law, each Lender, the Swingline Lender and each Letter of Credit Issuer shall have the right, without prior notice
to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by Applicable Law, upon any amount becoming
due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise) to setoff and appropriate and
apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, as the
case may be; provided that, in the event that any Defaulting Lender shall exercise any such right of set-off, (x) all amounts
so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section
2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Administrative Agent, the Swingline Lender, each Letter of Credit Issuer and the Lenders, and (y) the Defaulting Lender shall
provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender
as to which it exercised such right of set-off. Each Lender, the Swingline Lender and each Letter of Credit Issuer agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and application made by such Person; provided that the
failure to give such notice shall not affect the validity of such set-off and application. Notwithstanding anything in this Section 13.8(b)
to the contrary, no Lender, no Swingline Lender and no Letter Credit Issuer will exercise, or attempt to exercise, any right of set off,
banker’s lien or the like against any deposit account or property of the Borrower or any other credit party held or maintained
by such Lender, Swingline Lender or Letter of Credit Issuer, as applicable, in each case to the extent the deposits or other proceeds
of such exercise, or attempt to exercise, any right of set off, banker’s lien or the like are, or are intended to be or are otherwise
are held out to be applied to the Obligations hereunder or otherwise secured by the Collateral, without the prior written consent of
the Collateral Agent.
13.9
Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile or other electronic transmission (i.e., a “pdf” or “tif”)), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by
all the parties shall be lodged with Holdings, the Borrower and each Agent.
13.10
Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
13.11
Integration. This Agreement and the other Credit Documents represent the agreement of Holdings, the Borrower, the
Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the Collateral Agent, the Administrative Agent, the Letter of Credit
Issuer or any Lender relative to subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents.
13.12
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.13
Submission to Jurisdiction;
Waivers. Each party hereto hereby irrevocably and unconditionally:
(a)
submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Credit Documents
to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction
of the courts of the State of New York located in the County of New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof;
(b)
consents that any such action or proceeding shall be brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c)
agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage prepaid, to the applicable party at its respective address set
forth in Section 13.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;
(d)
agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and
(e)
waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding
referred to in this Section 13.13 any special, exemplary, punitive or consequential damages.
13.14
Acknowledgments. Each of Holdings and the Borrower hereby acknowledges that:
(a)
it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Credit Documents;
(b) none
of the Administrative Agent, the Collateral Agent, any Lead Arranger, any Joint Bookrunner or any Lender has any fiduciary relationship
with or duty to Holdings or the Borrower arising out of or in connection with this Agreement or any of the other Credit Documents, and
the relationship between the Administrative Agent, the Collateral Agent and the Lenders, on one hand, and Holdings or the Borrower on
the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c)
no Joint Venture is created hereby or by the other Credit Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among Holdings, the Borrower and the Lenders.
13.15
WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, EACH LETTER OF CREDIT
ISSUER, THE SWINGLINE LENDER AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16
Confidentiality. Each Agent, each Letter of Credit Issuer, the Swingline Lender and each Lender shall hold all non-public
information furnished by or on behalf of Holdings and the Borrower and their Subsidiaries in connection with such Lender’s evaluation
of whether to become a Lender hereunder or obtained by such Lender, such Agent or the Letter of Credit Issuer pursuant to the requirements
of this Agreement (“Confidential Information”) confidential in accordance with its customary procedure for handling
confidential information of this nature and, in the case of a Lender that is a bank, in accordance with safe and sound banking practices
and in any event may make disclosure (a) as required or requested by any Governmental Authority or representative thereof or regulatory
authority having jurisdiction over it (including any self-regulatory authority or representative thereof) or pursuant to legal process
or otherwise as required by Applicable Law based on the reasonable advice of counsel, (b) to (i) any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any actual or prospective
party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower
and its obligations, this Agreement or payments hereunder; provided that, in the case of each of clauses (i) and (ii), the relevant
Person is advised of and agrees to be bound by the provisions of this Section 13.16 or other provisions at least as restrictive as this
Section 13.16, (c) to such Lender’s or such Agent’s or the Letter of Credit Issuer’s trustees, attorneys, professional
advisors or independent auditors or Related Parties, in each case who need to know such information in connection with the administration
of the Credit Documents and are informed of the confidential nature of such information or are subject to customary confidentiality obligations
of professional practice or who agree in writing to be bound by the terms of this paragraph (or language substantially similar to this
paragraph) (and to the extent a person’s compliance is within the control of an Agent, Letter of Credit Issuer or Lender, such
Agent, Letter of Credit Issuer or Lender will be responsible for such compliance), (d) with the written consent of the Borrower, (e)
to the extent such Confidential Information (i) becomes publicly available other than as a result of a breach of this Section 13.16,
(ii) becomes available to any Agent, any Lender, the Letter of Credit Issuer or any of their respective Affiliates on a non-confidential
basis from a source that is not subject to these confidentiality provisions or (iii) to the extent such information is independently
developed by such Agent, Lender, Letter of Credit Issuer, or Affiliate without the use of confidential information in breach of this
Section 13.16 or (f) for purposes of establishing a “due diligence” defense; provided that unless specifically prohibited
by Applicable Law or court order, each Lender, each Agent and the Letter of Credit Issuer shall notify the Borrower of any request by
any Governmental Authority or representative thereof (other than any such request in connection with an audit or examination of the financial
condition of such Lender, such Agent or the Letter of Credit Issuer by such Governmental Authority) for disclosure of any such non-public
information prior to disclosure of such information; and provided, further, that, in no event shall any Lender, any Agent
or the Letter of Credit Issuer be obligated or required to return any materials furnished by Holdings, the Borrower or any Subsidiary
of the Borrower. Each Lender, each Agent and the Letter of Credit Issuer agrees that it will not provide to prospective Transferees,
pledgees referred to in Section 13.16 or to prospective direct or indirect contractual counterparties under Hedging Agreements to be
entered into in connection with Loans made hereunder any of the Confidential Information unless such Person is advised of and agrees
to be bound by the provisions of this Section 13.16. The confidentiality provisions contained herein shall not prohibit disclosures to
any trustee, administrator, collateral manager, servicer, backup servicer, lender, rating agency or secured party of any SPV in connection
with the evaluation, administration, servicing of, or the reporting on, the assets or securitization activities of such SPV; provided
that any such Person is advised of and agrees to be bound by the provisions of this Section 13.16.
13.17
Release of Collateral and Guarantee Obligations; Subordination of Liens.
(a)
The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any Collateral
shall be automatically released (i) in full, as set forth in clause (b) below, (ii) upon the sale, transfer or other Disposition (including
any disposition by means of a distribution or Restricted Payment) of such Collateral (including as part of or in connection with any
other sale, transfer or other Disposition permitted hereunder) to any Person other than another Credit Party, to the extent such sale,
transfer or other Disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively
on a certificate to that effect provided to it by any Credit Party upon its reasonable request without further inquiry), (iii) to the
extent such Collateral is comprised of property leased to a Credit Party by a Person that is not a Credit Party, upon termination or
expiration of such lease, (iv) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or
such other percentage of the Lenders whose consent may be required in accordance with Section 13.1), (v) to the extent the property constituting
such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee (in accordance
with the second succeeding sentence and Section 25 of the Guarantee), (vi) as required by the Collateral Agent to effect any sale, transfer
or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents
and (vii) to the extent such Collateral otherwise becomes Excluded Capital Stock or Excluded Property. Any such release shall not in
any manner discharge, affect, or impair the Obligations or any Liens (other than those being released) upon (or Obligations (other than
those being released) of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any
disposition, all of which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance with
the provisions of the Credit Documents. Additionally, the Lenders hereby irrevocably agree that the Guarantors shall be released from
the Guarantee upon consummation of any transaction permitted hereunder resulting in such Subsidiary ceasing to constitute a Restricted
Subsidiary, or otherwise becoming an Excluded Subsidiary (including in connection with any designation of an Unrestricted Subsidiary),
or, in the case of a Previous Holdings, in accordance with the conditions set forth in the definition of Holdings. The Lenders hereby
authorize the Administrative Agent and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, and agreements
necessary or desirable to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this
paragraph, all without the further consent or joinder of any Lender. Any representation, warranty or covenant contained in any Credit
Document relating to any such Collateral or Guarantor shall no longer be deemed to be repeated.
(b)
Notwithstanding anything to the contrary contained herein or any other Credit Document, when all Obligations (other than
(i) Hedging Obligations in respect of any Secured Hedging Agreements, (ii) Cash Management Obligations in respect of any Secured Cash
Management Agreements and (iii) any contingent obligations or contingent indemnification obligations not then due and payable) have been
paid in full, all Commitments have terminated or expired and no Letter of Credit shall be outstanding that is not Cash Collateralized
or back-stopped on terms reasonably satisfactory to the Letter of Credit Issuer, upon request of the Borrower, the Administrative Agent
and/or the Collateral Agent, as applicable, shall (without notice to, or vote or consent of, any Secured Party) take such actions as
shall be required to release its security interest in all Collateral, and to release all obligations under any Credit Document, whether
or not on the date of such release there may be any (i) Hedging Obligations in respect of any Secured Hedging Agreements, (ii) Cash Management
Obligations in respect of any Secured Cash Management Agreements and (iii) any contingent obligations or contingent indemnification obligations
not then due and payable. Any such release of Obligations shall be deemed subject to the provision that such Obligations shall be reinstated
if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor,
or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower
or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(c)
Notwithstanding anything to the contrary contained herein or in any other Credit Document, upon reasonable request of the
Borrower in connection with any Liens permitted by the Credit Documents, the Collateral Agent shall (without notice to, or vote or consent
of, any Secured Party) take such actions as shall be required to give effect to (by means of an acknowledgment reasonably satisfactory
to the Administrative Agent), or to subordinate the Lien on any Collateral to, any Lien permitted under Sections 10.2(c), (e) (solely
as it relates to clauses (c) and (f) of Section 10.2), (f), (l), (m), (n), (o), (q), (r), (s), (v), (w), (x), (y), (aa), (ff) and clauses
(d), (e), (f), (g), (i) and (n) of the definition of “Permitted Encumbrances.” In addition, notwithstanding anything
to the contrary contained herein or in any other Credit Document, upon reasonable request of the Borrower, the Administrative Agent and
the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party) enter into subordination or intercreditor agreements
with respect to Indebtedness to the extent the Administrative Agent or Collateral Agent is otherwise contemplated herein as a party to
such subordination or intercreditor agreements, in each case to the extent consistent with the provisions of Section 12.15.
(d)
Notwithstanding the foregoing or anything in the Credit Documents to the contrary, at the direction of the Required Lenders,
the Administrative Agent may, in exercising remedies, take any and all necessary and appropriate action to effectuate a credit bid of
all Loans (or any lesser amount thereof) for the Credit Parties’ assets in a bankruptcy, foreclosure or other similar proceeding,
forbear from exercising remedies upon an Event of Default, or in a proceeding under any Debtor Relief Law, enter into a settlement agreement
on behalf of all Lenders.
13.18
USA PATRIOT ACT. Each Lender hereby notifies the Borrower and each Credit Party that pursuant to the requirements
of the PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower and each Credit Party, which
information includes the name and address of the Borrower and each Credit Party and other information that will allow such Lender to
identify the Borrower and Credit Parties in accordance with the PATRIOT Act.
13.19
Legend. THE TERM LOANS WILL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES.
THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF THESE TERM LOANS MAY BE OBTAINED BY WRITING TO THE BORROWER AT THE
ADDRESS SET FORTH IN SECTION 13.2.
13.20
Payments Set Aside. To the extent that any payment by or on behalf of Holdings or the Borrower is made to any Agent
or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with
any proceeding or otherwise, then (a) to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect.
13.21 Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any
Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that
any liability of any EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be
subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and
agrees to be bound by:the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities
arising hereunder which may be payable to it by any party hereto that is an EEA 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 EEA 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 Credit 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 EEA
Resolution Authority.
13.22
Execution by Target, Amplify and Subsidiaries. Notwithstanding any other provision contained herein, the Target,
Amplify, Surviving Company and the Subsidiaries of the Target, Amplify and Surviving Company shall have no rights or obligations under
any of the Credit Documents until the consummation of the Mergers, and any covenants hereunder relating to the Target, Amplify and the
Subsidiaries of the Target and Amplify in any Credit Document shall not become effective until such time. Upon consummation of the Mergers,
the signature pages to this Agreement and each other Credit Documents executed on behalf of the Target, Amplify and any of their respective
Subsidiaries shall be deemed released.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each
of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
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CRACKLE PURCHASER CORP., as Holdings
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[SIGNATURE PAGE TO CREDIT
AGREEMENT]
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CRACKLE MERGER SUB I CORP., as initial Borrower prior to the consummation of the Amplify Merger
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WIREPATH LLC, after giving effect to the Amplify Merger, as Borrower
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[SIGNATURE
PAGE TO CREDIT AGREEMENT]
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UBS AG, STAMFORD BRANCH as Administrative Agent, Collateral Agent, Letter of Credit Issuer and Lender
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SUNTRUST BANK as Letter of Credit Issuer and Lender
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[SIGNATURE
PAGE TO CREDIT AGREEMENT]
[SIGNATURE PAGE TO CREDIT
AGREEMENT]
Exhibit 10.5
EXECUTION VERSION
INCREMENTAL AGREEMENT NO. 2
INCREMENTAL AGREEMENT
NO. 2, dated as of October 31, 2018 (this “Incremental Agreement”), in respect of that certain Credit Agreement,
dated as of August 4, 2017 (as amended by that certain Amendment Agreement dated as of November 1, 2017, as further
amended by that certain Incremental Agreement No. 1 dated as of February 5, 2018, and as in effect prior to giving effect
to this Incremental Agreement, the “Credit Agreement”), among Wirepath LLC, a Delaware limited liability company
(the “Borrower”), Crackle Purchaser LLC (f/k/a Crackle Purchaser Corp.), a Delaware limited liability company
(“Holdings”), the Lenders from time to time party thereto, the Letter of Credit Issuers from time to time party
thereto, UBS AG, Stamford Branch, as the Administrative Agent, the Collateral Agent and Swingline Lender, and the other parties from
time to time party thereto.
WHEREAS, the Borrower desires,
(i) pursuant to Section 2.14(b) of the Credit Agreement, to obtain Incremental Term Loans, the proceeds of which shall
be used to prepay in full all of the Term Loans (the “Existing Term Loans”) outstanding under the Credit Agreement
as of the Second Incremental Agreement Effective Date (as defined below) (the “Refinancing”), to pay other related
amounts in connection with the Refinancing and for other general corporate purposes, which may include the financing of acquisitions and
other Investments, and (ii) to amend the Applicable Margin for the Revolving Credit Loans;
WHEREAS, (a) the New
Term Lender (as defined below) has agreed to provide such Incremental Term Loans in an aggregate principal amount equal to $292,354,969
minus the aggregate Rollover Amount (as defined below) (such Incremental Term Loans, together with any term loans deemed made as set forth
in clause (b) below, the “Tranche C Term Loans”) and (b) each Rollover Lender (as defined below) will have
all of its outstanding Existing Term Loans (or such lesser amount as may be notified to such Lender by the Administrative Agent prior
to the Second Incremental Agreement Effective Date) converted into a like principal amount of Tranche C Term Loans effective as of the
Second Incremental Agreement Effective Date, in each case in accordance with the terms and conditions set forth herein and in the Credit
Agreement;
WHEREAS, UBS Securities LLC
and SunTrust Robinson Humphry, Inc. have agreed to act in the roles and pursuant to the titles set forth in the Engagement Letter
(as defined below) in respect of such Incremental Term Loans (acting in its capacity in such roles and titles, the “Arrangers”);
WHEREAS, in accordance with
Section 2.14(e) of the Credit Agreement and, as applicable, Section 13.1 of the Credit Agreement, the Borrower, Holdings,
the Administrative Agent and the Tranche C Term Lenders (the Tranche C Term Lenders, as of the Second Incremental Agreement Effective
Date, constituting (a) 100.0% of the Initial Term Loan Lenders and (b) the Required Lenders) have agreed to amend the Credit
Agreement as set forth herein in connection with, and to facilitate the incurrence of, such Tranche C Term Loans; and
WHEREAS, in accordance with
Section 13.1 of the Credit Agreement, the Borrower, Holdings, the Administrative Agent and all Revolving Credit Lenders have agreed
to amend the Credit Agreement to amend the Applicable Margin for the Revolving Credit Loans;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Defined
Terms; References. (a) Unless otherwise specifically defined herein, each term used herein which is defined in the Amended Credit
Agreement (as defined below) has the meaning assigned to such term in the Amended Credit Agreement. The rules of construction and
other interpretive provisions specified in Sections 1.2, 1.5, 1.6 and 1.7 of the Amended Credit Agreement shall apply to this Incremental
Agreement, including terms defined in the preamble and recitals hereto.
(b) As used in this
Incremental Agreement, the following terms have the meanings specified below:
“Amended Credit Agreement”
shall mean the Credit Agreement, as amended by this Incremental Agreement.
“Existing Term Lender”
shall mean a Lender with an Existing Term Loan on the Second Incremental Agreement Effective Date, immediately prior to giving effect
to this Incremental Agreement.
“Existing Term Loan
Prepayment Amount” shall mean, for each Existing Term Lender, the sum of (i) the aggregate principal amount of Existing
Term Loans owing to such Existing Term Lender on the Second Incremental Agreement Effective Date plus (ii) all accrued and
unpaid interest on such Existing Term Lender’s Existing Term Loans as of the Second Incremental Agreement Effective Date plus
(iii) any other amounts owing to such Existing Term Lender under the Credit Documents as of the Second Incremental Agreement Effective
Date, including any amounts owing pursuant to Section 2.11 of the Credit Agreement.
“New Term Lender”
shall mean the Lender identified on the signature pages hereto that is not a Rollover Lender.
“Tranche C Term Lenders”
shall mean the New Term Lender and each Rollover Lender.
Section 2. Second Incremental Agreement Effective
Date Transactions.
(a) With
effect from and including the Second Incremental Agreement Effective Date, each Tranche C Term Lender shall become party to the
Amended Credit Agreement as a “Lender” and an “Initial Term Loan Lender”, shall have an Incremental Term
Loan Commitment (i) in the case of the New Term Lender, in an aggregate principal amount equal to $292,354,969 minus the
aggregate Rollover Amount and (ii) in the case of each other Tranche C Term Lender, in the amount equal to such Lender’s
Rollover Amount (each such Incremental Term Loan Commitment, a “Tranche C Term Loan Commitment”), and shall have
all of the rights and obligations of a “Lender” and an “Initial Term Loan Lender” under the Amended Credit
Agreement and the other Credit Documents.
(b) On
the Second Incremental Agreement Effective Date, each Existing Term Lender shall cease to be a Lender party to the Credit Agreement (and,
for the avoidance of doubt, shall not be a party to the Amended Credit Agreement with respect to Initial Term Loans (except to the extent
that it shall subsequently become party thereto (i) pursuant to an Assignment and Acceptance entered into with any Lender in accordance
with the terms of the Amended Credit Agreement, (ii) with respect to any Rollover Lender, pursuant to a “cashless roll”
in accordance with this Incremental Agreement or (iii) through other means under the terms and provisions of the Amended Credit Agreement)),
and all accrued and unpaid fees and other amounts payable under the Credit Agreement for the account of each Existing Term Lender shall
be due and payable on such date; provided that the provisions of Sections 2.10, 2.11, 5.4 and 13.5 of the Credit Agreement shall
continue to inure to the benefit of each Existing Term Lender after the Second Incremental Agreement Effective Date.
(c) Each
Tranche C Term Loan made on the Second Incremental Agreement Effective Date shall have an initial Interest Period ending on November 30,
2018. The Tranche C Term Lenders hereby consent to such Interest Period.
(d) On
the Second Incremental Agreement Effective Date:
(i) Each
Tranche C Term Lender, severally and not jointly, shall make (or in the case of any Rollover Lender, be deemed to make) an Incremental
Term Loan to the Borrower in accordance with this Section 2(d) and Section 2.1 of the Credit Agreement by delivering (or
in the case of any Rollover Lender, being deemed to deliver) to the Administrative Agent immediately available funds in an amount equal
to its Tranche C Term Loan Commitment (such aggregate amount, the “New Lender Funding Amount”); and
(ii) the
Administrative Agent shall apply the New Lender Funding Amount, including the Rollover Amount, (x) first, to the extent not otherwise
paid by or on behalf of the Borrower, to pay to each applicable Existing Term Lender an amount equal to such Existing Term Lender’s
Existing Term Loan Prepayment Amount (except as otherwise agreed by such Existing Term Lender) and (y) second, to fund the remaining
amount to the Borrower.
Section 2A. Cashless
Roll. Any Existing Term Lender may elect for a “cashless roll” of 100% (or such lesser amount as may be notified to such
Existing Term Lender by the Administrative Agent prior to the Second Incremental Agreement Effective Date) of its Existing Term Loans
into Tranche C Term Loans in the same principal amount by indicating such election for a cashless settlement option on its signature page hereto
(such electing Existing Term Lenders, the “Rollover Lenders”). It is understood and agreed that (a) simultaneously
with the deemed making of Tranche C Term Loans by each Rollover Lender and the payment to such Rollover Lender of all accrued and unpaid
fees and other amounts in respect of the Existing Term Loan in respect of such Rollover Amount, such elected amount (or such lesser amount
as may be notified to such Rollover Lender by the Administrative Agent prior to the Second Incremental Agreement Effective Date) of the Existing
Term Loans held by such Rollover Lender (the “Rollover Amount”) shall be deemed to be extinguished, repaid and no longer
outstanding and such Rollover Lender shall thereafter hold a Tranche C Term Loan in an aggregate principal amount equal to such Rollover
Lender’s Rollover Amount, (b) no Rollover Lender shall receive any prepayment being made to other Existing Term Lenders holding
Existing Term Loans from the proceeds of the Tranche C Term Loans to the extent of such Rollover Lender’s Rollover Amount and (c) any
Existing Term Loan held by a Rollover Lender that is not so allocated to such Rollover Lender as a Rollover Amount shall be repaid in
full on the Second Incremental Agreement Effective Date together with all accrued and unpaid amounts owing to such Existing Term Lender
in respect of such amount.
Section 3. Amendment; Borrowings
on Second Incremental Agreement Effective Date.
(a) Each
of the parties hereto (as of the Second Amendment Effective Date constituting all Lenders under the Credit Agreement and the Credit Parties)
agrees that, effective on the Second Incremental Agreement Effective Date, the Credit Agreement shall be amended to delete the stricken
text (indicated textually in the same manner as the following example: stricken text)
and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.
(b) With
effect from the effectiveness of this Incremental Agreement, each Tranche C Term Loan made on the Second Incremental Agreement Effective
Date in accordance with Section 2(d) hereof shall constitute, for all purposes of the Amended Credit Agreement, a Term Loan
made pursuant to the Amended Credit Agreement and this Incremental Agreement; provided that each such Tranche C Term Loan shall
constitute an “Initial Term Loan” for all purposes of the Amended Credit Agreement, and all provisions of the Amended Credit
Agreement applicable to Initial Term Loans shall be applicable to such Tranche C Term Loans.
(c) The
Tranche C Term Loan Commitments provided for hereunder shall terminate on the Second Incremental Agreement Effective Date immediately
upon the borrowing of the Tranche C Term Loans pursuant to Section 2(d).
Section 4. Effect
of Amendment; Reaffirmation; Etc. (a) Except as expressly set forth herein or in the Amended Credit Agreement, this Incremental
Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the
Lenders or the Agents under the Credit Agreement or under any other Credit Document and shall not alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit
Agreement or of any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and
effect. Without limiting the foregoing, (i) each Credit Party acknowledges and agrees that (A) each Credit Document to which
it is a party is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms (in the case
of the Credit Agreement, as amended hereby) and (B) the Security Documents do, and all of the Collateral does, and in each case shall
continue to, secure the payment of all First Lien Obligations (or equivalent terms in the Security Documents) (including, for the avoidance
of doubt, the Tranche C Term Loans made on the Second Incremental Agreement Effective Date) on the terms and conditions set forth in the
Security Documents, and hereby confirms and, to the extent necessary, ratifies
the security interests granted by it pursuant to the Security Documents to which it is a party and (ii) each Guarantor hereby confirms
and ratifies its continuing unconditional obligations as Guarantor under the Guarantee with respect to all of the First Lien Obligations
(including, for the avoidance of doubt, the Tranche C Term Loans made on the Second Incremental Agreement Effective Date).
(b) This Incremental
Agreement constitutes an “Incremental Agreement” and “Credit Document” (each as defined in the Credit Agreement).
Section 5. Representations
of Credit Parties. Each of the Credit Parties hereby represents and warrants that, on the Second Incremental Agreement Effective Date,
immediately prior to and immediately after giving effect to the transactions contemplated by this Incremental Agreement, including the
borrowing of Tranche C Term Loans provided for herein and the use of proceeds thereof:
(a) all
representations and warranties made by any Credit Party contained herein or in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and warranties had been made on and as of the Second Incremental
Agreement Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations
and warranties are qualified by materiality, Material Adverse Effect, or similar language, in which case such representation or warranty
shall be true and correct in all respects after giving effect to such qualification);
(b) no Default or Event of Default shall have occurred and be continuing; and
(c) the Credit Parties and their Subsidiaries on a consolidated basis are Solvent.
Section 6.
Governing Law. THIS INCREMENTAL AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7. Miscellaneous.
Sections 13.13 and 13.15 of the Credit Agreement are incorporated herein by reference and apply mutatis mutandis.
Section 8. Counterparts.
This Incremental Agreement may be executed by one or more of the parties to this Incremental Agreement on any number of separate counterparts
(including by facsimile or other electronic transmission (e.g., a “pdf” or “tif”)), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Section 9. Effectiveness.
This Incremental Agreement, and the obligation of each Tranche C Term Lender to make the Incremental Term Loan to be made by it pursuant
to Section 2(d)(i) of this Incremental Agreement, shall become effective on the date (the “Second Incremental Agreement
Effective Date”) when each of the following conditions shall have been satisfied:
(a) the
Administrative Agent shall have received from each Credit Party, the Administrative Agent, each Tranche C Term Lender and each
Revolving Credit Lender either (i) a counterpart of the Incremental Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a
signed signature page of this Incremental Agreement) that such party has signed a counterpart of this Incremental
Agreement;
(b) the
Borrower shall have paid all fees required to be paid to the Arrangers in connection with this Incremental Agreement as separately agreed;
(c) the
Administrative Agent and the Arrangers shall have received payment for all reasonable and documented costs and expenses required to
be paid or reimbursed under Section 13.5 of the Credit Agreement or that certain Engagement Letter, dated as of
October 22, 2018 (the “Engagement Letter”) among the Borrower, Holdings and the Arrangers for which invoices
have been presented a reasonable period of time prior to the Second Incremental Agreement Effective Date;
(d) the
representations and warranties set forth in Section 5 of this Incremental Agreement shall be true and correct; and
(e) the Administrative Agent shall have received:
(i) a
certificate of each Credit Party, dated the Second Incremental Agreement Effective Date, substantially consistent with the certificates
delivered on the First Incremental Agreement Effective Date or otherwise reasonably acceptable to the Administrative Agent;
(ii) a
certificate of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of
each Credit Party;
(iii) a
written Notice of Borrowing in respect of the Tranche C Term Loans; and
(iv) a written notice of prepayment in respect of the Initial Term Loans;
(v) a
legal opinion of Simpson Thacher & Bartlett LLP, counsel to Holdings, the Borrower and its Subsidiaries, in form and
substance reasonably satisfactory to the Administrative Agent; and
(vi) if
the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership
Regulation”), a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in
relation to the Borrower.
Section 10. No Novation.
Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Credit Agreement
or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or by instruments
executed concurrently herewith and except to the extent repaid as provided herein.
Nothing implied in this Incremental Agreement
or in any other document contemplated hereby shall discharge or release the Lien or priority of any Security Document or any other security
therefor or otherwise be construed as a release or other discharge of any of the Credit Parties under any Credit Document from any of
its obligations and liabilities as a borrower, guarantor or pledgor under any of the Credit Documents, except, in each case, to any extent
modified hereby and except to the extent repaid as provided herein.
[SIGNATURE PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Incremental Agreement to be duly executed by their respective authorized officers
as of the day and year first above written.
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CRACKLE PURCHASER LLC
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By:
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[*****]
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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WIREPATH LLC
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By:
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[*****]
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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[Signature
Page to Incremental Agreement No. 2]
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WIREPATH HOME SYSTEMS LLC
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By:
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[*****]
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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AMPLIFY SERVICES, LLC
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By:
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[*****]
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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SUNBRITE HOLDING
CORPORATION
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By:
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[*****]
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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AUTONOMIC CONTROLS INC.
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By:
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[*****]
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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SUNBRITE TV LLC
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By:
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[*****]
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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ALLNET MERGER LLC
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By:
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[*****]
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Name:
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Michael Carlet
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Title:
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Chief Financial Officer
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[Signature
Page to Incremental Agreement No. 2]
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UBS AG, STAMFORD BRANCH, as Administrative Agent
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By:
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[*****]
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Name:
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Houssem Daly
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Title:
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Associate Director
Banking Products Services, US
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By:
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[*****]
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Name:
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Darlene Arias
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Title:
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Director
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[Signature
Page to Incremental Agreement No. 2]
[Signature Pages of Tranche C Term Lenders and Revolving Credit
Lenders to be kept on file by the Administrative Agent]
Exhibit A
[Amendments to Credit Agreement attached]
EXECUTION VERSION
CREDIT AGREEMENT
Dated as of August 4,
2017,
as amended by Amendment Agreement, dated as of November 1,
2017,
as amended by Incremental Agreement No. 1, dated as of February 5, 2018
as
amended by Incremental Agreement No. 2, dated as of October 31, 2018
among
CRACKLE
PURCHASER LLC,
as Holdings,
CRACKLE
MERGER SUB I CORP., as the initial Borrower, which on the Closing Date shall be merged with and into an entity to be renamed
WIREPATH LLC (with the entity to be renamed WIREPATH LLC as the surviving entity of such merger and the Borrower)
as the Borrower,
The Several Lenders
from
Time to Time Parties Hereto,
UBS
AG, STAMFORD BRANCH,
as Administrative Agent, Collateral Agent and Swingline
Lender,
——————————————————————————————
UBS
SECURITIES LLC and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint Bookrunners for
the Initial Term Loan Facility
UBS
SECURITIES LLC and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint Bookrunners for
the Revolving Credit Facility
Table of Contents
Page
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SECTION 1.
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DEFINITIONS
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2
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1.1
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Defined Terms
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2
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1.2
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Other Interpretive Provisions
|
76
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1.3
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Accounting Terms
|
77
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1.4
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Rounding
|
77
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1.5
|
References to Agreements, Laws, Etc.
|
77
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|
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1.6
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Times of Day
|
77
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1.7
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Timing of Payment or Performance
|
77
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1.8
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Currency Equivalents Generally
|
78
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1.9
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Classification of Loans and Borrowings
|
78
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1.10
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Letter of Credit Amounts
|
78
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1.11
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Limited Condition Acquisitions
|
79
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1.12
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Pro Forma and Other Calculations
|
80
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SECTION 2.
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AMOUNT AND TERMS OF CREDIT FACILITIES
|
82
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2.1
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Loans
|
82
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2.2
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Minimum Amount of Each Borrowing; Maximum Number of Borrowings
|
83
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2.3
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Notice of Borrowing
|
84
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2.4
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Disbursement of Funds
|
85
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2.5
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Repayment of Loans; Evidence of Debt
|
86
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2.6
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Conversions and Continuations
|
87
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2.7
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Pro Rata Borrowings
|
88
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2.8
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Interest
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88
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2.9
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Interest Periods
|
89
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2.10
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Increased Costs, Illegality, Etc
|
89
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2.11
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Compensation
|
92
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Page
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2.12
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Change of Lending Office
|
92
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2.13
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Notice of Certain Costs
|
92
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2.14
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Incremental Facilities
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92
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2.15
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Extensions of Term Loans, Revolving Credit Loans and Revolving Credit Commitments and Additional/Replacement Revolving Credit Loans and Additional/Replacement Revolving Credit Commitments
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96
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2.16
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Defaulting Lenders
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99
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2.17
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Term Loan Exchange Notes
|
102
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SECTION 3.
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LETTERS OF CREDIT
|
103
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3.1
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Issuance of Letters of Credit
|
103
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3.2
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Letter of Credit Requests
|
104
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3.3
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Letter of Credit Participations
|
106
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3.4
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Agreement to Repay Letter of Credit Drawings
|
107
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3.5
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Increased Costs
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108
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3.6
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New or Successor Letter of Credit Issuer
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109
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3.7
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Role of Letter of Credit Issuer
|
110
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3.8
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Cash Collateral
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110
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3.9
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Conflict with Issuer Documents
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111
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3.10
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Letters of Credit Issued for Restricted Subsidiaries
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111
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3.11
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Other
|
111
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3.12
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Applicability of ISP and UCP
|
112
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SECTION 4.
|
FEES; COMMITMENT REDUCTIONS AND TERMINATIONS
|
112
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4.1
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Fees
|
112
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4.2
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Voluntary Reduction of Commitments
|
113
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4.3
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Mandatory Termination of Commitments
|
114
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SECTION 5.
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PAYMENTS
|
115
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5.1
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Voluntary Prepayments
|
115
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5.2
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Mandatory Prepayments
|
116
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Page
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5.3
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Method and Place of Payment
|
120
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5.4
|
Net Payments
|
120
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5.5
|
Computations of Interest and Fees
|
123
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5.6
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Limit on Rate of Interest.
|
123
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SECTION 6.
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CONDITIONS PRECEDENT TO INITIAL CREDIT EVENT
|
124
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6.1
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Credit Documents
|
124
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6.2
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Collateral
|
124
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6.3
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Legal Opinions
|
125
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6.4
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Structure and Terms of the Transaction; No Material Adverse Effect
|
125
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6.5
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Closing Certificates
|
125
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6.6
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Corporate Proceedings
|
126
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6.7
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Corporate Documents
|
126
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6.8
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Solvency Certificate
|
126
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6.9
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Financial Statements
|
126
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6.10
|
PATRIOT ACT
|
126
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6.11
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Fees and Expenses
|
126
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6.12
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Specified Representations
|
126
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|
SECTION 7.
|
CONDITIONS PRECEDENT TO ALL CREDIT EVENTS
|
127
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7.1
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No Default; Representations and Warranties
|
127
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7.2
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Notice of Borrowing; Letter of Credit Request
|
127
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|
SECTION 8.
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REPRESENTATIONS, WARRANTIES AND AGREEMENTS
|
127
|
|
|
|
|
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8.1
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Corporate Status
|
127
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|
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8.2
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Corporate Power and Authority; Enforceability
|
128
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|
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8.3
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No Violation
|
128
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|
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8.4
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Litigation
|
128
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|
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8.5
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Margin Regulations
|
128
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|
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|
|
8.6
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Governmental and Third Party Approvals
|
128
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Page
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8.7
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Investment Company Act
|
128
|
|
|
|
|
|
8.8
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True and Complete Disclosure
|
128
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|
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|
|
|
8.9
|
Financial Statements
|
129
|
|
|
|
|
|
8.10
|
Tax Returns and Payments, Etc.
|
130
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|
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|
|
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8.11
|
Compliance with ERISA
|
130
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|
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|
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|
8.12
|
Subsidiaries
|
130
|
|
|
|
|
|
8.13
|
Intellectual Property
|
130
|
|
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|
|
|
8.14
|
Environmental Laws
|
131
|
|
|
|
|
|
8.15
|
Properties, Assets and Rights
|
131
|
|
|
|
|
|
8.16
|
Solvency
|
131
|
|
|
|
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|
8.17
|
Material Adverse Change
|
131
|
|
|
|
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|
8.18
|
Use of Proceeds
|
131
|
|
|
|
|
|
8.19
|
Anti-Corruption Laws
|
132
|
|
|
|
|
|
8.20
|
Sanctioned Persons
|
132
|
|
|
|
|
|
8.21
|
PATRIOT Act
|
132
|
|
|
|
|
|
8.22
|
Labor Matters
|
132
|
|
|
|
|
|
8.23
|
Subordination of Junior Financing
|
133
|
|
|
|
|
|
8.24
|
No Default
|
133
|
|
|
|
|
|
SECTION 9.
|
AFFIRMATIVE COVENANTS
|
133
|
|
|
|
|
|
9.1
|
Information Covenants
|
133
|
|
|
|
|
|
9.2
|
Books, Records and Inspections
|
135
|
|
|
|
|
|
9.3
|
Maintenance of Insurance.
|
136
|
|
|
|
|
|
9.4
|
Payment of Taxes
|
137
|
|
|
|
|
|
9.5
|
Consolidated Corporate Franchises
|
137
|
|
|
|
|
|
9.6
|
Compliance with Statutes
|
137
|
|
|
|
|
|
9.7
|
ERISA
|
137
|
|
|
|
|
|
9.8
|
Good Repair
|
138
|
Page
|
9.9
|
End of Fiscal Years; Fiscal Quarters
|
138
|
|
|
|
|
|
9.10
|
Additional Guarantors and Grantors
|
138
|
|
|
|
|
|
9.11
|
Pledges of Additional Stock and Evidence of Indebtedness
|
138
|
|
|
|
|
|
9.12
|
Use of Proceeds
|
139
|
|
|
|
|
|
9.13
|
Changes in Business
|
139
|
|
|
|
|
|
9.14
|
Further Assurances
|
139
|
|
|
|
|
|
9.15
|
Designation of Subsidiaries
|
141
|
|
|
|
|
|
9.16
|
Maintenance of Ratings
|
141
|
|
|
|
|
|
9.17
|
Post-Closing Obligations
|
141
|
|
|
|
|
|
SECTION 10.
|
NEGATIVE COVENANTS
|
142
|
|
|
|
|
|
10.1
|
Limitation on Indebtedness
|
142
|
|
|
|
|
|
10.2
|
Limitation on Liens
|
150
|
|
|
|
|
|
10.3
|
Limitation on Fundamental Changes
|
155
|
|
|
|
|
|
10.4
|
Limitation on Sale of Assets
|
157
|
|
|
|
|
|
10.5
|
Limitation on Investments
|
160
|
|
|
|
|
|
10.6
|
Limitation on Restricted Payments
|
165
|
|
|
|
|
|
10.7
|
Limitations on Debt Payments and Amendments
|
170
|
|
|
|
|
|
10.8
|
Negative Pledge Clauses
|
171
|
|
|
|
|
|
10.9
|
Passive Holding Company; Etc.
|
174
|
|
|
|
|
|
10.10
|
Consolidated First Lien Debt to Consolidated EBITDA Ratio
|
176
|
|
|
|
|
|
10.11
|
Transactions with Affiliates
|
176
|
|
|
|
|
|
SECTION 11.
|
EVENTS OF DEFAULT
|
179
|
|
|
|
|
|
11.1
|
Payments
|
179
|
|
|
|
|
|
11.2
|
Representations, Etc.
|
179
|
|
|
|
|
|
11.3
|
Covenants
|
179
|
|
|
|
|
|
11.4
|
Default Under Other Agreements
|
180
|
|
|
|
|
|
11.5
|
Bankruptcy, Etc.
|
180
|
Page
|
11.6
|
ERISA
|
180
|
|
|
|
|
|
11.7
|
Guarantee
|
181
|
|
|
|
|
|
11.8
|
Security Document
|
181
|
|
|
|
|
|
11.9
|
Judgments
|
181
|
|
|
|
|
|
11.10
|
Change of Control
|
181
|
|
|
|
|
|
11.11
|
Borrower’s Right to Cure
|
181
|
|
|
|
|
|
SECTION 12.
|
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT.
|
183
|
|
|
|
|
|
12.1
|
Appointment.
|
183
|
|
|
|
|
|
12.2
|
Limited Duties
|
183
|
|
|
|
|
|
12.3
|
Binding Effect
|
183
|
|
|
|
|
|
12.4
|
Delegation of Duties
|
183
|
|
|
|
|
|
12.5
|
Exculpatory Provisions
|
184
|
|
|
|
|
|
12.6
|
Reliance by Administrative Agent
|
184
|
|
|
|
|
|
12.7
|
Notice of Default
|
184
|
|
|
|
|
|
12.8
|
Non-Reliance on Administrative Agent and Other Lenders
|
185
|
|
|
|
|
|
12.9
|
Indemnification
|
185
|
|
|
|
|
|
12.10
|
Agent in Its Individual Capacity
|
185
|
|
|
|
|
|
12.11
|
Successor Agent
|
186
|
|
|
|
|
|
12.12
|
Withholding Tax
|
187
|
|
|
|
|
|
12.13
|
Duties as Collateral Agent and as Paying Agent
|
187
|
|
|
|
|
|
12.14
|
Authorization to Release Liens and Guarantees
|
187
|
|
|
|
|
|
12.15
|
Intercreditor Agreements
|
187
|
|
|
|
|
|
12.16
|
Secured Cash Management Agreements and Secured Hedge Agreements
|
188
|
|
|
|
|
|
12.17
|
Administrative Agent May File Proofs of Claim
|
188
|
|
|
|
|
|
SECTION 13.
|
MISCELLANEOUS.
|
189
|
|
|
|
|
|
13.1
|
Amendments and Waivers
|
189
|
|
|
|
|
|
13.2
|
Notices; Electronic Communications
|
192
|
Page
|
13.3
|
No Waiver; Cumulative Remedies
|
194
|
|
|
|
|
|
13.4
|
Survival of Representations and Warranties
|
194
|
|
|
|
|
|
13.5
|
Payment of Expenses; Indemnification.
|
195
|
|
|
|
|
|
13.6
|
Successors and Assigns; Participations and Assignments.
|
196
|
|
|
|
|
|
13.7
|
Replacements of Lenders Under Certain Circumstances
|
203
|
|
|
|
|
|
13.8
|
Adjustments; Set-off
|
204
|
|
|
|
|
|
13.9
|
Counterparts
|
204
|
|
|
|
|
|
13.10
|
Severability
|
204
|
|
|
|
|
|
13.11
|
Integration
|
205
|
|
|
|
|
|
13.12
|
GOVERNING LAW
|
205
|
|
|
|
|
|
13.13
|
Submission to Jurisdiction; Waivers
|
205
|
|
|
|
|
|
13.14
|
Acknowledgments
|
205
|
|
|
|
|
|
13.15
|
WAIVERS OF JURY TRIAL
|
205
|
|
|
|
|
|
13.16
|
Confidentiality
|
206
|
|
|
|
|
|
13.17
|
Release of Collateral and Guarantee Obligations; Subordination of Liens
|
207
|
|
|
|
|
|
13.18
|
USA PATRIOT ACT
|
208
|
|
|
|
|
|
13.19
|
Legend
|
208
|
|
|
|
|
|
13.20
|
Payments Set Aside
|
208
|
|
|
|
|
|
13.21
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
208
|
|
|
|
|
|
13.22
|
Execution by Target, Amplify and Subsidiaries
|
209
|
SCHEDULES
|
Schedule 1.1(a)
|
Commitments of Lenders
|
|
Schedule 1.1(b)
|
Existing Letters of Credit
|
|
Schedule 1.1(c)
|
Mortgaged Property
|
|
Schedule 8.12
|
Subsidiaries
|
|
Schedule 8.15
|
Owned Real Property
|
|
Schedule 9.17
|
Post-Closing Obligations
|
|
Schedule 10.1
|
Indebtedness
|
|
Schedule 10.2
|
Liens
|
|
Schedule 10.4
|
Dispositions
|
|
Schedule 10.5
|
Investments
|
|
Schedule 10.8
|
Negative Pledge Clauses
|
|
Schedule 10.11
|
Transactions with Affiliates
|
|
Schedule 13.2
|
Addresses for Notices
|
|
|
|
|
EXHIBITS
|
|
|
|
|
|
Exhibit A
|
Form of Guarantee
|
|
Exhibit B
|
Form of Security Agreement
|
|
Exhibit C
|
Form of Pledge Agreement
|
|
Exhibit D
|
Form of Notice of Borrowing
|
|
Exhibit E
|
Form of Closing Certificate
|
|
Exhibit F-1
|
Form of Promissory Note (Revolving Credit Loans and Swingline Loans)
|
|
Exhibit F-2
|
Form of Promissory Note (Initial Term Loans)
|
|
Exhibit G-1
|
Form of Equal Priority Intercreditor Agreement
|
|
Exhibit G-2
|
Form of Junior Priority Intercreditor Agreement
|
|
Exhibit H
|
Form of Assignment and Acceptance
|
|
Exhibit I
|
Form of Affiliated Lender Assignment and Acceptance
|
|
Exhibit J
|
Form of Solvency Certificate
|
|
Exhibit K
|
Form of United States Tax Compliance Certificate
|
|
Exhibit L
|
Form of Intercompany Subordinated Note
|
|
Exhibit M
|
Form of Perfection Certificate
|
|
Exhibit N
|
Form of Notice of Voluntary Prepayment
|
CREDIT AGREEMENT, dated
as of August 4, 2017, among CRACKLE PURCHASER LLC (f/k/a Crackle Purchaser Corp.)CORP.,
a Delaware corporation (“Holdings”; as hereinafter further defined), CRACKLE MERGER SUB I CORP., a Delaware
corporation (“Merger Sub”), which on the Closing Date shall be merged with and into Amplify (with Amplify surviving
such merger as the Debt Surviving Company and being renamed WIREPATH LLC, as the “Borrower”; as hereinafter
further defined), the Lenders from time to time party hereto, the Letter of Credit Issuers from time to time party hereto and UBS AG,
STAMFORD BRANCH, as the Administrative Agent, Collateral Agent and Swingline Lender.
RECITALS:
WHEREAS, capitalized terms
used and not defined in the preamble and these recitals shall have the respective meanings set forth for such terms in Section 1.1
hereof;
WHEREAS, pursuant to the Acquisition
Agreement, (i) Merger Sub will merge with and into Amplify (such merger, the “Amplify Merger”), with Amplify being
the surviving entity of the Amplify Merger (the “Debt Surviving Company”, which shall immediately thereafter be renamed
Wirepath LLC), (ii) Crackle Merger Sub II Corp., a Delaware corporation (“Merger Sub II”), will merge with and
into Amplify Holdings LLC, a Delaware limited liability company (the “Target”; such merger, the “Company Merger”
and, together with the Amplify Merger, the “Mergers”), with the Target being the surviving entity of the Company Merger
and (iii) except with respect to certain equityholders of the Target and its subsidiaries, including management of the Target and
its subsidiaries, who agree to roll over their Capital Stock of the Target and its Affiliates or the cash proceeds they received from
the Transactions into Capital Stock in Holdings or a Parent Entity of Holdings (in such capacity, the “Rollover Investors”),
the GA Equityholders and the equityholders of the Target will receive cash in exchange for their Capital Stock (including phantom equity
units) in the Target and Amplify, respectively, and the former equityholders of the Target will be entitled to receive the payment in
respect of the 2017 Contingent Value Rights, the Deferred Blocker Consideration and the Deferred Company Consideration (collectively,
the “Merger Consideration”);
WHEREAS, (a) the Sponsor
and certain other investors (including the Rollover Investors and certain members of management of the Target and its affiliates) arranged
by and/or designated by the Sponsor will, directly or indirectly, make cash equity contributions through Holdings (or through one or more
Parent Entities of Holdings to Holdings), the net proceeds of which will be further contributed, directly or indirectly, as cash equity
to Merger Sub in exchange for Capital Stock of Merger Sub; provided that any such equity contribution directly to Merger Sub in
a form other than common equity shall be reasonably satisfactory to the Lead Arrangers (the foregoing, collectively, the “Equity
Contribution”), in an aggregate amount equal to, when combined with the Fair Market Value of any Capital Stock of any of the
Rollover Investors rolled over or invested in connection with the Transactions, at least 40.0% of the sum of (1) the aggregate gross
proceeds of the Initial Term Loans and Revolving Credit Loans borrowed on the Closing Date, excluding the aggregate gross proceeds of
(A) any Initial Term Loans and Revolving Credit Loans, in either case borrowed to fund OID and/or upfront fees required to be funded
and (B) any Revolving Credit Loans borrowed to fund any ordinary course working capital needs and (2) the equity capitalization
of the Borrower and its Subsidiaries on the Closing Date, after giving effect to the Transactions and (b) after giving effect to
the Transactions on the Closing Date, the Sponsor will own indirectly at least a majority of the Capital Stock of Holdings;
WHEREAS, in connection with
the foregoing, the Borrower has requested that, immediately upon the satisfaction in full of the applicable conditions precedent set forth
in Section 6 below, the Lenders and Letter of Credit Issuers extend credit to the Borrower in the form of (i) $265,000,000 in
aggregate principal amount of Initial Term Loans to be borrowed on the Closing Date (the “Closing Date Term Loan Facility”)
and (ii) a revolving credit facility in an initial aggregate principal amount of $50,000,000 of Revolving Credit Commitments (the
“Revolving Credit Facility”);
WHEREAS, a portion of
the proceeds of the Initial Term Loans, the Initial Revolving Borrowing Amount and the Equity Contribution will be contributed as
equity and/or loaned, directly or indirectly, to Merger Sub II and, prior to the consummation of the Mergers, General Atlantic
(Amplify) HoldCo LLC, an equityholder of Amplify, will contribute 100% of the outstanding principal amount and accrued interest
under an intercompany loan to Amplify;
WHEREAS, a portion of the
proceeds of the Initial Term Loans and the Initial Revolving Borrowing Amount (to the extent permitted in accordance with the definition
of the term “Permitted Initial Revolving Credit Borrowing Purposes”), together with a portion of the Target’s and its
Subsidiaries’ cash on hand and the proceeds of the Equity Contribution, will be used to pay the Merger Consideration, the Existing
Debt Refinancing and the Transaction Expenses;
WHEREAS, the Lenders have
indicated their willingness to extend such credit and the Letter of Credit Issuers have indicated their willingness to issue Letters of
Credit, in each case on the terms and subject to the conditions set forth below;
WHEREAS, in connection with
the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit contemplated hereunder, the Borrower
has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority
lien (such priority subject to Liens permitted hereunder) on substantially all of its assets (except as otherwise set forth in the Credit
Documents), including a pledge of all of the Capital Stock of each of its Subsidiaries (other than any Excluded Capital Stock); and
WHEREAS, in connection with
the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit contemplated hereunder, each
Guarantor has agreed to guarantee all of its Obligations and to secure its guarantees by granting to the Collateral Agent, for the benefit
of the Secured Parties, a first priority lien (such priority subject to Liens permitted hereunder) on substantially all of its assets
(except as otherwise set forth in the Credit Documents), including a pledge of all of the Capital Stock of each of their respective Subsidiaries
(other than any Excluded Capital Stock).
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto
agree as follows:
SECTION 1. Definitions.
1.1 Defined
Terms. As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise
requires:
“2017 Contingent
Value Rights” shall have the meaning assigned to such term in the Acquisition Agreement.
“ABR”
shall mean, for any day, a fluctuating rate per annum equal to the highest of (a) the Prime Rate in effect for such day,
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%, (c) the Eurodollar Rate for a one month
Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00% and
(d) (i) solely with regard to the Initial Term Loans, 2.000.00%
and (ii) with regard to the Revolving Credit Loans, 0.00%. If the Administrative Agent shall have determined (which
determination should be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms
of the definition thereof, the ABR shall be determined without regard to clause (b) of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in the ABR due to a change in the Prime Rate, the Federal
Funds Effective Rate or the Eurodollar Rate shall be effective on the effective date of such change in the Prime Rate, the Federal
Funds Effective Rate or the Eurodollar Rate, as the case may be.
“ABR Loan”
shall mean each Loan bearing interest at the rate provided in Section 2.8(a) and, in any event, shall include all Swingline
Loans.
“Acceptable Reinvestment
Commitment” shall mean a binding commitment of the Borrower or any Restricted Subsidiary entered into at any time prior to the
end of the Reinvestment Period to reinvest the proceeds of an Asset Sale Prepayment Event or Recovery Prepayment Event.
“Accounting
Change” shall mean any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants, equivalent authorities
for IFRS, or, if applicable, the SEC.
“Acquired EBITDA”
shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such
period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Borrower and the Restricted Subsidiaries in
the definition of the term “Consolidated EBITDA” were references to such Pro Forma Entity and its subsidiaries that will become
Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.
“Acquired Entity
or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Acquisition”
shall mean any acquisition by the Borrower or any Restricted Subsidiary, whether by purchase, merger, consolidation, contribution or otherwise,
of (a) at least a majority of the assets or property and/or liabilities (or any other substantial part for which financial statements
or other financial information is available), or a business line, product line, unit or division of, any other Person, (b) Capital
Stock of any other Person such that such other Person becomes a Restricted Subsidiary and (c) additional Capital Stock of any Restricted
Subsidiary not then held by the Borrower or any Restricted Subsidiary.
“Acquisition Agreement”
means the Agreement and Plan of Merger, dated as of June 19, 2017, by and among Holdings, Merger Sub, Merger Sub II, General Atlantic
(Amplify) HoldCo LLC, Amplify, the Target, GA Escrow, LLC, a Delaware limited liability company, solely in its capacity as the seller
representative of the equityholders of Amplify and the Target, and JWF Rollover, LLC, a North Carolina limited liability company, solely
in its capacity as the representative of the equityholders of Amplify and the Target with respect to certain tax matters.
“Acquisition
Consideration” shall mean, in connection with any Acquisition, the aggregate amount (as valued at the Fair Market Value of
such Acquisition at the time such Acquisition is made) of, without duplication: (a) the purchase consideration paid or payable for
such Acquisition, whether payable at or prior to the consummation of such Acquisition or deferred for payment at any future time,
whether or not any such future payment is subject to the occurrence of any contingency, and including any and all payments
representing the purchase price and any assumptions of Indebtedness and/or Guarantee Obligations, “earn-outs” and other
agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent
upon the revenues, income, cash flow or profits (or the like) of any Person or business and
(b) the aggregate amount of Indebtedness Incurred in
connection with such Acquisition; provided in each case, that any such future payment that is subject to a contingency shall
be considered Acquisition Consideration only to the extent of the reserve, if any, required under GAAP (as determined at the time of
the consummation of such Acquisition) to be established in respect thereof by Holdings, the Borrower or its Restricted
Subsidiaries.
“acquired Person”
shall have the meaning provided in Section 10.1(k)(i)(E).
“Additional Lender” shall have the meaning provided
in Section 2.14(d).
“Additional/Replacement
Revolving Credit Commitment” shall have the meaning provided in Section 2.14(a).
“Additional/Replacement
Revolving Credit Facility” shall mean each Class of Additional/Replacement Revolving Credit Commitments made pursuant to
Section 2.14(a).
“Additional/Replacement
Revolving Credit Lender” shall mean, at any time, any Lender that has an Additional/Replacement Revolving Credit Commitment.
“Additional/Replacement
Revolving Credit Loans” shall mean any loan made to the Borrower under a Class of Additional/Replacement Revolving Credit
Commitments.
“Adjusted Total Additional/Replacement
Revolving Credit Commitment” shall mean, at any time, with respect to any Class of Additional/Replacement Revolving Credit
Commitments, the Total Additional/Replacement Revolving Credit Commitment for such Class less the aggregate Additional/Replacement
Revolving Credit Commitments of all Defaulting Lenders in such Class.
“Adjusted Total Extended
Revolving Credit Commitment” shall mean, at any time, with respect to any Class of Extended Revolving Credit Commitments,
the Total Extended Revolving Credit Commitment for such Class less the aggregate Extended Revolving Credit Commitments of
all Defaulting Lenders in such Class.
“Adjusted Total Revolving
Credit Commitment” shall mean, at any time, the Total Revolving Credit Commitment less the aggregate Revolving Credit Commitments
of all Defaulting Lenders.
“Administrative Agent”
shall mean UBS AG, Stamford Branch or any successor to UBS AG, Stamford Branch appointed in accordance with the provisions of Section 12.11,
together with its Affiliates that are appointed as sub-agents in accordance with Section 12.4, in each case, as the administrative
agent for the Lenders under this Agreement and the other Credit Documents.
“Administrative Agent’s
Office” shall mean the office and, as appropriate, the account of the Administrative Agent set forth on Schedule 13.2 or such
other office or account as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
“Affiliate”
shall mean, with respect to any specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified. The term “Control” shall mean 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 ownership
of Voting Stock, by agreement or otherwise. The terms “Controlling” and “Controlled” have meanings correlative
thereto.
“Affiliated Lender” shall mean a Non-Debt
Fund Affiliate or a Debt Fund Affiliate.
“Affiliated Lender
Assignment and Acceptance” shall have the meaning provided in Section 13.6(g)(i)(C).
“Agents” shall mean each of the Administrative
Agent and the Collateral Agent.
“Agreement” shall mean this Credit Agreement.
“AHYDO
Catch-Up Payment” shall mean any payment with respect to any obligations of the Borrower or any Restricted Subsidiary, in each
case to avoid the application of Section 163(e)(5) of the Code thereto.
“Amplify” shall mean General Atlantic
(Amplify) LLC, a Delaware limited liability company.
“Amplify Merger” shall have the meaning provided in the recitals
to this Agreement.
“Applicable
Laws” shall mean, as to any Person, any international, foreign, provincial, territorial, federal, state, municipal, and
local law (including common law and Environmental Laws), statute, regulation, by-law, ordinance, treaty, rule, order, code,
regulation, decree, guideline, judgment, consent decree, writ, injunction, settlement agreement, governmental requirement and
administrative or judicial precedents enacted, promulgated or imposed or entered into or agreed by any Governmental Authority, in
each case applicable to or binding on such Person or any of its property or assets or to which such Person or any of its property or
assets is subject.
“Applicable Margin”
shall mean (a) with respect to any Initial Term Loans 4.504.00%
for Eurodollar Loans and 3.503.00%
for ABR Loans and (b) with respect to the Revolving Credit Loans and Swingline Loans, the following percentages per annum, based
upon the Consolidated First Lien Debt to Consolidated EBITDA Ratio as set forth in the most recent certificate delivered to the Administrative
Agent pursuant to Section 9.1(d):
|
Pricing Level
|
|
Consolidated First Lien
Debt to Consolidated
EBITDA Ratio
|
|
Applicable Margin for
Revolving Credit Loans
that are Eurodollar
Loans
|
|
|
Applicable Margin for
Revolving Credit
Loans that are ABR Loans
and Swingline Loans
|
|
|
1
|
|
Greater than 4.75:1.00
|
|
|
4.504.00
|
%
|
|
|
3.503.00
|
%
|
|
2
|
|
Less than or equal to 4.75:1.00 but greater than 4.25:1.00
|
|
|
4.253.75
|
%
|
|
|
3.252.75
|
%
|
|
3
|
|
Less than or equal to 4.25:1.00
|
|
|
4.003.50
|
%
|
|
|
3.002.50
|
%
|
Notwithstanding
anything to the contrary in this definition, during the period from the Closing Date until the Initial Financial Statement Delivery
Date, the Applicable Margin for Initial Term Loans, Revolving Credit Loans and Swingline Loans shall be determined by reference to
the applicable “Pricing Level 1” set forth in the tables above. Any increase or decrease in the Applicable Margin for
Initial Term Loans, Revolving Credit Loans and Swingline Loans resulting from a change in the Consolidated First Lien Debt to
Consolidated EBITDA Ratio shall become effective as of the first Business Day immediately following the date the certificate
delivered pursuant to Section 9.1(d) is delivered to the Administrative Agent; provided that, at the option of the
Required Lenders, the highest pricing level (as set forth in the tables above) shall apply (a) as of the first Business Day
after the date on which Section 9.1 Financials were required to have been delivered but have not been delivered pursuant to
Section 9.1 and shall continue to so apply to and including the date on which such Section 9.1 Financials are so delivered
(and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (b) as of the first
Business Day after an Event of Default under Section 11.1 or Section 11.5 shall have occurred and be continuing and, in
the case of Section 11.1, the Administrative Agent has notified the Borrower that the highest pricing level applies, and shall
continue to so apply to but excluding the date on which such Event of Default shall cease to be continuing (and thereafter the
pricing level otherwise determined in accordance with this definition shall apply).
In the
event that the Administrative Agent and the Borrower determine that any Section 9.1 Financials previously delivered were
incorrect or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered),
and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for Initial Term Loans, Revolving
Credit Loans and/or Swingline Loans for any period (an “Applicable Period”) than the Applicable Margin for
Initial Term Loans, Revolving Credit Loans and/or Swingline Loans, as applicable, applied for such Applicable Period, then
(a) the Borrower shall as soon as practicable deliver to the Administrative Agent the correct Section 9.1 Financials for
such Applicable Period, (b) the Applicable Margin for Initial Term Loans, Revolving Credit Loans and/or Swingline Loans, as
applicable, shall be determined as if the pricing level for such higher Applicable Margin for Initial Term Loans, Revolving Credit
Loans and/or Swingline Loans, as applicable, was applicable for such Applicable Period, and (c) the Borrower shall within 10
Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional interest owing as
a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the
Administrative Agent in accordance with this Agreement. This paragraph shall not limit the rights of the Administrative Agent and
Lenders with respect to Section 2.8(c) and Section 11.
“Applicable Period” shall have the meaning
provided in the definition of the term “Applicable Margin”.
“Approved Foreign Bank”
shall have the meaning provided in the definition of the term “Cash Equivalents”.
“Approved Fund” shall have the meaning
provided in Section 13.6(b).
“Asset Sale Prepayment
Event” shall mean any Disposition (or series of related Dispositions) of any business unit, asset or property of the Borrower
or any Restricted Subsidiary (including any Disposition of any Capital Stock of any Subsidiary of the Borrower owned by the Borrower or
any Restricted Subsidiary); provided that the term “Asset Sale Prepayment Event” shall include only Dispositions (or
a series of related Dispositions) (including any Disposition of any Capital Stock of any Subsidiary of Holdings owned by the Borrower
or a Restricted Subsidiary) made pursuant to clauses (c), (d)(ii), (g), (j), (q), (r) and (t) of Section 10.4.
“Assignment and Acceptance”
shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required
by Section 13.6) substantially in the form of Exhibit H or such other form as shall be reasonably acceptable to the Borrower
and the Administrative Agent.
“Authorized Officer”
shall mean the Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer,
the Treasurer, any Manager, any Vice President, the Assistant Treasurer, with respect to certain limited liability companies or partnerships
that do not have officers, any manager, managing member, managing director, general partner or authorized signatory thereof, any other
senior officer of Holdings, the Borrower or any other Credit Party designated as such in writing to the Administrative Agent by Holdings,
the Borrower or any other Credit Party, as applicable, and, with respect to any document (other than the solvency certificate) delivered
on the Closing Date or any Incremental Facility Closing Date, the Secretary or the Assistant Secretary of any Credit Party, and, solely
for purposes of notices given pursuant to Sections 2, 3, 4 or 5, any other officers of the applicable Credit Party so designated by any
of the foregoing Persons in a notice to the Administrative Agent or any other officer of the applicable Credit Party designated in or
pursuant to an agreement between the applicable Credit Party and the Administrative Agent. Any document delivered hereunder that is signed
by an Authorized Officer shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company,
partnership and/or other action on the part of Holdings, the Borrower or any other Credit Party and such Authorized Officer shall be conclusively
presumed to have acted on behalf of such Person.
“Auto-Extension Letter of Credit” shall
have the meaning provided in Section 3.2(e).
“Available Amount”
shall mean, at any time (the “Available Amount Reference Time”) an amount equal at such time to (a) the sum (which
shall not be less than zero) of, without duplication:
(i) [reserved];
(ii) the
amount (which amount shall not be less than zero) equal to 50% of the Cumulative Consolidated Net Income of the Borrower and the Restricted
Subsidiaries,
(iii) the
amount (which amount shall not be less than zero) equal to 50% of the Deferred Revenues of the Borrower and the Restricted Subsidiaries,
(iv) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount of all Returns (to
the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary from any Investment to the extent
such Investment was made by using the Available Amount during the period from and including the Business Day immediately following
the Closing Date through and including the Available Amount Reference Time (other than the portion of any such dividends and other
distributions that is used by the Borrower or any Restricted Subsidiary to pay taxes related to such amounts);
(v) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount of all repayments made
in cash or Cash Equivalents of principal received by the Borrower or any Restricted Subsidiary from any Investment to the extent such
Investment was made by using the Available Amount during the period from and including the Business Day immediately following the Closing
Date through and including the Available Amount Reference Time in respect of loans made by the Borrower or any Restricted Subsidiary and
that constituted Investments;
(vi) to
the extent not already included in the calculation of Cumulative Consolidated Net Income or applied to prepay the Term Loans in accordance
with Section 5.2(a)(i) or to prepay, repurchase, redeem, defease, acquire or make any other similar payment on any Permitted
Additional Debt or on any Credit Agreement Refinancing Indebtedness, the aggregate amount of all Net Cash Proceeds received by the Borrower
or any Restricted Subsidiary in connection with the Disposition of its ownership interest in any Investment to any Person other than to
the Borrower or a Restricted Subsidiary and to the extent such Investment was made by using the Available Amount during the period from
and including the Business Day immediately following the Closing Date through and including the Available Amount Reference Time;
(vii) the
amount of any Investment of the Borrower or any of its Restricted Subsidiaries in any Unrestricted Subsidiary that has been
re-designated as a Restricted Subsidiary pursuant to Section 9.15 or that has been merged, amalgamated or consolidated with or
into the Borrower or any of its Restricted Subsidiaries pursuant to Section 10.3 or the amount of assets of an Unrestricted
Subsidiary Disposed of to the Borrower or a Restricted Subsidiary, in each case following the Closing Date and at or prior to the
Available Amount Reference Time, in each case, such amount not to exceed the lesser of (x) the Fair Market Value of the
Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary immediately prior to giving pro forma
effect to such re-designation or merger, amalgamation or consolidation or the Fair Market Value of the assets so Disposed of and
(y) the amount originally invested from the Available Amount by the Borrower and its Restricted Subsidiaries in such
Unrestricted Subsidiary (provided that, in the case of original investments made in cash, the Fair Market Value shall be such cash
value); and
(viii) the
aggregate amount of all Returns (to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary
on Investments made using the Available Amount during the period from and including the Business Day immediately following the Closing
Date through and including the Available Amount Reference Time;
minus
(b) the sum of, without duplication and without taking into account the proposed portion of the amount calculated above to be used
at the applicable Available Amount Reference Time:
(i) the
aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Amount pursuant to Section 10.5
after the Closing Date and prior to the Available Amount Reference Time;
(ii) the
aggregate amount of any Restricted Payments made by the Borrower using the Available Amount pursuant to Section 10.6(f) after
the Closing Date and prior to the Available Amount Reference Time; and
(iii) the
aggregate amount expended on prepayments, repurchases, redemptions, acquisitions, defeasements, and other similar payments made by the
Borrower or any Restricted Subsidiary using the Available Amount pursuant to Section 10.7(a) after the Closing Date and prior
to the Available Amount Reference Time.
“Available Amount Reference Time”
shall have the meaning provided in the definition of the term “Available Amount.”
“Available Equity Amount” shall
mean, at any time (the “Available Equity Amount Reference Time”) an amount (which shall not be less than zero) equal
to, without duplication:
(a) the
aggregate amount of cash and the Fair Market Value of marketable securities or other property, in each case, contributed to the capital
of the Borrower or the proceeds received by the Borrower from the issuance of any Capital Stock (or Incurrences of Indebtedness that have
been converted into or exchanged for Qualified Capital Stock), in each case during the period from and including the Business Day immediately
following the Closing Date through and including the Available Equity Amount Reference Time, but excluding (A) all proceeds from
the issuance of Disqualified Capital Stock, (B) any Excluded Contribution and (C) any Cure Amount; plus
(b) [reserved];
(c) the
Fair Market Value or, if the Fair Market Value of such Term Loans cannot be ascertained, the Fair Market Value shall be the purchase price
of such Term Loans (which shall not in any event be calculated in excess of par) of Term Loans contributed directly or indirectly by an
Investor or a Non-Debt Fund Affiliate to the Borrower during the period after the Closing Date through and including the Available Equity
Amount Reference Time; plus
(d) the
greater of (x) $25,000,000 and (y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period
most recently ended on or prior to any such Available Equity Amount Reference Time; plus
(e) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount (which amount shall not
be less than zero) of any Retained Asset Sale Proceeds retained by the Borrower and its Restricted Subsidiaries during the period after
the Closing Date through and including the Available Equity Amount Reference Time; plus
(f) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount (which amount shall not
be less than zero) of any Retained Refused Proceeds retained by the Borrower and its Restricted Subsidiaries during the period from and
including the Business Day immediately following the Closing Date through and including the Available Equity Amount Reference Time; plus
(g) the
aggregate amount of all Returns (to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary
on Investments made using the Available Equity Amount during the period from and including the Business Day immediately following the
Closing Date through and including the Available Equity Amount Reference Time;
minus
the sum, without duplication, and, without taking into account the proposed portion of the Available Equity Amount calculated above to
be used at the applicable Available Equity Amount Reference Time, of:
(i) the
aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Equity Amount pursuant to Section 10.5
after the Closing Date and prior to the Available Equity Amount Reference Time;
(ii) the
aggregate amount of any Restricted Payments made by the Borrower using the Available Equity Amount pursuant to Section 10.6(f) after
the Closing Date and prior to the Available Equity Amount Reference Time; and
(iii) the
aggregate amount of prepayments, repurchases, redemptions, defeasances, acquisitions and other similar payments, made by the
Borrower or any Restricted Subsidiary using the Available Equity Amount pursuant to Section 10.7(a) after the Closing Date
and prior to the Available Equity Amount Reference Time.
“Available Equity
Amount Reference Time” shall have the meaning provided in the definition of the term “Available Equity Amount.”
“Available Revolving
Credit Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total Revolving Credit Commitment
over (b) the sum of (i) the aggregate principal amount of all Revolving Credit Loans and Swingline Loans then outstanding and
(ii) the aggregate Letter of Credit Obligations at such time.
“Available RP Capacity
Amount” shall mean the amount of Restricted Payments that may be made at the time of determination pursuant to Sections 10.6(b),
(f), (l), (m), and (s) minus the sum of the amount of the Available RP Capacity Amount utilized by the Borrower or any Restricted
Subsidiary to (A) make Restricted Payments in reliance on Sections 10.6(b), (f), (l), (m), and (s) and (B) incur Indebtedness
pursuant to Section 10.1(w) utilizing the Available RP Capacity Amount.
“Bail-In Action”
shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability
of an EEA Financial Institution.
“Bail-In Legislation”
shall mean 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 for such EEA Member Country from time to time which is described in the EU
Bail-In Legislation Schedule.
“Bankruptcy Code”
shall mean the provisions of Title 11 of the United States Code, 11 USC §§ 101 et seq., as amended, or any similar federal or
state law for the relief of debtors.
“Basel III”
shall mean, collectively, those certain agreements on capital requirements, leverage ratios and liquidity standards contained in “Basel
III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International Framework for
Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National Authorities Operating the Countercyclical
Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to
time), and as implemented by a Lender’s primary U.S. federal banking regulatory authority or primary non-U.S. financial regulatory
authority, as applicable.
“Beneficial Owner”
shall mean, in the case of a Lender (including the Swingline Lender and each Letter of Credit Issuer), the beneficial owner of any amounts
payable under any Credit Document for U.S. federal withholding tax purposes.
“Benefited Lender” shall have the meaning
provided in Section 13.8(a).
“Board”
shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board of
Directors” shall mean, with respect to any Person, (i) in the case of any corporation, the board of directors of such
Person, (ii) in the case of any limited liability company, the board of managers of such Person, (iii) in the case of any
partnership, the Board of Directors of the general partner of such Person and (iv) in any other case, the functional equivalent
of the foregoing.
“Borrower”
shall have the meaning provided in the preamble to this Agreement and shall include any Successor Borrower, to the extent applicable.
“Borrower Materials” shall have the meaning
provided in Section 13.2.
“Borrowing”
shall mean and include (a) the Incurrence of Swingline Loans from the Swingline Lender on a given date (or swingline loans
under any Extended Revolving Credit Commitments of Additional/Replacement Revolving Credit Commitments from any swingline lender
thereunder on a given date), (b) the Incurrence of one Class and Type of Initial Term Loan on the Closing Date or, the
First Incremental
Agreement Effective Date or the Second Incremental Agreement Effective Date, as applicable (or resulting from conversions
on a given date after the Closing Date or, the
First Incremental Agreement Effective Date or
the Second Incremental Agreement Effective Date, as applicable) having, in the case of Eurodollar Loans, the same
Interest Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part of any
related Borrowing of Eurodollar Loans), (c) the Incurrence of one Class and Type of Incremental Term Loan on an Incremental
Facility Closing Date (or resulting from conversions on a given date after the applicable Incremental Facility Closing Date) having,
in the case of Eurodollar Loans, the same Interest Period (provided that ABR Loans Incurred pursuant to
Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans), (d) the Incurrence of one
Class and Type of Revolving Credit Loan on a given date (or resulting from conversions on a given date) having, in the case of
Eurodollar Loans, the same Interest Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be
considered part of any related Borrowing of Eurodollar Loans), (e) the Incurrence of one Class and Type of
Additional/Replacement Revolving Credit Loan on a given date (or resulting from conversions on a given date) having, in the case of
Eurodollar Loans, the same Interest Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be
considered part of any related Borrowing of Eurodollar Loans) and (f) the Incurrence of one Type of Extended Revolving Credit
Loan of a specified Class on a given date (or resulting from conversions on a given date) having, in the case of Eurodollar
Loans, the same Interest Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered
part of any related Borrowing of Eurodollar Loans).
“Business Day”
shall mean (a) any day excluding Saturday, Sunday and any day that shall be in The City of New York a legal holiday or a day on which
banking institutions are authorized by law or other governmental actions to close and (b) if the applicable Business Day relates
to any Eurodollar Loans, any day on which dealings in deposits in U.S. Dollars are carried on in the London interbank eurodollar market.
“Capital Expenditures”
shall mean, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities)
by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as
additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Borrower and the Restricted
Subsidiaries, (b) all Capitalized Software Expenditures and Capitalized Research and Development Costs during such period and (c) all
fixed asset additions financed through Financing Lease Obligations Incurred by the Borrower and the Restricted Subsidiaries and recorded
on the balance sheet in accordance with GAAP during such period; provided that the term “Capital Expenditures” shall
not include:
(i) expenditures
made in connection with the replacement, substitution, restoration or repair of assets to the extent financed from insurance proceeds
or compensation awards paid on account of a Recovery Event (except to the extent that such proceeds otherwise increase Consolidated Net
Income for purposes of calculating Excess Cash Flow for such period),
(ii) the
purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount
of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,
(iii) the
purchase of property, plant or equipment to the extent financed with the proceeds of Dispositions outside the ordinary course of business
(except to the extent that such proceeds otherwise increase Consolidated Net Income for purposes of calculating Excess Cash Flow for such
period),
(iv) expenditures that constitute any part of Consolidated Lease Expense,
(v) expenditures
that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are paid for, or
reimbursed, by a Person other than the Borrower or any Restricted Subsidiary and for which neither the Borrower nor any Restricted
Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person
or any other Person (whether before, during or after such period, it being understood, however, that only the amount of expenditures
actually provided or incurred by the Borrower or any Restricted Subsidiary in such period and not the amount required to be provided
or incurred in any future period shall constitute “Capital Expenditures” in the applicable period),
(vi) the
book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that such book
value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during
such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure
necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in which such expenditure
actually is made and (y) such book value shall have been included in Capital Expenditures when such asset was originally acquired,
(vii) any
expenditures made as payments of the consideration for an Acquisition (or other similar Investment) and expenditures made in connection
with the Transactions and any amounts recorded pursuant to purchase accounting required under GAAP pertaining to Acquisitions (or other
similar Investments) or the Transactions,
(viii) any
capitalized interest expense and internal costs reflected as additions to property, plant or equipment in the consolidated balance sheet
of the Borrower and the Restricted Subsidiaries or capitalized as Capitalized Software Expenditures and Capitalized Research and Development
Costs for such period, or
(ix) any
non-cash compensation or other non-cash costs reflected as additions to property, plant and equipment, Capitalized Software Expenditures
and Capitalized Research and Development Costs in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capital Stock”
shall mean 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 and including membership interests and partnership interests)
and, except to the extent constituting Indebtedness, any and all warrants, rights or options to purchase, acquire or exchange any of the
foregoing.
“Capitalized Research
and Development Costs” shall mean, for any period, all research and development costs that are, or are required to be, in accordance
with GAAP, reflected as capitalized costs on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capitalized Software
Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities)
by the Borrower and the Restricted Subsidiaries during such period in respect of purchased software or internally developed software and
software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries.
“Cash Collateral” shall have the meaning
provided in Section 3.8(c).
“Cash Collateralize” shall have the meaning provided in Section 3.8(c).
“Cash
Equivalents” shall mean:
(a) Dollars;
(b) Australian
Dollars, Canadian Dollars, Euros, Pounds Sterling or any national currency of any participating member state of the EMU;
(c) other
currencies held by the Borrower or the Restricted Subsidiaries from time to time in the ordinary course of business;
(d) securities
issued or unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof, in each case
having maturities of not more than 24 months from the date of acquisition thereof;
(e) securities
issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority of any
such state, commonwealth or territory or any public instrumentality thereof or any political subdivision or taxing authority of any such
state or commonwealth or territory or any public instrumentality thereof having maturities of not more than 24 months from the date of
acquisition thereof and, at the time of acquisition, having an Investment Grade Rating;
(f) commercial
paper or variable or fixed rate notes issued by or guaranteed by any Lender or any bank holding company owning any Lender;
(g) commercial
paper or variable or fixed rate notes maturing no more than 24 months from the date of acquisition thereof and, at the time of acquisition,
having an Investment Grade Rating;
(h) time
deposits with, or domestic and eurocurrency certificates of deposit, demand deposits or bankers’ acceptances maturing no more than
two years after the date of acquisition thereof and overnight bank deposits, in each case, issued by, any Lender or any other bank having
combined capital and surplus of not less than $100,000,000 (or the Dollar equivalent as of the date of determination);
(i) repurchase
obligations for underlying securities of the type described in clauses (d), (e) and (h) above entered into with any bank meeting
the qualifications specified in clause (h) above or securities dealers of recognized national standing;
(j) marketable
short-term money market and similar securities having a rating of at least A- 2 or P-2 from either S&P or Moody’s (or, if at
any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another Rating Agency);
(k) readily
marketable direct obligations issued by any non-U.S. government or any political subdivision or public instrumentality thereof, in each
case having an Investment Grade Rating with maturities of 24 months or less from the date of acquisition;
(l) Investments
with average maturities of no more than 24 months from the date of acquisition in money market funds rated AAA- (or the equivalent thereof)
or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P
shall be rating such obligations, an equivalent rating from another Rating Agency);
(m) with
respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains
its chief executive office and principal place of business; provided such country is a member of the Organization for Economic
Cooperation and Development, in each case maturing within 24 months after the date of acquisition thereof, (ii) certificates of deposit
of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in
which such Foreign Subsidiary maintains its chief executive office and principal place of business; provided such country is a
member of the Organization for Economic Cooperation and Development, and who otherwise meets the qualifications specified in clause (f) above
(any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from
the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
(n) Indebtedness
or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from
Moody’s (or, if at any time neither S&P or Moody’s shall be rating such obligations, an equivalent rating from
another Rating Agency) with maturities of 24 months or less from the date of acquisition;
(o) in
the case of investments by any Foreign Subsidiary or investments made in a country outside the United States of America, Cash Equivalents
shall also include (i) investments of the type and maturity described in clauses (a) through (n) above of foreign obligors,
which investments or obligors (or the parents of such obligors) have ratings, described in such clauses or equivalent ratings from comparable
foreign Rating Agencies and (ii) other short term investments utilized by Foreign Subsidiaries in accordance with normal investment
practices for cash management in investments analogous to the foregoing investments described in clauses (a) through (n) of
this paragraph; and
(p) investment
funds investing 90% of their assets in securities of the types described in clauses (a) through (o) above.
Notwithstanding the foregoing,
Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (a), (b) and (c) above;
provided that such amounts are converted into any currency or securities listed in clauses (a) through (d) as promptly
as practicable and in any event within ten (10) Business Days following the receipt of such amounts.
“Cash Management
Agreement” shall mean any agreement entered into from time to time by Holdings, the Borrower or any of the Restricted Subsidiaries
in connection with cash management services for collections, other Cash Management Services or for operating, payroll and trust accounts
of such Person, including automatic clearing house services, controlled disbursement services, electronic funds transfer services, information
reporting services, lockbox services, stop payment services and wire transfer services.
“Cash Management
Bank” shall mean any Person that is a Lender, Lead Arranger, Joint Bookrunner, Agent or any Affiliate of a Lender, Lead Arranger,
Joint Bookrunner or Agent at the time it provides any Cash Management Services or any Person that shall have become a Lender, an Agent
or an Affiliate of a Lender or an Agent at any time after it has provided any Cash Management Services.
“Cash Management
Obligations” shall mean obligations owed by Holdings, the Borrower or any Restricted Subsidiary to any Cash Management Bank
in connection with, or in respect of, any Cash Management Services.
“Cash Management
Services” shall mean (a) commercial credit cards, merchant card services, purchase or debit cards, including non-card e-payables
services, (b) treasury management services (including controlled disbursement, overdraft automatic clearing house fund transfer services,
return items and interstate depository network services) and (c) any other demand deposit or operating account relationships or other
cash management services, including under any Cash Management Agreements.
“CFC” shall mean
a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“Change in
Law” shall mean the occurrence, after the Closing Date, of any of the following: (a) the adoption of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration or interpretation thereof
by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having
the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in
connection therewith and (y) Basel III and all requests, rules, guidelines or directives thereunder or issued in connection
therewith, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” shall
mean and be deemed to have occurred if:
(a) (i) at
any time prior to a Qualifying IPO, (x) the Permitted Holders shall at any time cease, directly or indirectly, to have the
power to vote or direct the voting of at least 35% of the total voting power of the Voting Stock of Holdings (or, for the avoidance
of doubt, any New Holdings or Successor Holdings) or (y) the acquisition by (A) any Persons (other than any one or more
Permitted Holders) or (B) Persons (other than any one or more Permitted Holders) that are together a “group”
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (or any successor provision), but excluding
any employee benefit plan of such Person or “group” or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan), including any group acting for the purpose of acquiring, holding or Disposing of
Capital Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) (within the meaning of
Rule 13d-5(b)(1) under the Exchange Act (or any successor provision)) of a percentage of the total voting power of the
Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) that is greater than the
percentage of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor
Holdings) in the aggregate, directly or indirectly, beneficially owned by the Permitted Holders and/or (ii) at any time on and
after a Qualifying IPO, the acquisition by (A) any Person (other than any one or more Permitted Holders) or (B) Persons
(other than any one or more Permitted Holders) that are together a “group” (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act (or any successor provision), but excluding any employee benefit
plan of such Person or “group” or entity acting in its capacity as trustee, agent or other fiduciary or administrator of
any such plan), including any group acting for the purpose of acquiring, holding or Disposing of Capital Stock of Holdings (or, for
the avoidance of doubt, any New Holdings or Successor Holdings) (within the meaning of Rule 13d-5(b)(1) under the Exchange
Act (or any successor provision)) of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New
Holdings or Successor Holdings) having more than the greater of (A) 35% of the total voting power of the Voting Stock of
Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) and (B) the percentage of the total voting
power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) owned, directly or
indirectly, beneficially in the aggregate by the Permitted Holders, unless in the case of either clause (i) or (ii)
above, the Permitted Holders have, at such time, the right or the ability by voting power, contract, proxy or otherwise to elect,
appoint, nominate or designate at least a majority of the aggregate votes on the Board of Directors of Holdings (or, for the
avoidance of doubt, any New Holdings or Successor Holdings); and/or
(b) at
any time prior to a Qualifying IPO of the Borrower (or, for the avoidance of doubt, a Successor Borrower), the failure of Holdings (or,
for the avoidance of doubt, any New Holdings or Successor Holdings), directly or indirectly through wholly owned subsidiaries, to own
beneficially and of record, all of the Capital Stock of the Borrower; and/or
(c) a
“change of control” or any comparable event under, and as defined in any documentation governing any other First Lien Obligations
(other than any Cash Management Agreement or Hedging Agreement) shall have occurred.
Notwithstanding
the preceding or any provision of Rule 13d-3 of the Exchange Act (or any successor provision), (i) a Person or group shall not
be deemed to beneficially own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting
or option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement, (ii) if
any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of Holdings (or, for the avoidance of doubt,
any New Holdings or Successor Holdings) beneficially owned, directly or indirectly, by any Permitted Holders that are part of such group
shall not be treated as being beneficially owned by any other member of such group for purposes of determining whether a Change of Control
has occurred and (iii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of
its ownership of Voting Stock or other securities of such other Person’s Parent Entity (or related contractual rights) unless it
owns 50.0% or more of the total voting power of the Voting Stock of such Parent Entity. For purposes of this definition and any related
definition to the extent used for purposes of this definition, at any time when 50.0% or more of the total voting power of the Voting
Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) is directly or indirectly owned by a Parent
Entity, all references to Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) shall be deemed to refer to
its ultimate Parent Entity (but excluding any Investor) that directly or indirectly owns such Voting Stock.
“Class”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Credit Loans, Initial Term Loans, Incremental Term Loans (of a Class), Extended Term Loans (of the same Extension Series),
Extended Revolving Credit Loans (of the same Extension Series and any related swingline loans thereunder),
Additional/Replacement Revolving Credit Loans (of the same Class and any related swingline loans thereunder) or Swingline
Loans, and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, an Initial
Term Loan Commitment, an Incremental Term Loan Commitment (of the same Class), an Extended Revolving Credit Commitment (of the same
Extension Series and any related swingline commitment thereunder), an Additional/Replacement Revolving Credit Commitment (of
the same Class and any related swingline commitment thereunder) or a Swingline Commitment, and when used in reference to any
Lender, refers to whether such Lender has a Loan or Commitment of such Class.
“Claims” shall have meaning provided in
the definition of Environmental Claims.
“Closing Date” shall mean the date of
the initial Credit Event under this Agreement, which date is August 4, 2017.
“Closing Date Indebtedness”
shall mean Indebtedness outstanding on the date hereof and, to the extent in excess of $2,500,000, described on Schedule 10.1.
“Closing Date Term Loan Facility”
shall have the meaning provided for such term in the recitals to this Agreement.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time. Section references to the Code are to the Code, as in
effect on the Closing Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Collateral”
shall have the meaning provided for such term or a similar term in each of the Security Documents; provided that, with respect
to any Mortgages, “Collateral” shall mean “Mortgaged Property” as defined therein.
“Collateral Agent”
shall mean UBS AG, Stamford Branch or any successor thereto appointed in accordance with the provisions of Section 12.11, together
with any of its Affiliates, that is appointed as a sub-agent in accordance with Section 12.4, as the collateral agent for the Secured
Parties.
“Commitment”
shall mean, (a) with respect to each Lender (to the extent applicable), such Lender’s Initial Term Loan Commitment, Incremental
Term Loan Commitment, Revolving Credit Commitment, Extended Revolving Credit Commitment, Additional/Replacement Revolving Credit Commitment
or any combination thereof (as the context requires) and (b) with respect to the Swingline Lender, or swingline lender under any
Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments, its Swingline Commitment or swingline commitment,
as applicable.
“Commitment Fee” shall have the meaning
provided in Section 4.1(a).
“Commitment Fee Rate”
shall mean a rate equal to the following percentages per annum, based upon the Consolidated First Lien Debt to Consolidated EBITDA Ratio
as set forth in the most recent certificate delivered to the Administrative Agent pursuant to Section 9.1(d):
Pricing
Level
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Consolidated First Lien Debt to Consolidated
EBITDA Ratio
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Commitment
Fee Rate
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1
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Greater than 4.75:1.00
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0.50%
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2
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Less than or equal to 4.75:1.00 but greater than 4.25:1.00
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0.375%
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3
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Less than or equal to 4.25:1.00
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0.25%
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Notwithstanding anything to the contrary in this definition,
during the period from the Closing Date until the Initial Financial Statement Delivery Date, the Commitment Fee Rate shall be
determined by “Pricing Level 1” set forth in the table above. Any increase or decrease in the Commitment Fee Rate
resulting from a change in the Consolidated First Lien Debt to Consolidated EBITDA Ratio shall become effective as of the first
Business Day immediately following the date the certificate delivered pursuant to Section 9.1(d) is delivered to the
Administrative Agent; provided that, at the option of the Required Lenders, the highest pricing level (as set forth in the
table above) shall apply (a) as of the first Business Day after the date on which Section 9.1 Financials were required to
have been delivered but have not been delivered pursuant to Section 9.1 and shall continue to so apply to and including the
date on which such Section 9.1 Financials are so delivered (and thereafter the pricing level otherwise determined in accordance
with this definition shall apply) and (b) as of the first Business Day after an Event of Default under Section 11.1 or
Section 11.5 shall have occurred and be continuing and, in the case of Section 11.1, the Administrative Agent has notified
the Borrower that the highest pricing level applies, and shall continue to so apply to but excluding the date on which such Event of
Default shall cease to be continuing (and thereafter the pricing level otherwise determined in accordance with this definition shall
apply).
In the event that the Administrative
Agent and the Borrower determine that any Section 9.1 Financials previously delivered were incorrect or inaccurate (regardless of
whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would
have led to the application of a higher Commitment Fee Rate for any Applicable Period than the Commitment Fee Rate applied for such Applicable
Period, then (a) the Borrower shall as soon as practicable deliver to the Administrative Agent the correct Section 9.1 Financials
for such Applicable Period, (b) the Commitment Fee Rate shall be determined as if the pricing level for such higher Commitment Fee
Rate were applicable for such Applicable Period, and (c) the Borrower shall within 10 Business Days of demand thereof by the Administrative
Agent pay to the Administrative Agent the accrued additional interest owing as a result of such increased Commitment Fee Rate for such
Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement. This paragraph
shall not limit the rights of the Administrative Agent and Lenders with respect to Section 2.8(c) and Section 11.
“Commitment Letter”
shall mean the Credit Facilities Commitment Letter, dated as of June 19, 2017, among UBS AG, Stamford Branch, UBS Securities LLC,
SunTrust Bank, SunTrust Robinson Humphrey, Inc. and Holdings.
“Commodity Exchange
Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” shall have the meaning
provided in Section 13.2.
“Company Merger” shall have the meaning
provided in the recitals to this Agreement.
“Confidential Information” shall have the meaning provided in Section 13.16.
“Confidential Information
Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated July 2017, delivered to the prospective
lenders in connection with this Agreement.
“Consolidated Depreciation and Amortization
Expense” shall mean, with respect to any Person for any period, the total amount of depreciation and amortization expense, including
the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees and expenses, Capital Expenditures, including
Capitalized Software Expenditures, intangible assets established through recapitalization or purchase accounting, and the accretion or
amortization of OID resulting from the Incurrence of Indebtedness at less than par, of such Person for such period on a consolidated basis
and as determined in accordance with GAAP.
“Consolidated EBITDA” shall mean, for
any period, the Consolidated Net Income for such period, plus:
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(a)
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without duplication and to the extent already deducted or, in the case of clauses (vi) and (viii) below,
to the extent not included (and not added back or excluded) in arriving at such Consolidated Net Income, the sum of the following amounts
for such period:
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(i) provision
for taxes based on income or profits or capital, including, without limitation, federal, foreign, state, local, franchise, unitary, property,
excise, value added and similar taxes and foreign withholding taxes paid or accrued during such period (including taxes in respect of
expatriated or repatriated funds and any penalties and interest related to such taxes or arising from any tax examinations),
(ii) Consolidated
Interest Expense and, to the extent not reflected in such Consolidated Interest Expense, bank and letter of credit fees, debt rating monitoring
fees and net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk,
amortization of deferred financing fees, OID or costs, costs of surety bonds in connection with financing activities, together with items
excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (A) through (N) thereof,
(iii) Consolidated Depreciation and Amortization Expense,
(iv) the
amount of any restructuring charge, accrual or reserve or non-recurring (on a per-transaction basis) integration costs and related costs
and charges, including proposed or actual hiring and on-boarding of any senior level executives and any one-time (on a per- transaction
basis) costs or charges incurred in connection with Acquisitions and other Investments and costs, charges and expenses, including put
arrangements and headcount reductions or other similar actions including severance charges in respect of employee termination or relocation
costs, excess pension charges, severance and lease termination expenses and other expenses related to the closure, discontinuance, consolidation
and integration of locations, IT infrastructure, legal entities and/or facilities,
(v) any
other non-cash charges, including (A) all non-cash compensation expenses and costs, (B) the non-cash impact of recapitalization
or purchase accounting, (C) the non-cash impact of accounting changes or restatements, (D) any non-cash portion of Consolidated
Lease Expense and (E) other non-cash charges; provided that, to the extent that any such non-cash charges represent an accrual
or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted
from Consolidated EBITDA in such future period to such extent; and provided, further, that amortization of a prepaid cash
item that was paid in a prior period shall be excluded),
(vi) the
aggregate amount of Consolidated Net Income for such period attributable to non-controlling interests of third parties in any non Wholly-Owned
Subsidiary, excluding cash distributions in respect thereof to the extent already included in Consolidated Net Income,
(vii) the
amount of management, monitoring, consulting and advisory fees, termination payments, indemnities and related expenses paid or accrued
in such period to (or on behalf of) the Investors (including amortization thereof) and any directors’ fees or reimbursements (including
pursuant to any management agreement) in any such case to the extent otherwise permitted under Section 10.11 or to (or on behalf
of) Affiliates of the Target on or prior to the Closing Date (and following the Closing Date, with respect to indemnification or other
amounts owed in respect of arrangements in effect prior to the Closing Date),
(viii) (A) pro
forma adjustments, including pro forma “run rate” cost savings, operating expense reductions and other synergies related
to the Transactions projected by the Borrower in good faith to result from actions that have been taken, actions with respect to
which substantial steps have been taken or actions that are expected to be taken (in each case, in the good faith determination of
the Borrower), in any such case within eight fiscal quarters after the Closing Date (or, to the extent identified and reasonably
acceptable to the Lead Arrangers, undertaken or implemented prior to the Closing Date) and, without duplication and (B) pro
forma adjustments, including pro forma “run rate” cost savings, operating expense reductions, and other synergies
related to mergers, business combinations, Acquisitions and similar Investments, Dispositions and other similar transactions,
or related to restructuring initiatives, cost savings initiatives and other initiatives projected by the Borrower in good faith to
result from actions that have been taken, actions with respect to which substantial steps have been taken or actions that are
expected to be taken (in each case, in the good faith determination of the Borrower), in any such case, within eight fiscal quarters
after the date of consummation of such merger, business combination, Acquisition or similar Investment, Disposition or other similar
transaction or the initiation of such restructuring initiative, cost savings initiative or other initiative; provided
further, that, for the purpose of this clause (viii), (I) any such adjustments shall be added to Consolidated EBITDA for each
Test Period until fully realized and shall be calculated on a pro forma basis as though such adjustments had been realized on the
first day of the relevant Test Period and shall be calculated net of the amount of actual benefits realized from such actions,
(II) any such adjustments shall be reasonably identifiable and (III) no such adjustments shall be added pursuant to this
clause (viii) to the extent duplicative of any items related to adjustments included in the definition of Consolidated Net
Income, clause (iv) above or pursuant to the effects of Section 1.12 (it being understood that for purposes of the
foregoing and Section 1.12 “run rate” shall mean the full recurring benefit that is associated with any such
action),
(ix) Receivables
Fees and the amount of loss on Dispositions of receivables and related assets to the Receivables Subsidiary in connection with a Qualified
Receivables Facility,
(x) to
the extent funded with cash contributed to the capital of the Borrower or the Net Cash Proceeds of an issuance of Capital Stock of the
Borrower (other than Disqualified Capital Stock) solely to the extent that such Net Cash Proceeds are excluded from the calculation of
the Available Equity Amount, (A) any deductions, charges, costs or expenses (including compensation charges and expenses) incurred
by the Borrower or any Restricted Subsidiary pursuant to any management equity plan or share option plan or any other management or employee
benefit plan or agreement, pension plan, any severance agreement or any equity subscription or shareholder agreement or any distributor
equity plan or agreement or in connection with grants of stock appreciation or similar rights or other rights to directors, officers,
managers and/or employees of any Parent Entity, any Equityholding Vehicle, the Borrower or any of its Restricted Subsidiaries and (B) any
charges, costs, expenses accruals or reserves in connection with the rollover, acceleration or payout of Capital Stock held by directors,
officers, managers and/or employees of any Parent Entity, any Equityholding Vehicle, the Borrower or any of its Restricted Subsidiaries,
(xi) 100%
of the increase in Deferred Revenue as of the end of such period from Deferred Revenue as of the beginning of such period,
(xii) cash
receipts (or any netting arrangements resulting in reduced cash expenditures) not otherwise included in Consolidated EBITDA in any period
to the extent non- cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to paragraph
(b) below for any previous period and not added back,
(xiii) any
net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including
amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at
the date of initial application of Financial Accounting Standards Board’s Accounting Standards Codification No. 715, any non-cash
deemed finance charges in respect of any pension liabilities, the curtailment or modification of pension and post-retirement employee
benefit plans (including settlement of pension liabilities), and any other items of a similar nature,
(xiv) in
respect of any Hedging Obligations that are terminated (or early extinguished) prior to the stated settlement date, any loss (or
gain as applicable) reflected in Consolidated Net Income in or following the quarter in which such termination or early
extinguishment occurs,
(xv) all
adjustments, other than normalized adjustments, of the type that are described on page 41 of the Public Lenders Presentation dated
July 2017, to the extent such adjustments, without duplication, continue to be applicable to such period,
(xvi) costs,
expenses, charges, accruals, reserves (including restructuring costs related to acquisitions prior to, on or after the Closing Date) or
expenses attributable to the undertaking and/or the implementation of cost savings initiatives, operating expense reductions and other
restructuring and integration and transition costs, costs associated with inventory category and distribution optimization programs, pre-opening,
opening and other business optimization expenses (including software development costs), consolidation, discontinuance and closing costs
and expenses for locations and/or facilities, signing, retention and completion bonuses, costs related to entry and expansion into new
markets (including consulting fees) and to modifications to pension and post-retirement employee benefit plans, system design, establishment
and implementation costs and project start-up costs,
(xvii) adjustments consistent with Regulation S-X of the Securities Act,
(xviii) changes
in earn-out obligations incurred in connection with any Acquisition or other similar Investment permitted under this Agreement and paid
during the applicable period and any similar acquisitions completed prior to the Closing Date, and
(xix) costs
related to the implementation of operational and reporting systems and technology initiatives,
less
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(b)
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without duplication and to the extent included in arriving at such Consolidated Net Income,
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(i) any
non-cash gains, but excluding any non-cash gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash
items that reduced Consolidated EBITDA in any prior period, and
(ii) 100%
of the decrease in Deferred Revenue as of the end of such period from the Deferred Revenue as of the beginning of such period,
in each case, as determined on a consolidated
basis for the Borrower and the Restricted Subsidiaries in accordance with GAAP; provided that,
(I) there
shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property,
business or asset acquired by the Borrower or any Restricted Subsidiary during such period (other than any Unrestricted Subsidiary) to
the extent not subsequently sold, transferred or otherwise Disposed of during such period (but not including the Acquired EBITDA of any
related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired, including
pursuant to the Transactions or pursuant to a transaction consummated prior to the Closing Date, and not subsequently so Disposed of,
an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted
Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such
Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical
pro forma basis; and
(II) there
shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset sold,
transferred or otherwise Disposed of, closed or classified as discontinued operations by the Borrower or any Restricted Subsidiary to
the extent not subsequently reacquired, reclassified or continued, in each case, during such period (each such Person (other than an Unrestricted
Subsidiary), property, business or asset so sold, transferred or otherwise Disposed of, closed or classified, a “Sold Entity
or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during
such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such Sold Entity
or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer,
disposition, closure, classification or conversion) determined on a historical pro forma basis.
Notwithstanding anything to the contrary contained
herein and subject to adjustment as provided in clauses (I) and (II) of the immediately preceding proviso with respect to acquisitions
and Dispositions occurring prior to, on and following the Closing Date and, without any duplication of any adjustments already included
in the amounts below, other adjustments contemplated by Section 1.12, clauses (a)(i), (a)(viii), (a)(xv) and (a)(xvi) above,
Consolidated EBITDA shall be deemed to be $13,940,000, $12,635,000, $12,370,000 and $11,155,000, respectively, for the fiscal quarters
ended June 30, 2016, September 30, 2016, December 31, 2016 and March 31, 2017.
“Consolidated EBITDA to Consolidated Interest
Expense Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated EBITDA for the most recent Test
Period ended on or prior to such date of determination to (b) Consolidated Interest Expense for such period; provided that,
for purposes of calculating the Consolidated EBITDA to Consolidated Interest Expense Ratio for any period ending prior to the first anniversary
of the Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated 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.
“Consolidated First
Lien Debt” shall mean, without duplication, as of any date of determination, (a) the aggregate principal amount of all
Consolidated Total Debt (determined without regard to clause (b) of the definition thereof) outstanding hereunder as of such date
(but excluding the effects of any discounting of Indebtedness resulting from the application of recapitalization or purchase accounting
in connection with the Transactions, any Acquisition or other similar Investment) and all other Consolidated Total Debt (determined without
regard to clause (b) of the definition thereof) secured by Liens on the Collateral that do not rank junior in priority to the Liens
on the Collateral securing the Obligations minus (b) the aggregate amount of cash and Cash Equivalents on the consolidated
balance sheet of the Borrower and the Restricted Subsidiaries on such date, excluding cash and Cash Equivalents which are or should be
listed as “restricted” on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date.
It is understood that to the extent the Borrower or any Restricted Subsidiary Incurs any Indebtedness and receives the proceeds of such
Indebtedness, for purposes of determining any Incurrence test under this Agreement and whether the Borrower is in pro forma compliance
with any such test, the proceeds of such Incurrence shall not be considered cash or Cash Equivalents for purposes of any “netting”
pursuant to clause (b) of this definition.
“Consolidated First
Lien Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated First
Lien Debt as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated
EBITDA for such Test Period.
“Consolidated Interest
Expense” shall mean, with respect to any Person for any period, without duplication, the sum of:
(a) the
consolidated cash interest expense of such Person for such period, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of such Person, (including (i) all commissions, discounts and other cash fees and
charges owed with respect to letters of credit and bankers’ acceptance financing, (ii) the cash interest component of
Financing Lease Obligations, (iii) net cash payments, if any, made (less net cash payments, if any, received), pursuant to
obligations under Hedging Agreements for Indebtedness) and (iv) Restricted Payments on account of Disqualified Stock made
pursuant to Section 10.6(r), but in any event excluding, for the avoidance of doubt,
(A) accretion
or amortization of original issue discount resulting from the Incurrence of Indebtedness at less than par;
(B) amortization
of deferred financing costs, debt issuance costs, commissions, fees and expenses;
(C) any
accretion or accrual of, or accrued interest on discounted liabilities not constituting Indebtedness during such period and any prepayment,
redemption, repurchase, defeasance, acquisition or similar premium, penalty or inducement or other loss in connection with the early Refinancing
or modification of Indebtedness paid or payable during such period;
(D) any
interest in respect of items excluded from Indebtedness in the proviso to the definition thereof;
(E) penalties
or interest relating to taxes and any other amount of non-cash interest resulting from the effects of the acquisition method of accounting
or pushdown accounting;
(F) non-cash
interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedging Agreements or other derivative
instruments pursuant to Financial Accounting Standards Board’s Accounting Standards Codification No. 815 (Derivatives and
Hedging);
(G) any
one-time cash costs associated with breakage in respect of Hedging Agreements for interest rates and any payments with respect to make-whole
premiums or other breakage costs in respect of any Indebtedness;
(H) all
additional interest or liquidated damages then owing pursuant to any registration rights agreement and any comparable “additional
interest” or liquidated damages with respect to other securities designed to compensate the holders thereof for a failure to publicly
register such securities;
(I) any
expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or purchase
accounting;
(J) any
expensing of bridge, arrangement, structuring, commitment or other financing fees (excluding, for the avoidance of doubt, the Commitment
Fees);
(K) any
lease, rental or other expense in connection with Non-Financing Lease Obligations,
(L) Receivables
Fees, commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Facility,
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(M)
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any capitalized interest, whether paid in cash or otherwise; and
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(N) any
other non-cash interest expense, including capitalized interest, whether paid or accrued;
less
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(b)
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cash interest income of the Borrower and the Restricted Subsidiaries for such period.
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For purposes of this definition,
interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the
rate of interest implicit in such Financing Lease Obligation in accordance with GAAP.
“Consolidated Lease
Expense” shall mean, for any period, all rental expenses of any Person during such period in respect of Non-Financing Lease
Obligations for real or personal property (including in connection with Sale Leasebacks), but excluding real estate taxes, insurance costs
and common area maintenance charges and net of sublease income; provided that Consolidated Lease Expense shall not include (a) obligations
under vehicle leases entered into in the ordinary course of business, (b) all such rental expenses associated with assets acquired
pursuant to the Transactions and pursuant to an Acquisition (or other similar Investment) to the extent that such rental expenses relate
to Non-Financing Lease Obligations (i) in effect at the time of (and immediately prior to) such acquisition and (ii) related
to periods prior to such acquisition, (c) Financing Lease Obligations, all as determined on a consolidated basis in accordance with
GAAP and (d) the effects from applying purchase accounting.
“Consolidated Net
Income” shall mean, with respect to any Person for any period, the aggregate of the Net Income attributable to such Person for
such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without
duplication, and on an after-tax basis to the extent appropriate,
(a) any
extraordinary, unusual or nonrecurring gains, losses or expenses; costs associated with preparations for, and implementation of, compliance
with the requirements of the Sarbanes-Oxley Act of 2002 and other Public Company Costs; earn-out payments or other consideration paid
or payable in connection with an Acquisition to the extent recorded as cash expense; severance costs; relocation costs; integration costs;
pre-opening, opening, consolidation, discontinuation, integration and closing costs and expenses for locations, facilities, IT infrastructure
and for legal entities (including any legal entity restructuring); signing, retention and completion bonuses; transition costs; restructuring
costs; and litigation settlements, fines, judgments, orders or losses and related costs and expenses shall be excluded,
(b) the
Net Income for such period shall not include the cumulative effect of a change in accounting principles, including if reflected through
a restatement or retroactive application, during such period,
(c) any
net gains or losses realized on (i) Disposed of, discontinued or abandoned operations (which shall not, unless the Borrower otherwise
elects, include assets then held for sale), or (ii) the sale or other Disposition of any Capital Stock of any Person, shall be excluded,
(d) any
net gains or losses realized attributable to asset Dispositions, other than those in the ordinary course of business, as determined in
good faith by the Borrower, and Dispositions of books of business, client lists or related goodwill in connection with the departure of
related employees, shall be excluded,
(e) the
Net Income for such period of any Person that is not the Borrower or a Restricted Subsidiary of the Borrower, or that is accounted for
by the equity method of accounting, shall be excluded; provided that the Consolidated Net Income of the Borrower and its Restricted
Subsidiaries shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents
(or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) to the referent
Person or a Restricted Subsidiary thereof in respect of such period,
(f) solely
for the purpose of determining the amount available under clause (ii) of the definition of “Available Amount,” the
Net Income for such period of any Restricted Subsidiary (other than any Credit Party) shall be excluded to the extent the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of
determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is
otherwise restricted by the operation of the terms of its charter or any judgment, decree, order, statute, rule, or governmental
regulation applicable to that Restricted Subsidiary or its equityholders (other than: (i) restrictions that have been waived or
otherwise released, (ii) restrictions pursuant to this Agreement and (iii) restrictions arising pursuant to an agreement
or instrument if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially
less favorable to the Secured Parties than the encumbrances and restrictions contained in the Credit Documents (as determined by the
Borrower in good faith)) unless such restriction with respect to the payment of dividends or similar distributions has been legally
waived; provided that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other
distributions or other payments actually paid in cash or Cash Equivalents (or, if not paid in cash or Cash Equivalents, but later
converted into cash or Cash Equivalents, upon such conversion) to the Borrower or a Restricted Subsidiary thereof in respect of such
period, to the extent not already included therein,
(g) any
income (loss) (less all fees and expenses or charges related thereto) from the purchase, acquisition, early extinguishment, conversion
or cancellation of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off
and premiums paid) shall be excluded,
(h) any
impairment charge, asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible
assets (including goodwill), long-lived assets, Investments in debt and equity securities, the amortization of intangibles, and the
effects of adjustments to accruals and reserves during a prior period relating to any change in the methodology of calculating reserves
for returns, rebates, warranties, inventories and other chargebacks (including government program rebates), shall be excluded,
(i) any
(i) non-cash compensation expense as a result of grants of stock appreciation or similar rights, profits interests, stock options,
phantom equity, restricted stock or other rights or equity incentive programs and any non-cash charges associated with the rollover, acceleration
or payout of Capital Stock or options, phantom equity, profits interests or other rights with respect thereto by, or to, officers, directors,
employees or consultants of Holdings, the Borrower or any of the Restricted Subsidiaries, or any Parent Entity or Equityholding Vehicle,
(ii) income (loss) attributable to deferred compensation plans or trusts and (iii) any expense (including taxes) in respect
of payments made to option holders or holders of profits interests, phantom equity, restricted stock or restricted stock units of the
Borrower or any Parent Entity or Equityholding Vehicle in connection with, or as a result of, any distribution being made to equityholders
of the Borrower or any Parent Entity or Equityholding Vehicle, which payments are being made to compensate such option holders or holders
of profits interests, phantom equity, restricted stock or restricted stock units as though they were equityholders at the time of, and
entitled to share in, such distribution (to the extent such distribution to equityholders is excluded from Consolidated Net Income), shall
be excluded,
(j) any
fees and expenses (including any commissions or discounts) incurred during such period, or any amortization thereof for such period, in
connection with any Acquisition, Investment, asset Disposition, Change of Control, Incurrence, Refinancing, prepayment, redemption,
repurchase, acquisition, defeasance, extinguishment, retirement or repayment of Indebtedness, issuance of Capital Stock, or amendment,
supplement or other modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing
Date and any such transaction undertaken, but not completed and/or not successful) and any charges or non-recurring merger costs incurred
during such period as a result of any such transaction shall be excluded,
(k) accruals
and reserves that are established or adjusted as a result of the Transactions, or any Acquisition or Investment in accordance with GAAP,
(l) the
effects from applying purchase accounting, including applying recapitalization or purchase accounting to inventory, property and equipment,
software, goodwill and other intangible assets, in-process research and development, post-employment benefits, leases, Deferred Revenue
and debt-like items required or permitted by GAAP (including the effects of such adjustments pushed down to the Borrower or the
Restricted Subsidiaries), as a result of the Transactions or any other consummated Acquisition, or the amortization or write-off of any
amounts thereof, shall be excluded,
(m) any
foreign exchange gains or losses (whether or not realized) resulting from the impact of foreign currency changes on the valuation of assets
and liabilities on the consolidated balance sheet of the Borrower shall be excluded,
(n) any
non-cash interest expense and non-cash interest income, in each case to the extent there is no associated cash disbursement or receipt,
as the case may be, before the Latest Maturity Date, shall be excluded,
(o) the
amount of any cash tax benefits related to the tax amortization of intangible assets in such period shall be included,
(p) Transaction
Expenses (including any charges associated with the rollover, acceleration or payout of Capital Stock by management of the Target or any
of its Subsidiaries or Parent Entities in connection with the Transactions) shall be excluded,
(q) income
or expense related to changes in the fair value of contingent liabilities recorded in connection with the Transactions or any Acquisition
or other similar Investment shall be excluded,
(r) proceeds
received from business interruption insurance (to the extent not reflected as revenue or income in Net Income and to the extent that the
related loss was deducted in the determination of Net Income), shall be included,
(s) charges,
losses, lost profits, expenses or write-offs to the extent indemnified, reimbursed or insured by a third party, including expenses covered
by indemnification or reimbursement provisions in connection with the Transactions, an Acquisition or any other similar Investment, in
each case, to the extent that indemnification, reimbursement or insurance coverage has not been denied, the Borrower in good faith believes
that such amounts are recoverable from such indemnitors, reimbursers or insurers, and so long as such amounts are actually paid or reimbursed
to the Borrower or any of its Restricted Subsidiaries in cash or Cash Equivalents within one year after the related amount is first added
to Consolidated Net Income pursuant to this clause (s) (and if not so reimbursed within one year, such amount shall be deducted from
Consolidated Net Income during the next measurement period), shall be excluded; provided that such amounts shall only be included
in Consolidated Net Income under clause (ii) of the definition of “Available Amount” after such amounts are actually
reimbursed in cash,
(t) any
non-cash expenses, accruals, reserves or income related to adjustments to historical tax exposures shall be excluded; provided
that, if any such non-cash items represent an accrual or reserve for cash payments in any future period, the cash payment in respect thereof
in such future period shall be subtracted from Consolidated Net Income in such future period, but only to the extent of such non-cash
expense, accrual or reserve excluded pursuant to this clause (t),
(u) any
non-cash gain or loss attributable to the mark-to-market movement in the valuation of Hedging Obligations (to the extent the cash impact
resulting from such gain or loss has not been realized) or other derivative instruments pursuant to Financial Accounting Standards Board’s
Accounting Standards Codification No. 815-Derivatives and Hedging, shall be excluded,
(v) any
gain or loss relating to Hedging Obligations associated with transactions realized in the current period that has been reflected in Net
Income in prior periods and excluded from, or included in, as applicable, Consolidated Net Income pursuant to the preceding clause (u) shall
be included, and
(w) any
expense to the extent a corresponding amount is received in cash by the Borrower or any Restricted Subsidiaries from a Person other
than the Borrower or any Restricted Subsidiaries, provided such payment has not been included in determining Consolidated Net
Income (it being understood that if the amounts received in cash under any such agreement in any period exceed the amount of expense
in respect of such period, such excess amounts received may be carried forward and applied against expense in future periods).
“Consolidated Secured
Debt” shall mean, without duplication, as of any date of determination, (a) the aggregate principal amount of all Consolidated
Total Debt (determined without regard to clause (b) of the definition thereof) outstanding under this Agreement as of such date (but
excluding the effects of any discounting of Indebtedness resulting from the application of recapitalization or purchase accounting in
connection with any Acquisition or other similar Investment) and all other Consolidated Total Debt (determined without regard to clause
(b) of the definition thereof) secured by Liens on any assets or property of the Borrower or any Restricted Subsidiary minus
(b) the aggregate amount of cash and Cash Equivalents on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries
on such date, excluding cash and Cash Equivalents which are or should be listed as “restricted” on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries as of such date. It is understood that to the extent the Borrower or any Restricted
Subsidiary Incurs any Indebtedness and receives the proceeds of such Indebtedness, for purposes of determining any Incurrence test under
this Agreement and whether the Borrower is in pro forma compliance with any such test, the proceeds of such Incurrence shall not be considered
cash or Cash Equivalents for purposes of any “netting” pursuant to clause (b) of this definition.
“Consolidated Secured
Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Secured Debt
as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA for
such Test Period.
“Consolidated Total
Assets” shall mean, as of any date of determination, the total amount of all assets of the Borrower and the Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP as of such date.
“Consolidated Total Debt” shall
mean, as of any date of determination, (a) the aggregate principal amount of indebtedness of the Borrower and the Restricted Subsidiaries
outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of
indebtedness resulting from the application of purchase accounting in connection with any Acquisition or other similar Investment similar
to those made for Acquisition), consisting of third-party indebtedness for borrowed money, Unpaid Drawings, Financing Lease Obligations
and third-party debt obligations evidenced by promissory notes or similar instruments, minus (b) the aggregate amount of cash
and Cash Equivalents on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, excluding cash and
Cash Equivalents which are listed as “restricted” on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries
as of such date. It is understood that to the extent the Borrower or any Restricted Subsidiary Incurs any Indebtedness and receives the
proceeds of such Indebtedness, for purposes of determining any Incurrence test under this Agreement and whether the Borrower is in pro
forma compliance with any such test, the proceeds of such Incurrence shall not be considered cash or Cash Equivalents for purposes of
any “netting” pursuant to clause (b) of this definition.
“Consolidated Total
Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt
as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA for
such Test Period.
“Consolidated Working
Capital” shall mean, at any date, the excess of (a) the sum of all amounts (excluding all cash and Cash Equivalents)
that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a
consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date less (b) the sum of all amounts
that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption)
on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, including (for purposes of both
clauses (a) and (b)) current and long- term Deferred Revenue but excluding (for purposes of both clauses (a) and
(b) above, as applicable), without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness
(including Letter of Credit Obligations) under the Revolving Credit Facility, any Additional/Replacement Revolving Credit Facility,
any Extended Revolving Credit Facility or any other revolving credit facility that is effective in reliance on Section 10.1(u),
to the extent otherwise included therein, (iii) the current portion of interest, (iv) the current portion of current and
deferred income taxes, (v) non-cash compensation costs and expenses, (vi) any other liabilities that are not Indebtedness
and will not be settled in cash or Cash Equivalents during the next succeeding twelve month period after such date, (vii) the
effects from applying recapitalization or purchase accounting, (viii) any earn out obligations until 30 days after such
obligation becomes contractually due and payable and any earn-out obligation that becomes contractually due and payable to the
extent (A) such Person is indemnified for the payment thereof by a solvent Person reasonably acceptable to the Administrative
Agent or (B) amounts to be applied to the payment thereof are in escrow through customary arrangements and (ix) any asset
or liability in respect of net obligations of such Person in respect of Swap Contracts entered into in the ordinary course of
business; provided that Consolidated Working Capital shall be calculated without giving effect to (x) the depreciation
of the Dollar relative to other foreign currencies or (y) changes to Consolidated Working Capital resulting from non-cash
charges and credits to consolidated current assets and consolidated current liabilities (including, without limitation, derivatives
and deferred income tax); provided, further, that for purposes of calculating Excess Cash Flow, increases or decreases
in working capital shall exclude the impact of adjusting items in the definition of “Consolidated Net Income”.
“Contract Consideration” shall have
the meaning provided in the definition of the term “Excess Cash Flow.”
“Contractual Obligation”
shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking
to which such Person is a party or by which it or any of its property is bound other than the Obligations.
“Controlled Investment
Affiliate” shall mean, as to any Person, any other Person, other than any Investor, which directly or indirectly controls, is
controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily
for making direct or indirect equity or debt investments in the Borrower and/or other Person.
“Converted Restricted
Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Converted Unrestricted
Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Corrective Extension Agreement”
shall have the meaning provided in Section 2.15(f).
“Credit Agreement
Refinancing Indebtedness” shall mean (a) Permitted Equal Priority Refinancing Debt, (b) Permitted Junior
Priority Refinancing Debt or (c) Permitted Unsecured Refinancing Debt; provided that, in each case, such Indebtedness is
Incurred to Refinance, in whole or in part, existing Term Loans or existing Revolving Credit Loans (or unused Revolving Credit
Commitments), any then-existing Additional/Replacement Revolving Credit Loans (or unused Additional/Replacement Revolving Credit
Commitments), any then-existing Extended Revolving Credit Loans (or unused Extended Revolving Credit Commitments), or any Loans
under any then-existing Incremental Facility (or, if applicable, unused Commitments thereunder), or any then-existing Credit
Agreement Refinancing Indebtedness (“Refinanced Debt”); provided, further, that (i) except for
any of the following that are only applicable to periods after the Latest Maturity Date, the covenants, events of default and
guarantees of such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest rates),
interest margins, rate floors, fees, funding discounts, original issue discounts, maturity, currency denomination and prepayment or
redemption premiums and terms) (when taken as a whole) are determined by the Borrower to be either (A) consistent with market
terms and conditions and conditions at the time of Incurrence or effectiveness (as determined by the Borrower in good faith) or
(B) not materially more restrictive on the Borrower and the Restricted Subsidiaries than those applicable to the Refinanced
Debt, when taken as a whole (provided that if the documentation governing such Credit Agreement Refinancing Indebtedness
contains a Previously Absent Financial Maintenance Covenant, the Administrative Agent shall be given prompt written notice thereof
and this Agreement shall be amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit
Facility (provided, however, that if (x) both the Refinanced Debt and the related Credit Agreement Refinancing
Indebtedness that includes a Previously Absent Financial Maintenance Covenant consists of a revolving credit facility (whether or
not the documentation therefor includes any other facilities) and (y) the applicable Previously Absent Financial Maintenance
Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or a covenant
only applicable to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall
only be required to be included in this Agreement for the benefit of each revolving credit facility hereunder (and not for the
benefit of any term loan facility hereunder) and such Credit Agreement Refinancing Indebtedness shall not be deemed “more
restrictive” solely as a result of such Previously Absent Financial Maintenance Covenant benefiting only such revolving credit
facilities; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at
least five Business Days prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such
terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five
Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees), (ii) any such Indebtedness in the form of bonds, notes, loans or debentures or which Refinances, in whole or in
part, existing Term Loans, shall have a maturity that is no earlier than the earlier of the maturity of the Refinanced Debt and the
Latest Maturity Date and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt; provided that the
foregoing requirements of this clause (ii) shall not apply to the extent such Indebtedness constitutes a customary bridge
facility, so long as the long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged
satisfies the requirements of this clause (ii) and such conversion or exchange is subject only to conditions customary for
similar conversions or exchanges, (iii) any such Indebtedness which Refinances any existing Revolving Credit Loans (or unused
Revolving Credit Commitments), any then-existing Additional/Replacement Revolving Credit Loans (or unused Additional/Replacement
Revolving Credit Commitments) or any then-existing Extended Revolving Credit Loans (or unused Extended Revolving Credit Commitments)
shall have a maturity that is no earlier than the maturity of such Refinanced Debt and shall not require any mandatory commitment
reductions prior to the maturity of such Refinanced Debt; provided that the foregoing requirements of this clause
(iii) shall not apply to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term
Indebtedness into which any such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause
(iii) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges,
(iv) except to the extent otherwise permitted under this Agreement (subject to a dollar for dollar usage of any other basket
set forth in Section 10.1, if applicable), such Indebtedness shall not have a greater principal amount (or shall not have a
greater accreted value, if applicable) than the principal amount (or accreted value, if applicable) of the Refinanced Debt plus
unpaid accrued interest, fees and premiums (including tender premiums) (if any) thereon, defeasance costs, underwriting discounts
and fees and expenses (including OID, closing payments, upfront fees or similar fees) associated with the Refinancing plus an
amount equal to any existing commitments unutilized and letters of credit undrawn, (v) such Refinanced Debt shall be repaid,
repurchased, redeemed, defeased, acquired or satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees
and premiums (including tender premiums) (if any) in connection therewith shall be paid substantially concurrently with the date
such Credit Agreement Refinancing Indebtedness is Incurred or made effective, (vi) except to the extent otherwise permitted
hereunder, the aggregate unused revolving commitments under such Credit Agreement Refinancing Indebtedness shall not exceed the
unused Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments or Extended Revolving Credit Commitments,
as applicable, being replaced plus undrawn letters of credit, (vii) in the case of any such Indebtedness in the form of
bonds, notes, loans or debentures or which Refinances, in whole or in part, existing Term Loans, the terms thereof shall not require
any mandatory repayment, redemption, repurchase, acquisition or defeasance (other than (x) in the case of bonds, notes or
debentures, customary change of control, asset sale event or casualty, eminent domain or condemnation event offers, AHYDO Catch-Up
Payments and customary acceleration any time after an event of default and (y) in the case of any term loans, mandatory
prepayments that are on terms (when taken as a whole) not materially more favorable to the lenders or holders providing such
Indebtedness than those applicable to the Refinanced Debt (when taken as a whole) prior to the maturity date of the Refinanced Debt,
(viii) any Credit Agreement Refinancing Indebtedness may not be guaranteed by any Persons that do not guarantee the Obligations
and (ix) any Credit Agreement Refinancing Indebtedness may not be secured by any assets that do not secure the Obligations.
“Credit Documents” shall
mean this Agreement, the Security Documents, the Guarantee, the Fee Letter, each Letter of Credit, any promissory notes issued by
the Borrower hereunder, any Incremental Agreement, any Extension Agreement and any Customary Intercreditor Agreement entered into
after the Closing Date to which the Collateral Agent and/or the Administrative Agent is a party.
“Credit Event”
shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension
of a Letter of Credit.
“Credit Facility”
shall mean any of the Initial Term Loan Facility, any Incremental Term Loan Facility, the Revolving Credit Facility, any Additional/Replacement
Revolving Credit Facility, any Extended Term Loan Facility or any Extended Revolving Credit Facility, as applicable.
“Credit Party”
shall mean, collectively and/or, as applicable, individually, Holdings, the Borrower and each Subsidiary Guarantor.
“Cumulative Consolidated
Net Income” shall mean, as at any date of determination, Consolidated Net Income for the period (taken as one accounting period)
commencing on July 1, 2017 and ending on the last day of the most recent fiscal quarter for which Section 9.1 Financials have
been delivered.
“Cure Amount” shall have the meaning provided
in Section 11.11(a).
“Cure Deadline” shall have the meaning provided in Section 11.11(a).
“Cure
Right” shall have the meaning provided in Section 11.11(a).
“Customary Intercreditor
Agreement” shall mean (a) to the extent executed in connection with the Incurrence of secured Indebtedness Incurred by
a Credit Party, the Liens on the Collateral securing which are intended to rank equal in priority to the Liens on the Collateral securing
the Obligations (but without regard to the control of remedies), at the option of the Borrower and the Collateral Agent acting together
in good faith, either (i) any intercreditor agreement substantially in the form of the Equal Priority Intercreditor Agreement or
(ii) a customary intercreditor agreement in form and substance reasonably acceptable to the Collateral Agent and the Borrower, which
agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral
securing the Obligations (but without regard to the control of remedies) and (b) to the extent executed in connection with the Incurrence
of secured Indebtedness Incurred by a Credit Party, the Liens on the Collateral securing which are intended to rank junior in priority
to the Liens on the Collateral securing the Obligations, at the option of the Borrower and the Collateral Agent acting together in good
faith, either (i) an intercreditor agreement substantially in the form of the Junior Priority Intercreditor Agreement or (ii) a
customary intercreditor agreement in form and substance reasonably acceptable to the Collateral Agent and the Borrower, which agreement
shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral
securing the Obligations.
“Debt Fund Affiliate”
shall mean any Affiliate of the Borrower (other than Holdings, the Borrower or any Restricted Subsidiary of the Borrower) 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 or securities and that exercises investment discretion independent from the private equity
business of the Sponsor.
“Debt Incurrence
Prepayment Event” shall mean any Incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness, but excluding
any Indebtedness permitted to be Incurred under Section 10.1 (other than Incremental Term Loans Incurred in reliance on clause (i)(x) of
the proviso to Section 2.14(b), Permitted Additional Debt Incurred in reliance on Section 10.1(u)(i)(x) and, to the extent
relating to Term Loans, Credit Agreement Refinancing Indebtedness).
“Debt Surviving Company” shall have the
meaning provided in the recitals to this Agreement.
“Debtor Relief Laws”
shall mean the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect.
“Default”
shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulting Lender”
shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender
Default.”
“Deferred Blocker
Consideration” shall have the meaning assigned to such term in the Acquisition Agreement.
“Deferred Company
Consideration” shall have the meaning assigned to such term in the Acquisition Agreement.
“Deferred Revenue”
shall mean, at any date, the amount set forth opposite the caption “deferred revenue” (or any like caption or included in
any other caption, including current and non-current designations) on a consolidated balance sheet at such date; provided that
such balance should be determined excluding the effects of acquisition method accounting.
“Designated Non-Cash
Consideration” shall mean the Fair Market Value of consideration that is not deemed to be cash or Cash Equivalents and that
is received by the Borrower or its Restricted Subsidiaries in connection with a Disposition pursuant to Section 10.4(c) that
is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower delivered to the
Administrative Agent, setting forth the basis of such valuation (less the amount of the amount of cash or Cash Equivalents received in
connection with a subsequent Disposition, redemption or repurchase of, or collection or payment on, such Designated Non-Cash Consideration).
“Disposed EBITDA”
shall mean, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount for such period
of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower
and the Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” (and in the component financial definitions
used therein) were references to such Sold Entity or Business and its Subsidiaries or to such Converted Unrestricted Subsidiary and its
Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business.
“Disposition”
shall have the meaning provided in Section 10.4. The terms “Disposal”, “Dispose” and “Disposed
of” shall have correlative meanings.
“Disposition Percentage”
shall mean, with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event required to be applied pursuant to Section 5.2(a)(i),
the applicable percentage of Net Cash Proceeds required to be offered on any date of determination to prepay Term Loans.
“Disqualified
Capital Stock” shall mean, with respect to any Person, any Capital Stock of such Person that, by its terms (or by the
terms of any security or other Capital Stock into which it is convertible or for which it is putable or exchangeable) or upon the
happening of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock),
pursuant to a sinking fund obligation or otherwise, other than solely as a result of a change of control, asset sale event or
casualty, eminent domain or condemnation event so long as any rights of the holders thereof upon the occurrence of a change of
control, asset sale event or casualty, eminent domain or condemnation event shall be subject to the prior repayment in full of the
Loans and all other Obligations (other than Hedging Obligations under any Secured Hedging Agreement, Cash Management Obligations
under Secured Cash Management Agreements or contingent indemnification obligations and other contingent obligations not then due and
payable), (b) is redeemable or exchangeable at the option of the holder thereof (other than solely for Qualified Capital
Stock), other than as a result of a change of control, asset sale event or casualty, eminent domain or condemnation event so long as
any rights of the holders thereof upon the occurrence of a change of control, asset sale event or casualty, eminent domain or
condemnation event shall be subject to the prior repayment in full of the Loans and all other Obligations (other than Hedging
Obligations under any Secured Hedging Agreement, Cash Management Obligations under Secured Cash Management Agreements or contingent
indemnification obligations and other contingent obligations not then due and payable), in whole or in part, or (c) provides
for the scheduled payment of dividends in cash, in each case prior to the date that is ninety- one (91) days after the Latest
Maturity Date; provided that, if such Capital Stock is issued pursuant to any plan for the benefit of officers, directors,
employees or consultants of Holdings (or any Parent Entity thereof), the Borrower or any of its Subsidiaries or by any such plan to
such officers, directors, employees or consultants, such Capital Stock shall not constitute Disqualified Capital Stock solely
because it may be required to be repurchased by Holdings (or any Parent Entity thereof), the Borrower or any of its Subsidiaries in
order to satisfy applicable statutory or regulatory obligations or as a result of such officer’s, director’s,
employee’s or consultant’s termination, death or disability.
“Disqualified Lenders”
shall mean (a) such Persons that have been specified in writing to the Administrative Agent and the Lead Arrangers on or prior to
June 19, 2017 as being “Disqualified Lenders,” (b) those Persons who are competitors of the Borrower and its Subsidiaries
(including the Target, Amplify and their respective Subsidiaries) that are separately identified in writing by the Borrower from time
to time to the Administrative Agent and (c) in the case of each of clauses (a) and (b), any of their Affiliates (which, for
the avoidance of doubt, shall not include any bona fide debt investment funds that are Affiliates of the Persons referenced in clause
(b) above) that are either (i) identified in writing to the Administrative Agent by the Borrower from time to time or (ii) readily
identifiable on the basis of such Affiliate’s name as an Affiliate of such entity; provided that any Person that is a Lender
and subsequently becomes a Disqualified Lender (but was not a Disqualified Lender on the Closing Date or at the time it became a Lender)
shall not retroactively be deemed to be a Disqualified Lender hereunder. The identity of Disqualified Lenders may be communicated by the
Administrative Agent to a Lender upon request, but will not be otherwise posted or distributed to any Person by the Administrative Agent.
“Distressed Person”
shall have the meaning provided in the definition of “Lender-Related Distress Event.”
“Dollars,” “U.S.
Dollars” and “$” shall mean dollars in lawful currency of the United States of America.
“Domestic
Restricted Subsidiary” shall mean each Restricted Subsidiary of the Borrower that is a Domestic Subsidiary.
“Domestic Subsidiary”
shall mean each Subsidiary of the Borrower that is organized under the Applicable Laws of the United States, any state thereof, or the
District of Columbia.
“Drawing” shall have the meaning provided
in Section 3.4(b).
“EEA
Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country that
is subject to the supervision of an EEA Resolution Authority, (b) any Person established in an EEA Member Country that is a parent
of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member
Country that 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” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA
Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective
Yield” shall mean, as to any Indebtedness, the effective yield paid by the Borrower on such Indebtedness as determined by
the Borrower and the Administrative Agent in a manner consistent with generally accepted financial practices, taking into account
the applicable interest rate margins, any interest rate “floors” (the effect of which floors shall be determined in a
manner set forth in the proviso below and assuming that, if interest on such Indebtedness is calculated on the basis of a
floating rate, that the “Eurodollar Rate” or similar component of such formula is included in the calculation of
Effective Yield) or similar devices and all fees, including upfront or similar fees or OID (amortized over the shorter of
(x) the remaining Weighted Average Life to Maturity of such Indebtedness and (y) the four years following the date of
Incurrence thereof, and, if applicable, assuming any Additional/Replacement Revolving Credit Commitments were fully drawn) payable
generally by the Borrower to Lenders or other institutions providing such Indebtedness, but excluding any commitment fees,
arrangement fees, structuring fees, closing payments or other similar fees payable in connection therewith that are not generally
shared with all relevant Lenders (in their capacities as lenders) and, if applicable, ticking fees accruing prior to the funding of
such Indebtedness and customary consent or amendment fees for an amendment paid generally to consenting Lenders (and regardless of
whether any such fees are paid to, or shared in whole or in part with, any Lender); provided that, with respect to any
Indebtedness that includes a “floor”, (a) to the extent that the Reference Rate on the date that the Effective
Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin
for such Indebtedness for the purpose of calculating the Effective Yield and (b) to the extent that the Reference Rate on the
date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the
Effective Yield.
“Eligible Assignee”
shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (subject, in
each case, to such consents, if any, as may be required under Section 13.6(b)), other than, in each case, (i) a natural person,
(ii) a Defaulting Lender or (iii) a Disqualified Lender.
“Employee Investors” shall mean
the current, former or future officers, directors, managers and employees (and Controlled Investment Affiliates and Immediate Family Members
of the foregoing) of Holdings, the Borrower, the Restricted Subsidiaries or any Parent Entity who are or who become direct or indirect
investors in Holdings, any Parent Entity, any Equityholding Vehicle, or in the Borrower, including any such officers, directors, managers
or employees owning through an Equityholding Vehicle. For the avoidance of doubt, the Rollover Investors constitute Employee Investors.
“EMU” shall
mean the economic and monetary union as contemplated in the Treaty on European Union.
“Environment” shall mean
ambient air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata and natural
resources such as wetlands, flora and fauna.
“Environmental Claims”
shall mean any and all administrative, regulatory or judicial actions, suits, orders, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigations (other than internal reports prepared by the Borrower or any of its Subsidiaries (a) in
the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition
or disposition of real estate) or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereinafter, “Claims”), including (i) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental
Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the Release or threatened Release of Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the Environment.
“Environmental Law”
shall mean any applicable federal, state, provincial, territorial, foreign, municipal or local statute, law, rule, regulation, ordinance,
code, permit, binding agreement issued, promulgated or entered into by or with any Governmental Authority or rule of common law now
or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding
judicial or administrative order, consent decree or judgment, in each case relating to pollution or the protection of the Environment
including, those relating to generation, use, handling, storage, treatment, Release or threat of Release of Hazardous Materials or, to
the extent relating to exposure to Hazardous Materials, human health or safety.
“Equal Priority
Intercreditor Agreement” shall mean the Equal Priority Intercreditor Agreement substantially in the form of
Exhibit G-1 among (x) the Collateral Agent and (y) one or more representatives of the holders of one or more classes
of Permitted Additional Debt and/or Permitted Equal Priority Refinancing Debt, with any immaterial changes and material changes
thereto in light of the prevailing market conditions, which material changes shall be posted to the Lenders not less than five
Business Days before execution thereof and, if the Required Lenders shall not have objected to such changes within five Business
Days after posting, then the Required Lenders shall be deemed to have agreed that the Administrative Agent’s and/or Collateral
Agent’s entry into such intercreditor agreement (with such changes) is reasonable and to have consented to such intercreditor
agreement (with such changes) and to the Administrative Agent’s and/or Collateral Agent’s execution thereof.
“Equity Contribution” shall have the meaning
provided in the recitals to this Agreement.
“Equityholding Vehicle”
shall mean any Parent Entity and any equityholder thereof through which current, former or future officers, directors, employees, managers
or consultants of Holdings or the Borrower or any of their Subsidiaries or Parent Entity hold Capital Stock of such Parent Entity.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Section references to ERISA are to
ERISA as in effect on the Closing Date and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted
therefor.
“ERISA Affiliate”
shall mean each person (as defined in Section 3(9) of ERISA) that together with Holdings, the Borrower or a Restricted Subsidiary
thereof is treated as a “single employer” within the meaning of Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(b),
(c), (m) and (o) of the Code.
“Escrowed Proceeds”
shall mean the proceeds from the offering of any debt securities or other Indebtedness paid into an escrow account with an independent
escrow agent on the date of the applicable offering or incurrence pursuant to escrow arrangements that permit the release of amounts on
deposit in such escrow account upon satisfaction of certain conditions or the occurrence of certain events. The term “Escrowed Proceeds”
shall include any interest earned on the amounts held in escrow.
“EU
Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any
successor person), as in effect from time to time.
“Eurodollar Borrowing” shall mean each
Borrowing of a Eurodollar Loan.
“Eurodollar Loan”
shall mean any Loan bearing interest at a rate determined by reference to the Eurodollar Rate.
“Eurodollar Rate”
shall mean, (a) with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum equal to greater of
(i) (A) with regard to Initial Term Loans only, 1.000.00%
and (B) with regard to Revolving Credit Loans, 0.00% and (ii) the product of (A) the LIBOR in effect for such Interest
Period and (B) Statutory Reserves
Where,
“LIBOR”
shall mean, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of
the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently
being the LIBOR01 page) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period
in Dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such
Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service
or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on
such other page or other service which displays LIBOR for deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business
Days prior to the commencement of such Interest Period;
provided
that if LIBOR is quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period
elected, LIBOR shall be equal to the Interpolated Rate; and
“Statutory
Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative
Agent or any Lender (including any branch, Affiliate, or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities
(as defined in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation
D of the Board) and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that
may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
and (b) with respect to any ABR Loan, an interest rate per annum
equal to the LIBOR in effect for an Interest Period of one month
Where,
“LIBOR”
shall mean (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the
page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration
Limited (such page currently being the LIBOR01 page) for deposits in Dollars with a one-month term, determined as of
approximately 11:00 a.m. (London, England time), on the day of determination of such rate, or (ii) in the event the rate
referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease
to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service
which displays LIBOR for deposits in Dollars with a one-month term, determined as of approximately 11:00 a.m. (London, England
time) on the date of determination of such rate; provided that if LIBOR is quoted under either of the preceding clauses
(i) or (ii), but there is no such quotation for a one- month Interest Period, LIBOR shall be equal to the Interpolated
Rate.
“Event of Default” shall have the meaning
provided in Section 11.
“Excess Cash Flow” shall mean, for any
period, an amount equal to the excess of
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(a)
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the sum, without duplication, of:
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(i) Consolidated Net Income for such period;
(ii) an
amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income (provided
that, in each case, if any non-cash charge represents an accrual or reserve for cash items in any future period, the cash payment in respect
thereof in such future period shall be subtracted from Excess Cash Flow in such future period);
(iii) decreases
in Consolidated Working Capital and decreases in long-term accounts receivable, in each case as of the end of such period from the
Consolidated Working Capital and long-term accounts receivable as of the beginning of such period (except, in the case of each of
the foregoing, any such increases or decreases that are as a result of the reclassification of items from short-term to long-term or
vice versa) (other than any such decreases or increases, as applicable, arising from Acquisitions or Dispositions outside the
ordinary course of assets, business units or property by the Borrower or any of the Restricted
Subsidiaries completed during such period or the application of recapitalization or purchase accounting);
(iv) an
amount equal to the aggregate net non-cash loss on the Disposition of assets, business units or property by the Borrower and the Restricted
Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such
Consolidated Net Income;
(v) cash
payments received in respect of Hedging Agreements during such period to the extent not included in arriving at such Consolidated Net
Income; and
(vi) income
tax expense to the extent deducted in arriving at such Consolidated Net Income (net of any adjustments pursuant to clause (o) of
Consolidated Net Income for cash tax benefits related to the tax amortization of intangible assets in such period);
minus
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(b)
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the sum, without duplication, of:
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(i) an
amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (but excluding any non-cash credit
to the extent representing the reversal of an accrual or reserve described in clause (a)(ii) above) and cash charges included in
clauses (a) through (w) of the definition of the term “Consolidated Net Income”;
(ii) without
duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Capital Expenditures or acquisitions
of Intellectual Property made in cash or accrued during such period, except to the extent that such Capital Expenditures or acquisitions
of Intellectual Property were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making
of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary
course of business;
(iii) the
aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (A) the principal
component of payments in respect of Financing Lease Obligations, (B) all scheduled principal repayments of the Term Loans, Permitted
Additional Debt and Credit Agreement Refinancing Indebtedness, in each case to the extent such payments are permitted hereunder and actually
made and (C) the amount of any mandatory prepayment of Term Loans actually made pursuant to Section 5.2(a)(i) and any mandatory
redemption, repurchase, prepayment, defeasance, acquisition or similar payment of Permitted Additional Debt or Credit Agreement Refinancing
Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in each such case from the proceeds of any
Disposition and that resulted in an increase to Consolidated Net Income (and have not otherwise been excluded under clause (c) of
the definition thereof) and not in excess of the amount of such increase but excluding (1) all other prepayments, repurchases, defeasances,
acquisitions, redemptions and/or similar payments of Term Loans and (2) all prepayments of revolving credit loans and swingline loans
permitted hereunder made during such period (other than in respect of any revolving credit facility (other than in respect of (x) the
Revolving Credit Facility, any Extended Revolving Credit Facility or Additional/Replacement Revolving Credit Facility and (y) other
revolving loans that are effective in reliance on Section 10.1(a) or Section 10.1(u)) to the extent there is an equivalent
permanent reduction in commitments thereunder)), except to the extent financed by the Incurrence of long-term Indebtedness by, or the
issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the
proceeds of any Disposition outside the ordinary course of business;
(iv) an
amount equal to the aggregate net non-cash gain on the Disposition of property by the Borrower and the Restricted Subsidiaries during
such period (other than the Disposition of property in the ordinary course of business) to the extent included in arriving at such Consolidated
Net Income;
(v) increases
in Consolidated Working Capital and increases in long-term accounts receivable in each case as of the end of such period from the Consolidated
Working Capital and long-term accounts receivable as of the beginning of such period (except, in the case of each of the foregoing, any
such increases or decreases that are as a result of the reclassification of items from short-term to long-term or vice versa) (other than
any such increases or decreases, as applicable, arising from Acquisitions or Dispositions outside the ordinary course by the Borrower
and the Restricted Subsidiaries during such period or the application of recapitalization or purchase accounting);
(vi) cash
payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the
Restricted Subsidiaries other than Indebtedness, except to the extent that such payments were financed by the Incurrence of long-term
Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted
Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(vii) without
duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Investments made in cash (other
than Investments made pursuant to Sections 10.5(b), (f), (g), (h), (i), (n) and (s)) during such period, except to the extent that
such Investments were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital
contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course
of business;
(viii) without
duplication of amounts deducted pursuant to clause (xii) below, the amount of Restricted Payments (other than Restricted Investments)
paid in cash during such period, except to the extent that such Restricted Payments were financed by the Incurrence of long-term Indebtedness
by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries
or using the proceeds of any Disposition outside the ordinary course of business;
(ix) the
aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries in cash during such period (including expenditures
for the payment of financing fees) to the extent that such expenditures are not expensed during such period, except to the extent that
such expenditures were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of
capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary
course of business;
(x) the
aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries
during such period that are required to be made in connection with any prepayment, redemption, defeasance, acquisition, repurchase and/or
similar payment of Indebtedness, except to the extent that such payments were financed by the Incurrence of long-term Indebtedness by,
or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or
using the proceeds of any Disposition outside the ordinary course of business;
(xi) without
duplication of amounts deducted from Excess Cash Flow in other periods, (A) the aggregate consideration required to be paid in
cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period and (B) any planned cash expenditures by the Borrower or
any of the Restricted Subsidiaries (the “Planned Expenditures”) in the case of each of clauses (A) and (B),
relating to Acquisitions (or other similar Investments), Capital Expenditures (including Capitalized Software Expenditures) or
acquisitions of Intellectual Property to be consummated or made during the period of four consecutive fiscal quarters of the
Borrower following the end of such period (except to the extent financed by the Incurrence of long-term Indebtedness by, or the
issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using
the proceeds of any Disposition outside the ordinary course of business); provided that, to the extent that the aggregate
amount of cash actually utilized to finance such Acquisitions (or other similar Investments), Capital Expenditures (including
Capitalized Software Expenditures) or acquisitions of Intellectual Property during such following period of four consecutive fiscal
quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added to the
calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters;
(xii) without
duplication of any amounts deducted pursuant to clause (viii) above, the aggregate amount of all payments paid in cash by the Borrower
and the Restricted Subsidiaries during such period in connection with, or necessary to consummate, the Transactions;
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(xiii)
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income taxes, including penalties and interest, paid in cash in such period; and
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(xiv) cash
expenditures made in respect of Hedging Agreements during such period to the extent not deducted in arriving at such Consolidated Net
Income.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Rate”
shall mean on any day with respect to any currency (other than Dollars), the rate at which such currency may be exchanged into any other
currency (including Dollars), as set forth at approximately 11:00 a.m. (London time) on such day on the Bloomberg page or screen
for such currency. In the event that such rate does not appear on any Bloomberg page or screen, the Exchange Rate shall be determined
by reference to such other publicly available service for displaying exchange rates as may be agreed by the Administrative Agent and the
Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange
of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted,
at or about 11:00 a.m., local time, on such date for the purchase of the relevant currency for delivery two Business Days later.
“Excluded Capital Stock” shall mean:
(a) any
Capital Stock with respect to which, in the reasonable judgment of the Borrower and the Collateral Agent as agreed in writing, the cost
or other consequences (including any material adverse tax consequences) of pledging such Capital Stock shall be excessive in view of the
benefits to be obtained by the Secured Parties therefrom,
(b) solely
in the case of any pledge of Capital Stock of any Foreign Subsidiary or FSHCO to secure the Obligations, any Capital Stock that is Voting
Stock of such Foreign Subsidiary or FSHCO in excess of 65% of the outstanding Capital Stock that is Voting Stock of such Foreign Subsidiary
or FSHCO,
(c) any
Capital Stock to the extent, and for so long as, the pledge thereof would be prohibited by any Applicable Law (including financial assistance,
fraudulent conveyance, preference, thin capitalization, capital preservation or similar laws or regulations and any legally effective
requirement to obtain the consent of any Governmental Authority to such pledge unless such consent has been obtained),
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(d)
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any “margin stock” (as defined in Regulation U),
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(e) the
Capital Stock of any Person, other than any Wholly-Owned Restricted Subsidiary to the extent, and for so long as, the pledge of such Capital
Stock would be prohibited by the terms of any Contractual Obligation, Organizational Document, joint venture agreement or shareholders’
agreement applicable to such Person or legally effective Contractual Obligations or create an enforceable right of termination in favor
of any other party thereto (other than Holdings, the Borrower or any wholly owned Restricted Subsidiary of the Borrower),
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(f)
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the Capital Stock of any Subsidiary of a Foreign Subsidiary or any Subsidiary of a FSHCO,
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(g)
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the Capital Stock of any Unrestricted Subsidiary or of any Receivables Subsidiary, and
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(h) any
Capital Stock of any Subsidiary to the extent that the pledge of such Capital Stock would result in material adverse Tax consequences
to Holdings, the Borrower or any Subsidiary as reasonably determined by the Borrower in consultation with (but without the consent of)
the Collateral Agent.
“Excluded Contribution”
shall mean the Net Cash Proceeds, the Fair Market Value of marketable securities or the Qualified Proceeds, in each case received by the
Borrower from capital contributions to the common Capital Stock of the Borrower or sales or issuances of common Capital Stock of the Borrower
permitted hereunder, in each case, after the Closing Date (other than any amount to the extent used in the Cure Amount) and designated
by the Borrower to the Administrative Agent as an Excluded Contribution within 5 Business Days of the date such capital contributions
are made or the date the applicable Capital Stock is issued or sold.
“Excluded Property” shall have the meaning
provided in the Security Agreement.
“Excluded Subsidiary” shall mean:
(a) any
Subsidiary that is not a wholly owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant
to the requirements of Section 9.10 (for so long as such Subsidiary remains a non-wholly owned Subsidiary),
(b) any
Subsidiary that is prohibited by (x) Applicable Law (including financial assistance, fraudulent conveyance, preference, thin capitalization,
capital preservation or similar laws or regulations) or (y) Contractual Obligation from guaranteeing the Obligations (and for so
long as such restrictions or any replacement or renewal thereof is in effect); provided that in the case of clause (y), such Contractual
Obligation existed on the Closing Date or, with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary after the
Closing Date (and so long as such Contractual Obligation was not incurred in contemplation of such acquisition), on the date such Subsidiary
is so acquired,
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(c)
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any Domestic Subsidiary that is (i) a FSHCO or (ii) a direct or indirect Subsidiary of a CFC,
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(d) any
Immaterial Subsidiary (provided that the Borrower shall not be permitted to exclude Immaterial Subsidiaries from guaranteeing
the Obligations to the extent that (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries (other than
Unrestricted Subsidiaries) excluded by this clause (d) exceeds 10% of the consolidated gross revenues of the Borrower and its
Restricted Subsidiaries that are not otherwise Excluded Subsidiaries by virtue of any of the other clauses of this definition,
except for this clause (d), for the Test Period most recently ended on or prior to the date of determination or (ii) the
aggregate amount of total assets for all Immaterial Subsidiaries (other than Unrestricted Subsidiaries) excluded by this clause
(d) exceeds 10% of the aggregate amount of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries that are
not otherwise Excluded Subsidiaries by virtue of any other clauses of this definition, except for this clause (d), as at the end of
the Test Period most recently ended on or prior to the date of determination),
(e) any
other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower (confirmed in writing
by notice to the Borrower and the Collateral Agent), the cost or other consequences (including any material adverse Tax consequences)
of providing a guarantee shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom,
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(f)
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each Foreign Subsidiary and each Unrestricted Subsidiary,
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(g) each
other Restricted Subsidiary acquired pursuant to an Acquisition or other similar Investment and financed with secured Indebtedness Incurred
pursuant to Section 10.1(j) and the Liens securing which are permitted by Section 10.2(f) (and, for the avoidance
of doubt, not Incurred in contemplation of such Acquisition or other similar Investment), and each Restricted Subsidiary acquired in such
Acquisition or other similar Investment that guarantees such Indebtedness, in each case to the extent that, and for so long as, the documentation
relating to such Indebtedness to which such Restricted Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations,
(h) any
Subsidiary to the extent that the guarantee of the Obligations would result in material adverse tax consequences to the Borrower or any
Subsidiary as reasonably determined by the Borrower in consultation with (but without the consent of) the Administrative Agent, and confirmed
in writing by notice to the Borrower and the Collateral Agent,
(i) any
Subsidiary that would require any consent, approval, license or authorization from any Governmental Authority to provide a guarantee unless
such consent, approval, license or authorization has been received, or is received after commercially reasonable efforts by such Subsidiary
to obtain the same, which efforts may be requested by the Administrative Agent,
(j) any
not-for-profit Subsidiaries, Captive Insurance Companies, Receivables Subsidiary or other Special Purpose Subsidiaries designated in writing
by the Borrower from time to time to the Administrative Agent and the Collateral Agent, and
(k) any
Subsidiary that does not have the legal capacity to provide a guarantee of the Obligations (provided that the lack of such legal capacity
does not arise from any action or omission of Holdings or any other Credit Party).
“Excluded Swap
Obligation” shall mean, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a
portion of the guarantee of such Guarantor pursuant to the Guarantee of, or the grant by such Guarantor of a security interest to
secure, such Swap Obligation (or any guarantee pursuant to the Guarantee thereof) is or becomes illegal or unlawful 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) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract
participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving pro forma
effect to any applicable keep well, support, or other agreement for the benefit of such Guarantor and any and all applicable
guarantees of such Guarantor’s Swap Obligations by other Credit Parties), at the time the guarantee of (or grant of such
security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or
(ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity
Exchange Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity
Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would
become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap
Obligation” of such Guarantor as specified in any agreement between the relevant Credit Parties and Hedge Bank applicable to
such Swap Obligations. If a Swap Obligation arises under a Master Agreement governing more than one Swap, such exclusion shall apply
only to the portion of such Swap Obligation that is attributable to the Swap for which such guarantee or security interest is or
becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” shall have the meaning
provided in Section 5.4(a).
“Existing Class”
shall mean Existing Term Loan Classes and each Class of Existing Revolving Credit Commitments.
“Existing Credit
Agreement” shall mean that certain Credit Agreement, dated as of December 21, 2016 (as amended, supplemented or otherwise
modified from time to time prior to the Closing Date), by and among Wirepath Home Systems, LLC, Wirepath Home Systems Holdco LLC, the
lenders from time to time party thereto referred to therein, Antares Capital LP, as the administrative agent and collateral agent, and
the other parties thereto.
“Existing Debt Refinancing”
shall mean the repayment in full of all principal, accrued and unpaid interest, fees, premium, if any, and other amounts outstanding under
the Existing Credit Agreement, other than (i) contingent obligations not then due and payable and that by their terms survive the
termination of the Existing Credit Agreement and (ii) the Existing Letters of Credit, the termination of all commitments to extend
credit thereunder and the termination and/or release of any security interests and guarantees in connection therewith.
“Existing Letters of Credit” shall mean
all the letters of credit listed on Schedule 1.1(b).
“Existing Revolving Credit Class” shall have the meaning provided
in Section 2.15(b).
“Existing Revolving Credit Commitments” shall have the meaning provided in Section 2.15(b).
“Existing Revolving Credit Loans” shall have the meaning provided in Section 2.15(b).
“Existing Term
Loan Class” shall have the meaning provided in Section 2.15(a).
“Expected Cure Amount” shall have the
meaning provided in Section 11.11(b).
“Extended Loans/Commitments”
shall mean Extended Term Loans, Extended Revolving Credit Loans and/or Extended Revolving Credit Commitments.
“Extended Repayment Date” shall have the
meaning provided in Section 2.5(c).
“Extended Revolving Credit
Commitments” shall have the meaning provided in Section 2.15(b).
“Extended Revolving
Credit Facility” shall mean each Class of Extended Revolving Credit Commitments established pursuant to
Section 2.15(b).
“Extended Revolving Credit Loans” shall
have the meaning provided in Section 2.15(b).
“Extended Term Loan
Facility” shall mean each Class of Extended Term Loans made pursuant to Section 2.15.
“Extended Term Loan Repayment
Amount” shall have the meaning provided in Section 2.5(c).
“Extended Term Loans” shall have the meaning
provided in Section 2.15(a).
“Extending Lender”
shall have the meaning provided in Section 2.15(c).
“Extension Agreement” shall have the meaning provided in Section
2.15(d).
“Extension Date” shall have the meaning
provided in Section 2.15(e).
“Extension Election” shall have the meaning provided in Section 2.15(c).
“Extension Request”
shall mean Term Loan Extension Requests and Revolving Credit Extension Requests.
“Extension Series”
shall mean all Extended Term Loans or Extended Revolving Credit Commitments (as applicable) that are established pursuant to the same
Extension Agreement (or any subsequent Extension Agreement to the extent such Extension Agreement expressly provides that the Extended
Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any previously established
Extension Series) and that provide for the same interest margins, extension fees, if any, and amortization schedule.
“Fair Market Value”
shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale
of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and
arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as reasonably
determined by the Borrower.
“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (and any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices
pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (or any law
implementing such an intergovernmental agreement).
“FCPA” shall have the meaning provided
in Section 8.19.
“Federal Funds Effective
Rate” shall mean, 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.
“Fee Letter”
shall mean the Credit Facilities Fee Letter, dated as of June 19, 2017, among UBS AG, Stamford Branch, UBS Securities LLC, SunTrust
Bank, SunTrust Robinson Humphrey, Inc. and Holdings.
“Fees” shall mean all amounts payable
pursuant to or referred in Section 4.1.
“Financial Performance Covenant” shall
mean the covenant of the Borrower set forth in Section 10.10.
“Financial Performance Covenant Event of Default”
shall have the meaning provided in Section 11.3.
“Financing Lease Obligation” shall
mean, as applied to any Person, an obligation that is required to be accounted for as a financing or capital lease (and, for the
avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting
purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a
financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the
footnotes thereto) in accordance with GAAP.
“First Incremental
Agreement” shall mean that certain Incremental Agreement No. 1, dated as of February 5, 2018 among the Borrower, Holdings,
the other Guarantors, the Tranche B Term Lenders party thereto and the Administrative Agent.
“First Incremental Agreement Effective
Date” shall have the meaning provided in the First Incremental Agreement.
“First Lien Obligations”
shall mean the Obligations, any Permitted Additional Debt Obligations (other than any Permitted Additional Debt Obligations that are unsecured
or are secured by a Lien ranking junior to the Liens securing the Obligations (but without regard to control of remedies)) and any Permitted
Equal Priority Refinancing Debt and Indebtedness in respect of Term Loan Exchange Notes, collectively.
“Flood Documents” shall have the meaning
provided in Section 9.14(c)(i).
“Flood Hazard Property” shall have the meaning provided in Section 9.14(c)(i).
“Flood Insurance
Laws” shall mean, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National
Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto,
(b) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (c) the Biggert-Waters
Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Plan”
shall mean any pension plan maintained or contributed to by Holdings, the Borrower or any Restricted Subsidiary with respect to its respective
employees employed outside the United States.
“Foreign Restricted Subsidiary” shall
mean any Restricted Subsidiary that is not a Domestic Subsidiary.
“Foreign Subsidiary” shall mean each Subsidiary of
the Borrower that is not a Domestic Subsidiary.
“Fronting Fee” shall have the meaning provided in Section 4.1(b).
“FSHCO”
shall mean any direct or indirect Domestic Subsidiary that has no material assets other than Capital Stock (including any debt instrument
treated as equity for U.S. federal income tax purposes) or Indebtedness of one or more direct or indirect Foreign Subsidiaries that are
CFCs.
“Funded Debt”
shall mean all indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the
date of its creation or matures within one year from such date that is renewable or extendable, at the option of the Borrower or any such
Restricted Subsidiary, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the
Loans.
“GA Equityholders” shall mean General
Atlantic (Amplify) HoldCo LLC.
“GAAP”
shall mean generally accepted accounting principles in the United States of America, as in effect from time to time, subject to
Section 1.3(a). Notwithstanding the foregoing, at any time after adoption of IFRS by the Borrower for its financial statements
and reports for all financial reporting purposes, the Borrower may elect to apply IFRS for all purposes of this Agreement and the
other Credit Documents, in lieu of United States GAAP, and, upon any such election, references herein or in any other Credit
Document to GAAP shall be construed to mean IFRS as in effect from time to time; provided that (a) any such election
once made shall be irrevocable (and shall only be made once), (b) all financial statements and reports required to be provided
after such election pursuant to this Agreement shall be prepared on the basis of IFRS and (c) from and after such election, all
ratios, computations and other determinations (i) based on GAAP contained in this Agreement shall be computed in conformity
with IFRS and (ii) in this Agreement that require the application of GAAP for periods that include fiscal quarters ended prior
to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP; provided, further,
that in the event of any such election by the Borrower, any financial ratio calculations or thresholds (including the Financial
Maintenance Covenant) in this Agreement may be recalibrated to reflect the election to implement IFRS so long as (1) such
recalibration is limited to changes in the calculation of such thresholds or covenant levels due to the effect of differences
between GAAP and IFRS, (2) the recalibrated ratios and
calculations shall be mutually agreed between the Administrative Agent and the Borrower, unless the Required Lenders have given
notice of their objection to such recalibration within five Business Days of receiving notice thereof, and (3) any such
recalibration shall be done in a manner such that after giving effect to such recalibration, the recalibrated thresholds and
covenant levels shall be consistent with the intention of the respective thresholds and covenant levels calculated under GAAP prior
to such election. The Borrower shall give notice of any election to the Administrative Agent with 10 Business Days of such election.
For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated
as an incurrence of Indebtedness.
“Governmental Authority” shall
mean the government of the United States, any foreign country or any multinational authority, or any state, province, territory, municipality
or other political subdivision thereof, and any entity, body or authority exercising executive, legislative, judicial, taxing, regulatory
or administrative functions of or pertaining to government, including the PBGC and other quasi-governmental entities established to perform
such functions.
“Guarantee” shall mean the Guarantee,
dated as of the Closing Date, made by each Guarantor in favor of the Collateral Agent for the benefit of the Secured Parties, substantially
in the form of Exhibit A.
“Guarantee Obligations”
shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether
or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor
to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect
thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments
for deposit or collection 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 or disposition of assets permitted under this Agreement (other than with respect
to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of
the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Guarantors”
shall mean (a) Holdings, (b) each wholly owned Domestic Subsidiary of the Borrower that is Restricted Subsidiary (other than
an Excluded Subsidiary) on the Closing Date, (c) the Borrower (other than with respect to its own Obligations) and (d) each
Subsidiary of the Borrower that becomes a party to the Guarantee after the Closing Date pursuant to Section 9.10.
“Hazardous Materials”
shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers
or other equipment that contains dielectric fluid containing regulated levels of polychlorinated biphenyls, asbestos, asbestos-containing
materials, mold and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “waste,” “hazardous materials,” “extremely hazardous waste,”
“restricted hazardous waste,” “subject waste,” “toxic substances,” “toxic pollutants,”
“contaminants,” or “pollutants,” or words of similar import, under any Applicable Law pertaining to pollution
or the protection of the Environment; and (c) any other chemical, material or substance, which is prohibited, limited or regulated
by any Applicable Law pertaining to pollution or the protection of the Environment.
“Hedge
Bank” shall mean any Person that is a counterparty to a Hedging Agreement with a Credit Party or one of its Restricted
Subsidiaries, in its capacity as such, and that either (i) is a Lender, an Agent, a Lead Arranger, a Joint Bookrunner or an
Affiliate of a Lender, an Agent, a Lead Arranger or a Joint Bookrunner at the time it enters into such Hedging Agreement or
(ii) becomes a Lender, an Agent or an Affiliate of a Lender or an Agent after it has entered into such Hedging Agreement; provided
that no such Person (except an Agent) shall be considered a Hedge Bank until such time as it shall have delivered written notice to
the Collateral Agent that such a transaction has been entered into and that such Person constitutes a Hedge Bank entitled to the
benefits of the Security Documents. For purposes of the preceding sentence, a Person may deliver one notice confirming that it
constitutes a “Hedge Bank” with respect to all Hedging Agreements entered into pursuant to a specified Master Agreement.
For the avoidance of doubt, each Agent shall constitute a Hedge Bank to the extent it has entered into a Hedging Agreement.
“Hedging Agreement”
shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions,
cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter
into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form
of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Hedging Obligations”
shall mean, with respect to any Person, the obligations of such Person under Hedging Agreements.
“Historical Financial
Statements” shall mean (a) audited consolidated balance sheets of the Wirepath Home Systems Holdco LLC (or the predecessor
thereto) and its subsidiaries as at the end of, and related consolidated statements of operations, statement of members’ equity
and statement of cash flows of Wirepath Home Systems Holdco LLC (or the predecessor thereto) and its subsidiaries for, the fiscal years
ended December 31, 2015 and December 31, 2016 and (b) an unaudited consolidated balance sheet of Wirepath Home Systems
Holdco LLC (or the predecessor thereto) and its subsidiaries as of March 31, 2017, and the related consolidated statement of operations,
statement of members’ equity and statement of cash flows as of and for the three-month period ended March 31, 2017.
“Holdings” shall mean (i) Holdings
(as defined in the preamble to this Agreement) or (ii) at the election of the Borrower, any other Person or Persons (the “New
Holdings”) that is a Subsidiary of (or are Subsidiaries of) Holdings or of any Parent Entity of Holdings (or the previous New
Holdings, as the case may be) (the “Previous Holdings”) but not the Borrower; provided that (a) such New
Holdings directly or indirectly owns 100% of the Capital Stock of the Borrower, (b) the New Holdings shall expressly assume all the
obligations of the Previous Holdings under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in
form and substance reasonably satisfactory to the Administrative Agent, (c) the New Holdings shall have delivered to the Administrative
Agent a certificate of an Authorized Officer stating that such substitution and any supplements to the Credit Documents preserve the enforceability
of the Guarantee and the perfection and priority of the Liens under the Security Documents, (d) if reasonably requested by the Administrative
Agent, an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent shall be delivered by the Borrower
to the Administrative Agent to the effect that, without limitation, such substitution does not breach or result in a default under this
Agreement or any other Credit Document, (e) all Capital Stock of the Borrower and substantially all of the other assets of the Previous
Holdings are contributed or otherwise transferred to such New Holdings and pledged to secure the Obligations and (f) no Event of
Default has occurred and is continuing at the time of such substitution and such substitution does not result in any Event of Default
or material Tax liability; provided, further, that if each of the foregoing is satisfied, the Previous Holdings shall be
automatically released from all its obligations under the Credit Documents and any reference to “Holdings” in the Credit Documents
shall be meant to refer to the “New Holdings.”
“Immaterial
Subsidiary” shall mean, at any date of determination, any Restricted Subsidiary of the Borrower (a) whose total
assets (when combined with the assets of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany
obligations) at the last day of the Test Period most recently ended on or prior to such determination date were an amount equal to
or less than 5% of the Consolidated Total Assets of the Borrower and its Restricted Subsidiaries at such date and (b) whose
gross revenues (when combined with the revenues of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany
obligations) for such Test Period were an amount equal to or less than 5% of the consolidated gross revenues of the Borrower and its
Restricted Subsidiaries for such Test Period, in each case determined in accordance with GAAP.
“Immediate Family Members” shall
mean with respect to any individual, such individual’s estate, heirs, legatees, distributees, child, stepchild, grandchild or more
remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, niece, nephew, mother-in-law,
father-in-law, son-in- law, daughter-in-law, brother-in-law or sister-in-law (including adoptive relationships), any person sharing an
individual’s household (other than an unrelated tenant or employee) and any trust, partnership or other bona fide estate-planning
vehicle the only beneficiaries of which are any of the foregoing individuals 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 Agreement”
shall have the meaning provided in Section 2.14(e).
“Incremental Base
Amount” shall mean, as of any date of determination, (a) (x) the greater of $50,000,000 and (y) 100.0% of
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date
of determination (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such
date plus (b) the aggregate principal amount of
(i) Term Loans voluntarily prepaid prior to such date
pursuant to Section 5.1, (ii) the aggregate amount of cash consideration paid by any Purchasing Borrower Party to effect
any assignment to it of Term Loans pursuant to Section 13.6(g), but only to the extent that such Term Loans have been cancelled
and (iii) all permanent reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments,
Additional/Replacement Revolving Credit Commitments pursuant to Section 4.2 effected prior to such date (for the avoidance of
doubt, excluding any such commitment reductions required by the proviso to Section 2.14(b) or in connection with the
Incurrence of any Credit Agreement Refinancing Indebtedness Incurred to Refinance any Revolving Credit Commitments,
Additional/Replacement Revolving Credit Commitments and/or Extended Revolving Credit Commitments), in each case of this clause
(b) except to the extent financed by the Incurrence of long-term Indebtedness (including, for the avoidance of doubt, any such
Indebtedness Incurred under a revolving credit facility, Incurred as Permitted Additional Debt or otherwise Incurred under
Section 2.14) by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the
Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business.
“Incremental Commitments”
shall have the meaning provided in Section 2.14(a).
“Incremental Facilities” shall have the meaning provided in
Section 2.14(a).
“Incremental Facility Closing Date” shall have the meaning provided in Section 2.14(e).
“Incremental Limit” shall have the meaning provided in Section 2.14(b).
“Incremental Ratio Debt Amount”
shall have the meaning provided in Section 2.14(b) and Section 10.1(u).
“Incremental Revolving Credit Commitment
Increase” shall have the meaning provided in Section 2.14(a).
“Incremental Revolving Credit Commitment
Increase Lender” shall have the meaning provided in Section 2.14(f)(ii).
“Incremental Term Loan
Commitment” shall mean the Commitment of any Lender to make Incremental Term Loans of a particular Class pursuant to
Section 2.14(a).
“Incremental Term
Loan Facility” shall mean each Class of Incremental Term Loans made pursuant to Section 2.14.
“Incremental Term
Loan Maturity Date” shall mean, with respect to any Class of Incremental Term Loans made pursuant to Section 2.14,
the final maturity date thereof.
“Incremental Term Loans” shall have the
meaning provided in Section 2.14(a).
“Incur”
shall mean create, issue, assume, guarantee, incur or otherwise become directly or indirectly liable for any Indebtedness; provided,
however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such Person at the time it becomes a Restricted Subsidiary.
The term “Incurrence” when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance
with Section 10.1:
(a) amortization
of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security;
(b) the
payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled
dividends on Capital Stock in the form of additional Capital Stock of the same class and with the same terms; and
(c) the
obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of prepayment, redemption,
repurchase, defeasance, acquisition or similar payment or making of a mandatory offer to prepay, redeem, repurchase, defease, acquire
or similarly pay such Indebtedness;
will not be deemed to be the Incurrence of Indebtedness.
“Indebtedness”
shall mean, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness
or liabilities in accordance with GAAP:
(a) all
indebtedness of such Person for borrowed money and all indebtedness of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;
(b) the
maximum amount (after giving pro forma effect to any prior drawings or reductions which have been reimbursed) of all letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments
issued or created by or for the account of such Person;
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(c)
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net Hedging Obligations of such Person;
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(d) all
obligations of such Person to pay the deferred purchase price of property or services (other than (i) current trade or other ordinary
course payables or liabilities or accrued expenses (but not any refinancings, extensions, renewals, or replacements thereof) Incurred
in the ordinary course of business and maturing within 365 days after the Incurrence thereof except if such trade or other ordinary course
payables or liabilities or accrued expenses bear interest, (ii) any earn-out or similar obligation, unless such obligation has not
been paid within 30 days after becoming due and payable and becomes a liability on the balance sheet of such Person in accordance with
GAAP and (iii) obligations resulting from take-or-pay contracts entered into in the ordinary course of business);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development
bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
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(f)
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all Financing Lease Obligations;
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(g)
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all obligations of such Person in respect of Disqualified Capital Stock; and
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(h)
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all Guarantee Obligations of such Person in respect of any of the foregoing;
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provided that
Indebtedness shall not include (i) prepaid or Deferred Revenue arising in the ordinary course of business, (ii) purchase
price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy
warrants or other unperformed obligations of the seller of such asset, (iii) amounts owed to dissenting equityholders in
connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto (including any accrued interest), with respect to the Transactions or any other
Acquisition permitted under the Credit Documents, (iv) liabilities associated with customer prepayments and deposits and other
accrued obligations (including transfer pricing), in each case incurred in the ordinary course of business, (v) Non-Financing
Lease Obligations or other obligations under or in respect of straight-line leases, operating leases or Sale Leasebacks (except
resulting in Financing Lease Obligations), (vi) customary obligations under employment agreements and deferred compensation
arrangements, (vii) contingent post-closing purchase price adjustments, non-compete or consulting obligations or earn-outs to
which the seller in an Acquisition or Investment may become entitled and
(viii) Indebtedness of any Parent Entity appearing on the
balance sheet of the Borrower or any Restricted Subsidiary solely by reason of “pushdown” accounting under GAAP.
For all purposes hereof, the
Indebtedness of any Person shall (A) include the Indebtedness of any partnership or Joint Venture (other than a Joint Venture that
is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent
such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in
the calculation of Consolidated Total Debt of such Person and (B) in the case of Holdings, the Borrower and their Subsidiaries, exclude
all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the
ordinary course of business or consistent with past practice. The amount of any net Hedging Obligations on any date shall be deemed to
be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) above
shall, unless such Indebtedness has been assumed by such Person, be deemed to be equal to the lesser of (i) the aggregate unpaid
amount of such Indebtedness and (ii) the Fair Market Value of the property encumbered thereby as determined by such Person in good
faith.
“Indemnified Parties” shall have the meaning
provided in Section 13.5(a)(iii).
“Independent Financial
Advisor” shall mean an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses
of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has
been engaged.
“Initial Financial
Statement Delivery Date” shall mean the date on which Section 9.1 Financials are delivered to the Administrative Agent
under Section 9.1 for the first full fiscal quarterly or annual period of the Borrower completed after the Closing Date.
“Initial Revolving
Borrowing Amount” shall mean one or more Borrowings of Revolving Credit Loans on the Closing Date in an amount not to exceed
the aggregate amounts specified or referred to in the definition of the term “Permitted Initial Revolving Credit Borrowing Purposes”;
provided that, without limitation, Letters of Credit may be issued on the Closing Date to, among other things, backstop or replace
letters of credit outstanding immediately prior to the Closing Date under the Existing Credit Facility.
“Initial Term Loan”
shall mean (a) prior to the First Incremental Agreement Effective Date, the loans made on the Closing Date pursuant to Section 2.1(a) and,
(b) from and after the First Incremental Agreement Effective Date but prior to the Second
Incremental Agreement Effective Date, the Incremental Term Loans made on the First Incremental Agreement Effective Date pursuant to the
First Incremental Agreement and (c) from and after the Second Incremental Agreement Effective Date,
the Incremental Term Loans made on the Second Incremental Agreement Effective Date pursuant
to the Second Incremental Agreement.
“Initial Term
Loan Commitment” shall mean (a) in the case of each Lender that is a Lender on the Closing Date, the amount set forth
opposite such Lender’s name on Schedule 1.1(a) as such Lender’s “Initial Term Loan Commitment”,
(b) in the case of each Tranche B Term Lender, the amount of such Lender’s Incremental Term Loan Commitment under the
First Incremental Agreement (including, for the avoidance of doubt, the amount allocated to each Rollover Lender (as defined in the
First Incremental Agreement)) and, (c) in
the case of each Tranche C Term Lender, the amount of such Lender’s Incremental Term Loan Commitment under
the Second Incremental Agreement (including, for the avoidance of doubt, the amount allocated to each Rollover Lender
(as defined in the Second Incremental Agreement)) and (d)
in the case of any Lender that becomes a Lender after the Closing Date or, the
First Incremental
Agreement Effective Date or the Second Incremental
Agreement Effective Date, as applicable, the amount specified as such Lender’s “Initial Term Loan Commitment” in
the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each
case as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Initial Term Loan
Commitments as of the Closing Date was $265,000,000, and the aggregate amount of
the Initial Term Loan Commitments as of the First Incremental Agreement Effective Date is
$264,337,500 was $264,337,650 and the aggregate amount of the Initial Term Loan
Commitments as of the Second Incremental Agreement Effective Date is
$292,354,969.
“Initial Term
Loan Facility” shall mean (a) prior to the First Incremental Agreement Effective Date, the Closing Date Term Loan Facility and, (b) from
and after the First Incremental
Agreement Effective Date but prior to the Second Incremental Agreement Effective Date, the facility under which the
Tranche B Term Loans are made available on the First Incremental Agreement Effective Date pursuant to the First Incremental
Agreement. and
(c) from and after the Second Incremental Agreement Effective Date, the facility under which the Tranche C Term Loans are made
available on the Second Incremental Agreement Effective Date pursuant to the Second Incremental Agreement.
“Initial Term Loan Lender”
shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial Term Loan Maturity Date”
shall mean the seventh anniversary of the Closing Date, or if such anniversary of the Closing Date is not a Business Day, the Business
Day immediately following such anniversary.
“Initial Term Loan Repayment Amount” shall
have the meaning provided in Section 2.5(b).
“Initial Term Loan Repayment Date” shall have the meaning provided
in Section 2.5(b).
“Intellectual Property” shall have the meaning provided for such term in the Security Agreement.
“Intercompany Note”
shall mean the Intercompany Subordinated Note, dated as of the Closing Date, substantially in the form of Exhibit L hereto, executed
by Holdings, the Borrower and each other Restricted Subsidiary of the Borrower party thereto.
“Interest Period” shall mean,
with respect to any Eurodollar Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.
“Interpolated Rate” shall mean,
in relation to LIBOR, the rate which results from interpolating on a linear basis between:
(a) the
applicable LIBOR (as used in the definition of the term “Eurodollar Rate”) for the longest period (for which LIBOR is available)
which is less than the Interest Period of that Loan; and
(b) the
applicable LIBOR (as used in the definition of the term “Eurodollar Rate”) for the shortest period (for which LIBOR is available)
which exceeds the Interest Period of that Loan,
each as of approximately 11:00 a.m. (London,
England time) two Business Days prior to the commencement of such Interest Period of that Loan.
“Investment” shall mean, as
to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition
of Capital Stock or Indebtedness or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee
Obligation with respect to any obligation of, or purchase or other acquisition of any other Indebtedness or equity participation or interest
in, another Person, including any partnership or Joint Venture interest in such other Person, excluding, in the case of the Borrower and
its Restricted Subsidiaries, intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over
or extensions of terms) and made in the ordinary course of business or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of the property and assets or business of another Person or assets constituting a business unit, line of
business or division of such Person. The amount, as of any date of determination, of (i) any Investment in the form of a loan or
an advance shall be the principal amount thereof outstanding on such date, minus any payments in cash or Cash Equivalents actually
received by such investor representing interest in respect of such Investment, but without any adjustment for write- downs or write-offs
(including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (ii) any
Investment in the form of a guarantee shall be equal to the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof, as determined in good faith by an Authorized Officer of the Borrower, (iii) any Investment in the form of a transfer
of Capital Stock or other non-cash property or services by the investor to the investee, including any such transfer in the form of a
capital contribution, shall be the Fair Market Value of such Capital Stock or other property or services as of the time of the transfer,
minus any payments actually received by such investor representing a Return in respect of such Investment, but without any other
adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the
date of such Investment, and (iv) any Investment (other than any Investment referred to in clause (i), (ii) or (iii) above)
by the specified Person in the form of a purchase or other acquisition for value of any Capital Stock, evidences of Indebtedness or other
securities of any other Person shall be the original cost of such Investment, except that the amount of any Investment in the form of
an Acquisition shall be the Acquisition Consideration, minus (i) the amount of any portion of such Investment that has been repaid
to the investor as a Return in respect of such Investment (without duplication of amounts increasing the Available Amount or the Available
Equity Amount), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with
respect to, such Investment after the date of such Investment. For purposes of Section 10.5, if an Investment involves the acquisition
of more than one Person, the amount of such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided
that pending the final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably
determined by an Authorized Officer of the Borrower. For the avoidance of doubt, if the Borrower or any Restricted Subsidiary issues,
sells or otherwise Disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such
Person is no longer a Restricted Subsidiary, any Investment by the Borrower or any Restricted Subsidiary in such Person remaining after
giving effect thereto shall not be deemed to be a new Investment at such time.
“Investment Grade Rating”
shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P or an equivalent
rating by any other Rating Agency.
“Investment Grade
Securities” shall mean, (a) securities issued or directly and fully guaranteed or insured by the U.S. government or any
agency or instrumentality thereof (other than Cash Equivalents), (b) securities or debt instruments with an Investment Grade Rating,
but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries, (c) investments
in any fund that invests at least a 95% of its assets in investments of the type described in clauses (a) and (b) above, which
fund may also hold immaterial amounts of cash pending investment or distribution and (d) corresponding instruments in countries other
than the United States customarily utilized for high-quality investments.
“Investors” shall mean, collectively,
the Sponsor, the Rollover Investors and the other Employee Investors.
“ISP” shall
mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International
Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents”
shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement and instrument entered
into by a Letter of Credit Issuer and the Borrower (or any Restricted Subsidiary) or in favor of the Letter of Credit Issuer and relating
to such Letter of Credit.
“Joint Bookrunners”
shall mean UBS Securities LLC and SunTrust Robinson Humphrey, Inc., each in its capacity as joint bookrunner.
“Joint Venture”
shall mean a joint venture, partnership or similar arrangement, whether in corporate, partnership or other legal form.
“Junior Debt” shall mean any Subordinated
Indebtedness of any Credit Party.
“Junior Priority
Intercreditor Agreement” shall mean the Junior Priority Intercreditor Agreement substantially in the form of Exhibit G-2,
among (x) the Collateral Agent and (y) one or more representatives of the holders of Permitted Additional Debt and/or Permitted
Junior Priority Refinancing Debt, with any immaterial changes and material changes thereto in light of the prevailing market conditions,
which material changes shall be posted to the Lenders not less than five Business Days before execution thereof and, if the Required Lenders
shall not have objected to such changes within five Business Days after posting, then the Required Lenders shall be deemed to have agreed
that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement (with such changes) is reasonable
and to have consented to such intercreditor agreement (with such changes) and to the Administrative Agent’s and/or Collateral Agent’s
execution thereof.
“Latest Maturity
Date” shall mean, with respect to the Incurrence of any Indebtedness or the issuance of any Capital Stock, the latest Maturity
Date applicable to any Credit Facility that is outstanding hereunder as determined on the date such Indebtedness is Incurred or such Capital
Stock is issued.
“LCA Election” shall have the meaning
provided in Section 1.11.
“LCA Test Date” shall have the meaning provided in Section 1.11.
“Lead Arrangers”
shall mean UBS Securities LLC and SunTrust Robinson Humphrey, Inc., each in its capacity as lead arranger.
“Lender”
shall mean (a) the Persons listed on Schedule 1.1(a), (b) any other Person that shall become a party hereto as a “lender”
pursuant to Section 13.6 and (c) each Person that becomes a party hereto as a “lender” pursuant to the terms of
Section 2.14 (including, for the avoidance of doubt, the Tranche B Term Lenders under the First Incremental Agreement and
including, for the avoidance of doubt, the Tranche C Term Lenders under the Second Incremental Agreement), in each case other
than a Person who ceases to hold any outstanding Loans, Letter of Credit Exposure, Swingline Exposure or any Commitment.
“Lender
Default” shall mean (a) the refusal (in writing) or failure of any Revolving Credit Lender (which term, for purposes
of this definition, shall also include any Lender under an Additional/Replacement Revolving Credit Facility) to make available its
portion of any Incurrence of Revolving Credit Loans or participations in Letters of Credit or Swingline Loans, which refusal or
failure is not cured within one Business Day after the date of such refusal or failure, (b) the failure of any Revolving Credit
Lender to pay over to the Administrative Agent, any Letter of Credit Issuer, any Swingline Lender or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date when due, (c) the notification by a Revolving
Credit Lender to the Borrower, the Collateral Agent or the Administrative Agent that it does not intend or expect to comply with any
of its funding obligations or has made a public statement to that effect with respect to its funding obligations under this
Agreement, (d) the failure by a Revolving Credit Lender to confirm in a manner reasonably satisfactory to the Administrative
Agent that it will comply with its obligations under this Agreement, (e) the admission of a Distressed Person in writing that
it is insolvent or such Distressed Person becomes subject to a Lender-Related Distress Event or (f) any Lender has become the
subject of a Bail-In Action.
“Lender-Related Distress
Event” shall mean, with respect to any Revolving Credit Lender (which term, for purposes of this definition, shall also include
any Lender under an Additional/Replacement Revolving Credit Facility), that such Revolving Credit Lender or any person that directly or
indirectly controls such Revolving Credit Lender (each, a “Distressed Person”), as the case may be, is or becomes subject
to a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver
or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such
Distressed Person or any person that directly or indirectly controls such Distressed Person is subject to a forced liquidation or winding
up, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by
any governmental authority having regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt or no longer
viable, or if any governmental authority having regulatory authority over such Distressed Person has taken control of such Distressed
Person or has taken steps to do so; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by
virtue of the ownership or acquisition of any equity interests in any Revolving Credit Lender or any person that directly or indirectly
controls such Revolving Credit Lender by a governmental authority or an instrumentality thereof; provided, further, that
such ownership interest does not result in or provide such person with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such person (or such governmental authority or instrumentality)
to reject, repudiate, disavow or disaffirm any contract or agreements made by such person or its parent entity.
“Letter of Credit” shall have the meaning
provided in Section 3.1(a).
“Letter of Credit
Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed
on the date when made or refinanced as a Borrowing.
“Letter of Credit
Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the amount of any Unpaid Drawings in respect
of which such Lender has made (or is required to have made) Revolving Credit Loans pursuant to Section 3.4 at such time and (b) such
Lender’s Revolving Credit Commitment Percentage of the Letter of Credit Obligations at such time (excluding the portion thereof
consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) Revolving Credit Loans pursuant
to Section 3.4).
“Letter of Credit Fee” shall have the
meaning provided in Section 4.1(c).
“Letter of Credit
Issuer” shall mean (a) UBS AG, Stamford Branch, (b) SunTrust Bank and (c) any one or more Persons who shall become
a Letter of Credit Issuer pursuant to Section 3.6. Any Letter of Credit Issuer may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of Credit Issuer”
shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one
Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed
to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context
requires.
“Letter of Credit
Maturity Date” shall mean the date that is three Business Days prior to the Revolving Credit Maturity Date.
“Letter of Credit
Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters
of Credit plus the aggregate of all Unpaid Drawings, including all Letter of Credit Borrowings. For all purposes of this Agreement,
if on any date of determination a Letter of Credit has expired by its terms, but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining
available to be drawn.
“Letter of Credit Participant” shall have
the meaning provided in Section 3.3(a).
“Letter of Credit Participation” shall have the meaning provided in Section 3.3(a).
“Letter of Credit
Request” shall mean an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to
time in use by a Letter of Credit Issuer.
“Letter of Credit
Sub-Commitment” shall mean $15,000,000, as the same may be reduced from time to time pursuant to Section 4.2(b).
“Letter of Credit
Sub-Commitment Obligation” shall mean, in the case of each Letter of Credit Issuer that is a Letter of Credit Issuer on the
Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(a) as such Letter of Credit Issuer’s “Letter
of Credit Sub-Commitment Obligation”.
“Lien”
shall mean any mortgage, pledge, deed of trust, security interest, hypothecation, lien (statutory or other) or similar encumbrance and
any easement, right-of-way, restriction (including zoning restrictions), defect, exception or irregularity in title or similar charge
or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof); provided that in no event shall a Non-Financing Lease Obligation be deemed to be a Lien.
“Limited Condition
Acquisition” shall mean any Acquisition by the Borrower and/or one or more of its Restricted Subsidiaries permitted by this
Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan”
shall mean any Revolving Credit Loan, Additional/Replacement Revolving Credit Loan, Extended Revolving Credit Loan, Swingline Loan (including
any swingline loan pursuant to any Extended Revolving Credit Commitments or any Additional/Replacement Revolving Credit Commitments) or
Term Loan made by any Lender hereunder.
“Losses” shall have the meaning provided
in Section 13.5(a)(iii).
“Mandatory Borrowing” shall have the meaning
provided in Section 2.1(d)(ii).
“Market
Capitalization” shall mean an amount equal to (a) the total number of issued and outstanding shares of common Capital Stock
of the Borrower, Holdings or any Parent Entity on the date of the declaration of a Restricted Payment permitted pursuant to Section 10.6(m) 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 the date of declaration of such Restricted
Payment.
“Market Convention Rate”
shall have the meaning provided in Section 2.10(d).
“Master Agreement” shall have the meaning
provided in the definition of the term “Hedging Agreement.”
“Material Adverse
Effect” shall mean, except as provided in the proviso to Section 6.12, a circumstance or condition that would, individually
or in the aggregate, materially and adversely affect (a) the business, financial condition or results of operations of the Borrower
and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Credit Parties (taken as a whole) to perform their payment
obligations under the Credit Documents or (c) the rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders
under the Credit Documents.
“Material
Real Property” shall mean any parcel or parcels of Real Property owned in fee by any Credit Party, now or hereafter,
having a Fair Market Value (on a per property basis) of at least $5,000,000. For the purpose of determining the relevant value under
this Agreement with respect to the preceding clause, such value shall be determined as of (x) the Closing Date for Real
Property now owned, (y) the date of acquisition for Real Property acquired after the Closing Date or (z) the date on which
the entity owning such Real Property becomes a Credit Party after the Closing Date, in each case as determined in good faith by the
Borrower.
“Maturity Date”
shall mean, as to the applicable Loan or Commitment, the Initial Term Loan Maturity Date, any Incremental Term Loan Maturity Date, the
Revolving Credit Maturity Date, any maturity date related to any Class of Additional/Replacement Revolving Credit Commitments or
any maturity date related to any Class of Extended Term Loans or any Class of Extended Revolving Credit Commitments, as applicable.
“Maximum Tender Condition” shall have
the meaning provided in Section 2.17(d).
“Merger Consideration” shall have the meaning provided in the recitals
to this Agreement.
“Merger Sub” shall have the meaning provided in the recitals to this Agreement.
“Merger Sub II” shall have the meaning
provided in the recitals to this Agreement.
“Mergers” shall have the meaning provided in the recitals to this Agreement.
“MFN Exceptions” shall have the meaning provided in Section 2.14(c).
“MFN Protection” shall have the meaning
provided in Section 2.14(c).
“Minimum Borrowing
Amount” shall mean (a) with respect to a Borrowing of Term Loans, $5,000,000 (or such lesser amount as may be agreed by
the Administrative Agent or as may be required in order to accommodate Borrowings described under Section 2.14(b)) and (b) with
respect to a Borrowing of Revolving Credit Loans, $1,000,000 and (c) with respect to a Borrowing of Swingline Loans, $100,000.
“Minimum Tender Condition” shall have
the meaning provided in Section 2.17(d).
“Minority Investment”
shall mean any Person (other than a Subsidiary) in which the Borrower or any Restricted Subsidiary owns Capital Stock.
“Moody’s”
shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage”
shall mean a mortgage or a deed of trust, deed to secure debt, trust deed or other security document entered into by the owner of a Mortgaged
Property in favor of the Collateral Agent for the benefit of the Secured Parties creating a Lien on such Mortgaged Property, substantially
in such form as may be reasonably agreed between the Borrower and the Collateral Agent.
“Mortgaged Property”
shall mean (a) the Real Property identified on Schedule 1.1(c) and (b) all Real Property owned in fee with respect to which
a Mortgage is required to be granted pursuant to Section 9.14(b).
“Multiemployer Plan”
shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which Holdings, the Borrower, a Restricted Subsidiary
or an ERISA Affiliate contributes, has an obligation to contribute or had an obligation to contribute over the five preceding calendar
years.
“Necessary Cure Amount” shall have the
meaning provided in Section 11.11(b).
“Net Cash
Proceeds” shall mean, with respect to any Prepayment Event, Incurrence of Indebtedness, any issuance of Capital Stock
or any capital contribution or any Disposition of any Investment (including any Designated Non-Cash Consideration), (a) the
gross cash proceeds (including payments from time to time in respect of installment or earn-out obligations, if applicable, but only
as and when received and, with respect to any Recovery Event, any insurance proceeds, eminent domain awards or condemnation awards
in respect of such Recovery Event) received by or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such
Prepayment Event, Incurrence of Indebtedness, issuance of Capital Stock, receipt of a capital contribution or Disposition of
any Investment, less (b) the sum of:
(i) in
the case of any Prepayment Event or such Disposition, the amount, if any, of all Taxes paid or estimated to be payable by any Parent Entity,
the Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event or such Disposition (including withholding
taxes imposed on the repatriation or expatriation of any such Net Cash Proceeds),
(ii) in
the case of any Prepayment Event or such Disposition, the amount of any reasonable reserve established in accordance with GAAP against
any liabilities (other than any amounts deducted pursuant to clause (i) above) (x) associated with the assets that are the subject
of such Prepayment Event or such Disposition and (y) retained by the Borrower or any of the Restricted Subsidiaries, including any
pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification
obligations associated with such transaction; provided that the amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such Prepayment Event or such Disposition
occurring on the date of such reduction,
(iii) in
the case of any Prepayment Event or such Disposition, the amount of any principal amount, premium or penalty, if any, interest or other
amounts on any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event or such Disposition to the extent
that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment
Event or such Disposition and such Indebtedness is actually so repaid (other than Indebtedness outstanding under the Credit Documents
or otherwise subject to a Customary Intercreditor Agreement and any costs associated with the unwinding of any Hedging Obligations in
connection with such transaction),
(iv) in
the case of any Asset Sale Prepayment Event, the amount of any proceeds of such Asset Sale Prepayment Event that the Borrower or the applicable
Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment to reinvest,
within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section 9.13);
provided that:
(A) the
Borrower or the applicable Restricted Subsidiary shall comply with Sections 9.10, 9.11 and 9.14(b) with respect to such reinvestment
if applicable;
(B) any
portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment within the Reinvestment
Period shall (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event occurring on the later of (1) the last
day of the Reinvestment Period and (2) 180 days after the date that the Borrower or such Restricted Subsidiary shall have entered
into an Acceptable Reinvestment Commitment and (y) be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or
to the prepayment, repurchase, defeasance, acquisition, redemption or similar payment of any secured Permitted Additional Debt or secured
Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in any such
case to the extent permitted under Section 5.2(a)(i); and
(C) any
proceeds subject to an Acceptable Reinvestment Commitment that is (I) later canceled or terminated for any reason before such
proceeds are applied in accordance therewith or (II) not consummated (i.e., the reinvestment contemplated by such Acceptable
Reinvestment Commitment is not made) shall be applied to the prepayment of Term Loans in accordance with
Section 5.2(a)(i) or to the prepayment, repurchase, defeasance, acquisition, redemption or similar payment of any secured
Permitted Additional Debt or secured Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions of the
governing documentation thereof, in any such case to the extent permitted under Section 5.2(a)(i), unless the Borrower or the
applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment with respect to such proceeds prior to the
end of the Reinvestment Period,
(v) in
the case of any Recovery Prepayment Event, the amount of any proceeds of such Recovery Prepayment Event (x) that the Borrower or
the applicable Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment
to reinvest, within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section 9.13),
including for the repair, restoration or replacement of the asset or assets subject to such Recovery Prepayment Event, or (y) for
which the Borrower or the applicable Restricted Subsidiary has provided a Restoration Certification prior to the end of the Reinvestment
Period; provided that:
(A) the
Borrower or the applicable Restricted Subsidiary shall comply with Sections 9.10, 9.11 and 9.14(b) with respect to such reinvestment
if applicable;
(B) any
portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment or Restoration Certification
within the Reinvestment Period shall (x) be deemed to be Net Cash Proceeds of a Recovery Prepayment Event occurring on the later
of (1) the last day of the Reinvestment Period and (2) 180 days after the date that the Borrower or such Restricted Subsidiary
shall have entered into an Acceptable Reinvestment Commitment or shall have provided a Restoration Certification and (y) be applied
to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase, defeasance, acquisition,
redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement Refinancing Indebtedness pursuant to
the corresponding provisions of the governing documentation thereof, in any such case to the extent permitted under Section 5.2(a)(i);
and
(C) any
proceeds subject to an Acceptable Reinvestment Commitment or a Restoration Certification that is (I) later canceled or terminated
for any reason before such proceeds are applied in accordance therewith or (II) not consummated (i.e., the reinvestment, repair,
restoration or replacement contemplated by such Acceptable Reinvestment Commitment or Restoration Certification, as the case may be, is
not made) shall be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase,
defeasance, acquisition, redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement Refinancing
Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in each case to the extent permitted under
Section 5.2(a)(i), unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment
or provides another Restoration Certification with respect to such proceeds prior to the end of the Reinvestment Period,
(vi) in
the case of any Asset Sale Prepayment Event or Recovery Prepayment Event by any non-wholly owned Restricted Subsidiary, the pro rata
portion of the net cash proceeds thereof (calculated without regard to this clause (vi)) attributable to minority interests and not available
for distribution to or for the account of the Borrower or a wholly owned Restricted Subsidiary as a result thereof,
(vii) in
the case of any Prepayment Event, Incurrence of Indebtedness, Disposition, issuance of Capital Stock or receipt of a capital
contribution, the reasonable and customary fees, commissions, expenses (including attorney’s fees, investment banking fees,
survey costs, title insurance premiums and search and recording charges, transfer taxes, deed or mortgage recording taxes and other
customary expenses and brokerage, consultant and other customary fees or commissions), issuance costs, discounts and other costs and
expenses (and, in the case of the Incurrence of any Indebtedness the proceeds of which are required to be used to prepay any
Class of Loans and/or reduce any Class of Commitments under this Agreement, accrued interest and premium, if any, on such
Loans and any other amounts (other than principal) required to be paid in respect of such Loans and/or Commitments in connection
with any such prepayment and/or reduction), and payments made in order to obtain a necessary consent required by Applicable Law, in
each case only to the extent not already deducted in arriving at the amount referred to in clause (a) above, and
(viii) in
the case of any Asset Sale Prepayment Event or Disposition, any amounts funded into escrow established pursuant to the documents evidencing
any such Asset Sale Prepayment Event or Disposition to secure any indemnification obligations or adjustments to the purchase price associated
with any such Asset Sale Prepayment Event or Disposition until such amounts are released to the Borrower or a Restricted Subsidiary.
“Net Income”
shall mean, with respect to any Person, the net income (loss) attributable to such Person, determined on a consolidated basis in accordance
with GAAP and before any reduction in respect of dividends on preferred Capital Stock (other than dividends on Disqualified Capital Stock).
“New Holdings”
shall have the meaning provided in the definition of the term “Holdings”.
“Non-Consenting Lender” shall
have the meaning provided in Section 13.7(b).
“Non-Credit Party” shall mean any Person
that is not a Credit Party.
“Non-Credit Party Asset Sale” shall have
the meaning provided in Section 5.2(h).
“Non-Credit Party Recovery Event” shall have the meaning provided in Section 5.2(h).
“Non-Debt Fund Affiliate”
shall mean any Affiliate of the Borrower (other than Holdings, the Borrower or any Restricted Subsidiary of the Borrower) that is not
a Debt Fund Affiliate.
“Non-Defaulting Lender” shall mean and
include each Lender other than a Defaulting Lender.
“Non-Excluded Taxes” shall have the meaning provided in Section 5.4(a).
“Non-Extension Notice Date” shall have
the meaning provided in Section 3.2(e).
“Non-Financing Lease
Obligations” shall mean a lease obligation that is not required to be accounted for as a financing or capital lease on both
the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For avoidance of doubt, a straight-line
or operating lease shall be considered a Non- Financing Lease Obligation.
“Non-U.S. Lender” shall have the meaning
provided in Section 5.4(d).
“Note”
shall mean a Term Note or a Revolving Credit Note, in each case of the Borrower payable to any Lender or its registered assigns, evidencing
the aggregate amount of Indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender.
“Notice of Borrowing”
shall mean a request of the Borrower in accordance with the terms of Section 2.3 and substantially in the form of Exhibit D
or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Administrative Agent), appropriately completed and signed by an Authorized Officer of the Borrower.
“Notice of Conversion or Continuation”
shall have the meaning provided in Section 2.6(a).
“Notice Period” shall have the meaning provided in Section 2.10(d).
“Obligations” shall mean the collective
reference to:
(a) the
due and punctual payment of (i) the principal of and premium, if any, and interest at the applicable rate provided in this Agreement
(including interest accruing during the pendency of any proceeding under any applicable Debtor Relief Laws (or that would accrue but for
the operation of applicable Debtor Relief Laws), regardless of whether allowed or allowable in such proceeding) on the Loans, when and
as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required
to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon (including interest accruing during the pendency of any proceeding under any applicable
Debtor Relief Laws (or that would accrue but for the operation of applicable Debtor Relief Laws), regardless of whether allowed or allowable
in such proceeding) and obligations to provide Cash Collateral, and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any applicable proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding),
of the Borrower or any other Credit Party to any of the Secured Parties under this Agreement and the other Credit Documents,
(b) the
due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower under or pursuant to this Agreement
and the other Credit Documents,
(c) the
due and punctual payment and performance of all the covenants, agreements, obligations, and liabilities of each other Credit Party under
or pursuant to this Agreement or the other Credit Documents,
(d) the
due and punctual payment and performance of all Cash Management Obligations under each Secured Cash Management Agreement of a Credit Party
or any Restricted Subsidiary thereof, and
(e) the
due and punctual payment and performance of all Hedging Obligations under each Secured Hedging Agreement of a Credit Party or any Restricted
Subsidiary thereof (other than with respect to any such Credit Party’s Hedging Obligations that constitute Excluded Swap Obligations
with respect to such Credit Party).
Notwithstanding the foregoing,
(i) unless otherwise agreed to by the Borrower, the obligations of a Credit Party or any Restricted Subsidiary thereof under any
Secured Cash Management Agreement and Secured Hedging Agreement shall be secured and guaranteed pursuant to the Security Documents and
only to the extent that, and for so long as, the other Obligations are so secured and guaranteed, (ii) any release of Collateral
or Guarantors effected in the manner permitted by this Agreement and the other Credit Documents shall not require the consent of the holders
of the Cash Management Obligations under Secured Cash Management Agreements or the consent of the holders of the Hedging Obligations under
Secured Hedging Agreements and (iii) Obligations shall in no event include any Excluded Swap Obligations.
“OFAC” shall have
the meaning provided in Section 8.20(a).
“OID” shall mean original issue discount.
“Organizational Documents”
shall mean (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate
or articles of formation or organization and operating agreement and (c) with respect to any partnership, Joint Venture, trust or
other form of business entity, the partnership, Joint Venture or other applicable agreement of formation or organization and, if applicable,
any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation
or organization of such entity.
“Other Taxes” shall have the meaning provided
in Section 5.4(b).
“Overnight Rate”
shall mean, for any day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate determined by the Administrative
Agent, the applicable Letter of Credit Issuer or the Swingline Lender, as the case may be, in accordance with banking industry rules on
interbank compensation.
“Parent Entity”
shall mean any Person that is a direct or indirect parent company (which may be organized as, among other things, a partnership) of Holdings
and/or the Borrower, as applicable. For the avoidance of doubt, any Person that is formed to effect a public offering of common Capital
Stock that directly or indirectly owns a majority of the Voting Stock of Holdings will be deemed a Parent Entity of Holdings.
“Participant” shall have the meaning provided
in Section 13.6(d)(i).
“Participant Register” shall have the meaning provided in Section 13.6(d)(ii).
“PATRIOT
ACT” shall have the meaning provided in Section 8.21.
“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Pension Plan”
shall mean any “employee pension benefit plan” (as defined in Section 3(2) of ERISA, other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA that is sponsored, maintained
or contributed to by Holdings, the Borrower, a Restricted Subsidiary or an ERISA Affiliate or, solely with respect to representations
and covenants that relate to liability under Section 4069 of ERISA, that was so maintained and in respect of which the Borrower,
any Restricted Subsidiary or ERISA Affiliate would have liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
“Perfection Certificate”
shall mean a certificate in the form of Exhibit M or any other form approved by the Collateral Agent in its reasonable discretion.
“Permitted Acquisition”
shall mean any Acquisition by the Borrower or any of the Restricted Subsidiaries, so long as (a) such Acquisition and all transactions
related thereto shall be consummated in all material respects in accordance with all Applicable Laws, (b) if such Acquisition involves
the acquisition of Capital Stock of a Person that upon such Acquisition would become a Subsidiary, such Acquisition shall result in the
issuer of such Capital Stock becoming a Restricted Subsidiary and, to the extent required by Section 9.10, a Guarantor, (c) to
the extent required by Sections 9.10, 9.11 and/or 9.14(b), such Acquisition shall result in the Collateral Agent, for the benefit of the
Secured Parties, being granted a security interest in any Capital Stock or any assets so acquired, (d) subject to Section 1.11,
both immediately prior to and after giving pro forma effect to such Acquisition, no Event of Default under either Section 11.1 or
Section 11.5 shall have occurred and be continuing and (e) immediately after giving pro forma effect to such Acquisition, the
Borrower and its Restricted Subsidiaries shall be in compliance with Section 9.13.
“Permitted Additional
Debt” shall mean (a) secured or unsecured bonds, notes or debentures (which bonds, notes or debentures, if secured, may
only be secured by Liens on the Collateral having a priority ranking equal to the priority of the Liens on the Collateral securing the
Obligations (but without regard to control of remedies) or by Liens on the Collateral having a priority ranking junior to the Liens on
the Collateral securing the Obligations) or (b) secured or unsecured loans (or commitments to provide loans or other extensions
of credit) (which loans or commitments, if secured, may only be secured by Liens on the Collateral having a priority ranking equal to
the priority of the Liens on the Collateral securing the Obligations (but without regard to control of remedies) or by Liens on the Collateral
having a priority ranking junior to the Liens on the Collateral securing the Obligations), in each case Incurred by or provided to the
Borrower or another Guarantor; provided that (a) the terms of such Indebtedness or commitments do not provide for a maturity or any scheduled amortization date
that is earlier than the Latest Maturity Date, a Weighted Average Life to Maturity that is shorter
than the Weighted Average
Life to Maturity of the Initial Term Loans or mandatory prepayments,
mandatory redemptions, mandatory commitment reductions,
mandatory offers to purchase or mandatory sinking fund obligations prior to the Latest Maturity Date, other than,
subject (except, in the case of any such Indebtedness
or commitments that constitute, or are intended to constitute, other First Lien Obligations) to the prior repayment or prepayment of,
or the prior offer to repay or prepay (and to the extent such offer is accepted, the prior repayment or prepayment of) the Obligations
hereunder (other than Hedging Obligations under any Secured Hedging Agreement, Cash Management Obligations under Secured Cash Management
Agreements or contingent indemnification obligations and other contingent obligations not then due and payable), customary
prepayments, commitment reductions, repurchases, redemptions, defeasances, acquisitions or satisfactions and discharges, or offers to
prepay, reduce, redeem, repurchase, defease, acquire or satisfy and discharge, in each case upon, a change of control, asset sale event
or casualty, eminent domain or condemnation event, or on account of the accumulation of excess cash flow (in the case of loans or commitments),
AHYDO Catch-Up Payments and customary acceleration rights upon an event of default; provided that the foregoing requirements of
this clause (a) shall not apply to the extent such Indebtedness or commitments constitute a customary bridge facility, so long as
the long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged satisfies the requirements of
this clause (a) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges, (b) except
for any of the following that are applicable only to periods following the Latest Maturity Date, the covenants, events of default, Subsidiary
guarantees and other terms for such Indebtedness or commitments (excluding, for the avoidance of doubt, interest rates (including through
fixed interest rates), interest rate margins, rate floors, fees, maturity, funding discounts, original issue discounts, currency denomination
and redemption or prepayment terms and premiums), when taken as a whole, are determined by the Borrower to either (A) be consistent
with market terms and conditions and conditions at the time of Incurrence or effectiveness or (B) not be materially more restrictive
on the Borrower and its Restricted Subsidiaries than the terms of this Agreement, when taken as a whole (provided that, if the
documentation governing such Indebtedness or commitments contains any Previously Absent Financial Maintenance Covenant, the Administrative
Agent shall have been given prompt written notice thereof and this Agreement shall have been amended to include such Previously Absent
Financial Maintenance Covenant for the benefit of each Credit Facility (provided, however, that, if (x) the documentation
governing the Permitted Additional Debt that includes a Previously Absent Financial Maintenance Covenant consists of a revolving credit
facility (whether or not the documentation therefor includes any other facilities) and (y) such Previously Absent Financial Maintenance
Covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or a covenant
only applicable to, or for the benefit of, a revolving credit facility, then this Agreement shall be amended to include such Previously
Absent Financial Maintenance Covenant only for the benefit of each revolving credit facility hereunder (and not for the benefit of any
term loan facility hereunder) and such Indebtedness or commitments shall not be deemed “more restrictive” solely as a result
of such Previously Absent Financial Maintenance Covenant benefiting only such revolving credit facilities); provided that a certificate
of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of
such Indebtedness or the providing of such commitments, together with a reasonably detailed description of the material terms and conditions
of such Indebtedness or commitments or drafts of the documentation relating thereto, stating that the Borrower has determined in good
faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy
the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees
with such determination (including a reasonable description of the basis upon which it disagrees), (c) if such Indebtedness is senior
subordinated or subordinated Indebtedness, the terms of such Indebtedness provide for customary “high yield” subordination
of such Indebtedness to the Obligations, (d) any Permitted Additional Debt may not be guaranteed by any subsidiaries of the Borrower
that do not guarantee the Obligations, (e) any secured Permitted Additional Debt Incurred may not be secured by any assets that do not
secure the Obligations and shall be subject to an applicable Customary Intercreditor Agreement and (f) any Permitted Additional
Debt in the form of loans secured by Liens on the Collateral having a priority ranking equal to the priority of the Liens on the Collateral
securing the Obligations (but without regard to control of remedies) shall be subject to the MFN Protection set forth in Section 2.14(c) (but
subject to the MFN Exceptions to such MFN Protection) as if such Permitted Additional Debt were an Incremental Term Loan.
“Permitted Additional
Debt Documents” shall mean any document or instrument (including any guarantee, security or collateral agreement or mortgage
and which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Additional Debt
by any Credit Party.
“Permitted Additional
Debt Obligations” shall mean, if any secured Permitted Additional Debt has been Incurred by or provided to a Credit Party and
is outstanding, the collective reference to (a) the due and punctual payment of (i) the principal of and premium, if any, and
interest at the applicable rate provided in the applicable Permitted Additional Debt Documents (including interest accruing during the
pendency of any proceeding under any applicable Debtor Relief Laws (or would accrue but for the operation of applicable Debtor Relief
Laws), regardless of whether allowed or allowable in such proceeding) on any such Permitted Additional Debt, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment, repurchase, redemption, defeasance, acquisition or otherwise
and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency of any proceeding under any applicable Debtor Relief Laws,
regardless of whether allowed or allowable in such proceeding), of the Borrower or any other Credit Party to any of the Permitted Additional
Debt Secured Parties under the applicable Permitted Additional Debt Documents and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Borrower or any Credit Party under or pursuant to applicable Permitted Additional Debt
Documents.
“Permitted Additional
Debt Secured Parties” shall mean the holders from time to time of the secured Permitted Additional Debt Obligations (and any
representative on their behalf).
“Permitted
Debt Exchange” shall have the meaning provided in Section 2.17(a).
“Permitted Debt Exchange Offer” shall
have the meaning provided in Section 2.17(a).
“Permitted Encumbrances” shall mean:
(a) Liens
for Taxes, assessments or other governmental charges or claims that are not yet overdue by more than sixty days or more, or if more than
sixty days overdue either (i) that are being diligently contested in good faith and by appropriate proceedings for which appropriate
reserves have been established in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction or (ii) with
respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(b) Liens
in respect of property or assets of the Borrower or any of its Restricted Subsidiaries imposed by Applicable Law, such as landlord’s,
carriers’, warehousemen’s, repairmen’s, construction contractors’ and mechanics’ Liens, supplier of materials,
architects’ and other similar Liens, in each case so long as such Liens arise in the ordinary course of business or consistent with
past practice and secure amounts not overdue for a period of more than sixty days or, if more than sixty days overdue either (i) no
action has been taken to enforce such Lien, (ii) such amount is being diligently contested in good faith by appropriate proceedings
for which appropriate reserves have been established in accordance with GAAP or the equivalent accounting principles in the relevant local
jurisdiction or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse
Effect;
(c) Liens
arising from judgments, awards, attachments or decrees for the payment of money in circumstances not constituting an Event of Default
under Section 11.9;
(d) Liens
incurred or pledges or deposits (i) made in connection with the Federal Employers Liability Act or any other workers’
compensation, unemployment insurance, employers’ health tax and other types of social security or similar legislation,
(ii) securing insurance premiums, other liabilities (including in respect of reimbursement and indemnified obligations) to
insurance carriers under insurance or self-insurance arrangements (including in respect of deductibles, co-payment, co-insurance,
self- insurance retention amounts and premiums and adjustments thereof), (iii) securing the performance of tenders, public or
statutory obligations, surety, stay, indemnity, warranty release, customs and appeal bonds, bids, licenses, leases (other than
Financing Lease Obligations), contracts (including government contracts and trade contracts (other than for Indebtedness)),
performance, performance and completion, completion and return-of-money bonds or guarantees, government contracts, financial
assurances and completion obligations and other similar obligations, (iv) securing contested Taxes or import duties or the
payment of rent, (v) securing letters of credit, bank guarantees or similar items issued or posted to support the payment of or
for the benefit of items in the foregoing clauses (i), (ii), (iii) and (iv) above, in each case incurred in the ordinary
course of business or consistent with past practice;
(e) ground
leases or subleases, licenses or sublicenses in respect of Real Property on which locations and/or facilities owned or leased by the Borrower
or any of its Restricted Subsidiaries are located;
(f) (i) easements
or reservations of, or rights of others for, rights-of-way, licenses, special assessments, survey exceptions, restrictions (including
zoning restrictions), minor title defects, servitudes, drains, sewers, exceptions or irregularities in title, encroachments, protrusions
and other similar charges, electric lines, telegraph and telephone lines and other similar purposes, or encumbrances or restrictions on
the use of Real Property, which in each case do not and could not reasonably be expected to have a Material Adverse Effect, and that were
not incurred in connection with and do not secure any Indebtedness, and (ii) to the extent reasonably agreed by the Collateral Agent,
any exception on the title policies issued in connection with any Mortgaged Property;
(g) any
(i) Lien or interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s,
licensor’s or sublicensor’s interest under any lease, sublease, license or sublicense permitted by this Agreement (other than
in respect of a Financing Lease Obligation), (ii) landlord Liens permitted by the terms of any lease, (iii) restriction or encumbrance
that the interest or title of any such lessor, sublessor, licensor or a sublicensor may be subject (including ground lease) or (iv) subordination
of the interest of the lessee, sublessee, licensee or sublicensee under such lease or license to any restriction or encumbrance referred
to in the preceding clause (iii);
(h) Liens
in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with
the importation of goods or to secure the performance of leases of Real Property;
(i) Liens
on goods or inventory or proceeds thereof the purchase, shipment or storage price of which is financed by a documentary letter of credit
or bankers’ acceptance issued or created for the account of the Borrower or any of its Restricted Subsidiaries; provided
that such Lien secures only the obligations of the Borrower or such Restricted Subsidiaries in respect of such letter of credit or bankers’
acceptance to the extent permitted under Section 10.1;
(j) licenses,
sublicenses and cross-licenses of Intellectual Property granted in the ordinary course of business;
(k) Liens
arising from precautionary UCC (or equivalent statute) financing statement, other applicable personal property or movable property security
registry financing statements or similar filings made in respect of Non-Financing Lease Obligations, consignment arrangements or bailee
arrangements entered into by the Borrower or any of its Restricted Subsidiaries;
(l) any
zoning, building or similar law or right reserved to, or vested in, any Governmental Authority to control or regulate the use of any Real
Property or any structure thereon that does not and could not reasonably be expected to have a Material Adverse Effect;
(m) (i) leases,
licenses, subleases or sublicenses (including of Intellectual Property) granted to others in the ordinary course of business that do not
and could not reasonably be expected to have a Material Adverse Effect or (ii) 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 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;
(n) Liens
given to a public utility or any municipality or Governmental Authority when required by such utility or other authority in connection
with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary; provided that such Liens do not and could
not reasonably be expected to have a Material Adverse Effect;
(o) servicing
agreements, development agreements, site plan agreements, subdivision agreements and other agreements with Governmental Authorities pertaining
to the use or development of any of the Real Property of the Borrower or any Restricted Subsidiary, including, without limitation, any
obligations to deliver letters of credit and other security as required, so long as the same do not and could not reasonably be expected
to have a Material Adverse Effect;
(p) 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;
(q) reservations,
limitations, provisos and conditions expressed in any original grant from any Governmental Authority or other grant of real or immovable
property or interests therein;
(r) Liens
consisting of royalties payable with respect to any asset, right or property of the Borrower or its Subsidiaries;
(s) statutory
Liens incurred or pledges or deposits made in favor of a Governmental Authority to secure the performance of obligations of the Borrower
or any of its Subsidiaries under Environmental Laws to which the Borrower or any of its Subsidiaries or any assets of the Borrower or
any of its Subsidiaries is subject, in each case incurred or made in the ordinary course of business or consistent with past practice;
(t) all
rights of expropriation, access or use or other similar right conferred by or reserved by any federal, state or municipal Governmental
Authority;
(u) the
right reserved to, or vested in, any Governmental Authority by any statutory provision or by the terms of any lease, license, franchise,
grant or permit of the Borrower or any Restricted Subsidiary, to terminate any such lease, license, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance thereof;
(v) Liens
arising from Cash Equivalents described in clause (i) of the definition of the term “Cash Equivalents”; and
(w) with
respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by any Applicable Law.
“Permitted
Equal Priority Refinancing Debt” shall mean any secured Indebtedness Incurred by the Borrower and/or the Guarantors in the
form of one or more series of senior secured notes, bonds, debentures or loans; provided that (a) such Indebtedness is
secured by Liens on all or a portion of the Collateral on an equal priority basis with the Liens on the Collateral securing the
Obligations (but without regard to the control of remedies) and is not secured by any property or assets of Holdings, the Borrower
or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth
in the provisos to the definition of “Credit Agreement Refinancing Indebtedness”, (c) such Indebtedness is not at
any time guaranteed by any Persons other than Persons that are Guarantors and (d) the holders of such Indebtedness (or their
representative) and Collateral Agent shall become parties to a Customary Intercreditor Agreement described in clause (a) of the
definition thereof providing that the Liens on the Collateral securing such obligations shall rank equal in priority to the Liens on
the Collateral securing the Obligations (but without regard to the control of remedies).
“Permitted Holder
Group” shall have the meaning provided in the definition of the term “Permitted Holders”.
“Permitted Holders”
shall mean each of (a) the Investors, (b) the Employee Investors and (c) other than for purposes of determining the “Permitted
Holders” for purposes of clause (a)(i) of the definition of “Change of Control”, any group (within the meaning
of Section 13(d)(3) of the Exchange Act (or any successor provision)) the members of which include any of the Permitted Holders
specified in clauses (a) or (b) above (a “Permitted Holder Group”); provided that, in the case of
any Permitted Holder Group, no Person or other group (other than the Permitted Holders specified in clauses (a) or (b) above)
own, directly or indirectly, Capital Stock having more than 50.0% of the total voting power of the Voting Stock of Holdings (or, for the
avoidance of doubt, any New Holdings or Successor Holdings) or any Parent Entity held by such Permitted Holder Group.
“Permitted Initial
Revolving Credit Borrowing Purposes” shall mean one or more Borrowings of Revolving Credit Loans equal to the sum of (a) an
amount sufficient to fund any OID or upfront fees required to be funded pursuant to the “flex provisions” of the Fee Letter
on the Closing Date plus (b) an amount sufficient to fund any ordinary course working capital requirements of the Borrower
and its Subsidiaries (including the Target, Amplify and their respective Subsidiaries) on the Closing Date plus (c) an amount
sufficient to cash collateralize letters of credit outstanding immediately prior to the Closing Date under the Existing Credit Facility
plus (d) an amount not to exceed $5,000,000 to pay the Merger Consideration, the Existing Debt Refinancing and/or the Transaction
Expenses (including any OID or upfront fees).
“Permitted Investment” shall have the
meaning provided in Section 10.5.
“Permitted Junior
Priority Refinancing Debt” shall mean secured Indebtedness Incurred by any Credit Party in the form of one or more series of
junior lien secured notes, bonds or debentures or junior lien secured loans; provided that (a) such Indebtedness is secured
by Liens on all or a portion of the Collateral on a junior priority basis to the Liens on the Collateral securing the Obligations and
any other First Lien Obligations and is not secured by any property or assets of Holdings, the Borrower or any Restricted Subsidiary other
than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth in the provisos in the definition of “Credit
Agreement Refinancing Indebtedness” (provided that such Indebtedness may be secured by a Lien on the Collateral that ranks
junior in priority to the Liens on the Collateral securing the Obligations and any other First Lien Obligations, notwithstanding any provision
to the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness”), (c) the holders of such
Indebtedness (or their representative) and the Collateral Agent shall become parties to a Customary Intercreditor Agreement described
in clause (b) of the definition thereof providing that the Liens on the Collateral securing such obligations shall rank junior in
priority to the Liens on the Collateral securing the Obligations, and (d) such Indebtedness is not at any time guaranteed by any
Person other than Persons that are Guarantors.
“Permitted
Refinancing Indebtedness” shall mean, with respect to any Indebtedness (the “Refinanced Indebtedness”),
any Indebtedness Incurred in exchange for or as a replacement of (including by entering into alternative financing arrangements in
respect of such exchange or replacement (in whole or in part), by adding or replacing lenders, creditors, agents, borrowers and/or
guarantors, or, after the original instrument giving rise to such Indebtedness has been terminated, by entering into any credit
agreement, loan agreement, note purchase agreement, indenture or other agreement), or the net proceeds of which are to be used for
the purpose of modifying, extending, refinancing, renewing, replacing, redeeming, repurchasing, defeasing, acquiring, amending,
supplementing, restructuring, repaying, prepaying, retiring, extinguishing or refunding (collectively to
“Refinance” or a “Refinancing” or “Refinanced”), such Refinanced
Indebtedness (or previous refinancing thereof constituting Permitted Refinancing Indebtedness); provided that (A) the
principal amount (or accreted value, if applicable) of any such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Refinanced Indebtedness outstanding immediately prior to the consummation of such
Refinancing except by an amount equal to the unpaid accrued interest, dividends and premium (including tender premiums), if any,
thereon plus defeasance costs, underwriting discounts and other amounts paid and fees and expenses (including OID, closing
payments, upfront fees and similar fees) incurred in connection with such Refinancing plus an amount equal to any existing
commitment unutilized and letters of credit undrawn thereunder, (B) if the Indebtedness being Refinanced is Indebtedness
permitted by Section 10.1(a), 10.1(h) or 10.1(u), the direct and contingent obligors with respect to such Permitted
Refinancing Indebtedness are not changed (except that any Credit Party may be added as an additional direct or contingent obligor in
respect of such Permitted Refinancing Indebtedness), (C) other than with respect to a Refinancing in respect of Indebtedness
permitted pursuant to Section 10.1(f) or Section 10.1(g), such Permitted Refinancing Indebtedness shall have a final
maturity date equal to or earlier than the final maturity date of, and shall have a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Refinanced Indebtedness; provided that the foregoing requirements
of this clause (C) shall not apply to the extent such Indebtedness constitutes a customary bridge facility, so long as the
long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged satisfies the requirements of
this clause (C) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges,
and (D) if the Indebtedness being Refinanced is Indebtedness permitted by Section 10.1(a), 10.1(h) or 10.1(u), except
for any of the following that are only applicable to periods after the Latest Maturity Date, the terms and conditions contained in
the documentation governing such Permitted Refinancing Indebtedness, taken as a whole, are determined by the Borrower to either
(A) be consistent with market terms and conditions and conditions at the time of incurrence, issuance or effectiveness or
(B) not be materially more restrictive on the obligor or obligors of such Indebtedness than the terms and conditions contained
in the documentation governing such Refinanced Indebtedness being Refinanced (including, if applicable, as to collateral priority
and subordination, but excluding as to interest rates (including through fixed exchange rates), interest rate margins, rate floors,
fees, maturity, currency denomination, funding discounts, original issue discount and redemption or prepayment terms and premiums)
(provided that, if the documentation governing such Permitted Refinancing Indebtedness contains a Previously Absent Financial
Maintenance Covenant, the Administrative Agent shall have been given prompt written notice thereof and this Agreement shall be
amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility (provided, however,
that if (x) the documentation governing the Permitted Refinancing Indebtedness that includes a Previously Absent Financial
Maintenance Covenant consists of a revolving credit facility (whether or not the documentation therefor includes any other
facilities) and (y) such Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance
covenant for the benefit of such revolving credit facility or a covenant only applicable to, or for the benefit of, a revolving
credit facility, the Previously Absent Financial Maintenance Covenant shall only be included in this Agreement for the benefit of
each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder) and such Permitted
Refinancing Indebtedness shall not be deemed “more restrictive” solely as a result of such Previously Absent Financial
Maintenance Covenant benefiting only such revolving credit facilities)); provided that a certificate of an Authorized Officer
of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness,
together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the
documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the
foregoing requirement in clause (D) shall be conclusive evidence that such terms and conditions satisfy the foregoing
requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such
determination (including a reasonable description of the basis upon which it disagrees).
“Permitted Unsecured
Refinancing Debt” shall mean unsecured Indebtedness Incurred by any Credit Party in the form of one or more series of senior,
senior subordinated or subordinated unsecured notes, bonds, debentures or loans; provided that (a) such Indebtedness satisfies
the applicable requirements set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness” and
(b) such Indebtedness is not at any time guaranteed by any Persons other than Persons that are Guarantors.
“Person”
shall mean any individual, partnership, Joint Venture, firm, corporation, unlimited liability company, limited liability company, association,
trust or other enterprise or any Governmental Authority.
“Planned Expenditures” shall have the
meaning provided in the definition of the term “Excess Cash Flow.”
“Platform” shall have the meaning provided
in Section 13.2.
“Pledge Agreement”
shall mean the Pledge Agreement, dated as of the Closing Date, among Holdings, the Borrower, the Domestic Subsidiary pledgors party thereto
and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C.
“Preferred Stock”
shall mean any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“Prepayment Event”
shall mean any Asset Sale Prepayment Event, Recovery Prepayment Event or Debt Incurrence Prepayment Event.
“Prepayment Premium Period” shall have
the meaning provided in Section 5.1(b).
“Present Fair Saleable
Value” shall mean the amount that could be obtained by an independent willing seller from an independent willing buyer if the
assets (both tangible and intangible) of the applicable Person and its subsidiaries taken as a whole are sold on a going-concern basis
with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises
insofar as such conditions can be reasonably evaluated.
“Previous Holdings” shall have the meaning
provided in the definition of the term “Holdings.” “Previously Absent Financial Maintenance Covenant” shall
mean, at any time (x) any financial
maintenance covenant
that is not included in this Agreement at such time and (y) any financial maintenance covenant in any other Indebtedness that is
included in this Agreement at such time but with covenant levels that are more restrictive on the Borrower and the Restricted Subsidiaries
than the covenant levels included in this Agreement at such time.
“Prime Rate”
shall mean the rate of interest last quoted by The Wall Street Journal (or another national publication selected by the Administrative
Agent and reasonably acceptable to the Borrower) as the “Prime Rate” in the U.S. or, if The Wall Street Journal or such other
national publication 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 determined by the Administrative Agent) or any similar release by the Federal Reserve
Board (as determined by the Administrative Agent).
“Proceeding” shall have the meaning provided
in Section 13.5(a)(iii).
“Pro Forma Balance Sheet” shall have the
meaning provided in Section 8.9(b).
“Pro Forma Entity”
shall mean any Acquired Entity or Business, any Sold Entity or Business, any Converted Restricted Subsidiary or any Converted Unrestricted
Subsidiary.
“Pro Forma Financial Statements” shall
have the meaning provided in Section 8.9(b).
“Public Company”
shall mean any Person with a class or series of Capital Stock that is traded on the New York Stock Exchange, the NASDAQ or any comparable
stock exchange or similar market.
“Public Company Costs”
shall mean costs relating to compliance with the provisions of the Securities Act and the Exchange Act, in each case 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, costs 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.
“Public Lender” shall have the meaning
provided in Section 13.2.
“Purchasing Borrower
Party” shall mean Holdings, the Borrower or any Restricted Subsidiary of the Borrower that becomes a Transferee pursuant to
Section 13.6(g).
“Qualified Capital Stock” shall mean any
Capital Stock that is not Disqualified Capital Stock.
“Qualified
Proceeds” shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business; provided
that the Fair Market Value of any such assets or Capital Stock shall be determined by the Borrower in good faith.
“Qualified Receivables
Facility” shall mean any Receivables Facility of a Receivables Subsidiary that meets the following conditions: (a) the
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 Borrower and its Restricted Subsidiaries; (b) all
sales of accounts receivables and related assets by the 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 Borrower); (c) the financing terms, covenants, termination
events and other provisions thereof shall be on market terms (as determined in good faith by the 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 Borrower or any of its Restricted Subsidiaries (other than a
Receivables Subsidiary).
“Qualifying IPO”
shall mean the issuance by Holdings (or any Parent Entity of Holdings) of its common Capital Stock in an underwritten primary public offering
(other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed
with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“Rating Agency”
shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Initial Term Loans and/or the
Borrower and/or any other Person, instrument or security publicly available, a nationally recognized statistical rating agency or agencies,
as the case may be, selected by the Borrower which shall be substituted for Moody’s or S&P or both, as the case may be.
“Real Property”
shall mean, collectively, all right, title and interest in and to any and all parcels of or interests in real property owned or leased
by any person, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant
fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership thereof.
“Receivables
Facility” shall mean any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed,
restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants
and indemnities made in connection with such facilities) to the Borrower or any of the Restricted Subsidiaries (other than a Receivables
Subsidiary) pursuant to which the Borrower or any of the Restricted Subsidiaries sells its accounts receivable 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 its accounts receivable 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
Fees” shall mean distributions or payments made directly or by means of discounts with respect to any accounts receivable or
participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary
in connection with, any Receivables Facility.
“Receivables
Subsidiary” shall mean any Subsidiary formed for the purpose of, and that solely engages only in, one or more Receivables Facilities
and other activities reasonably related thereto.
“Recovery
Event” shall mean (a) any damage to, destruction of, or other casualty or loss involving, any property or asset or
(b) any seizure, condemnation, confiscation or taking under the power of eminent domain of, or any requisition of title or use
of or relating to, or any similar event in respect of, any property or asset, in each case, of the Borrower or a Restricted
Subsidiary.
“Recovery Prepayment
Event” shall mean the receipt of cash proceeds with respect to any settlement or payment in connection with any Recovery Event
in respect of any property or asset of the Borrower or any Restricted Subsidiary; provided that the term “Recovery Prepayment
Event” shall not include any Asset Sale Prepayment Event.
“Redemption Notice” shall
have the meaning provided in Section 10.7(a).
“Reference Rate”
shall mean an interest rate per annum equal to the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London
time) on such day by reference to ICE Benchmark Administration Limited’s “LIBOR” rate (or by reference to the rates
provided by any Person that take over the administration of such rate if ICE Benchmark Administration Limited is no longer making a “LIBOR”
rate available) for deposits in Dollars (as set forth on the Bloomberg screen displaying such “LIBOR” rate (or, in the event
such rate does not appear on a Bloomberg page or screen, on any successor or substitute page or screen that displays such rate,
or on the appropriate page of such other information service that publishes such rate from time to time, in each case as selected
by the Administrative Agent)) for a period equal to three-months; provided that, to the extent that the Eurodollar Rate is not
ascertainable pursuant to the foregoing, the Reference Rate shall be determined by the Administrative Agent to be the average of the rates
per annum at which deposits in Dollars are offered for a three month Interest Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on such date.
“Refinance,”
“Refinancing” and “Refinanced” shall have the meanings provided in the definition of the term “Permitted
Refinancing Indebtedness”.
“Refinanced Debt”
shall have the meaning provided in the definition of Credit Agreement Refinancing Indebtedness.
“Refinanced Indebtedness”
shall have the meaning provided in the definition of the term “Permitted Refinancing Indebtedness”.
“Refunding Capital Stock” shall have the
meaning provided in Section 10.6(a). “Register” shall have the meaning provided in Section 13.6(b)(v).
“Regulation D”
shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin
requirements.
“Regulation T”
shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin
requirements.
“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin
requirements.
“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin
requirements.
“Reinvestment Period”
shall mean, with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event, the day which is eighteen months after the receipt
of cash proceeds by the Borrower or any Restricted Subsidiary from such Asset Sale Prepayment Event or Recovery Prepayment Event.
“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, advisors,
controlling Persons and other representatives and successors of such Person or such Person’s Affiliates.
“Release”
shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration
into or through the Environment or within, from or into any building, structure, facility or fixture.
“Repayment Amount”
shall mean any Initial Term Loan Repayment Amount, an Extended Term Loan Repayment Amount with respect to any Extension Series and
the amount of any installment of Incremental Term Loans scheduled to be repaid on any date.
“Reportable Event”
shall mean an event described in Section 4043(c) of ERISA and the regulations thereunder, other than those events as to which
the 30 day notice period referred to in Section 4043 of ERISA has been waived, with respect to a Pension Plan (other than a Pension
Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) and (o) of Section 414
of the Code).
“Repricing Transaction”
shall mean (a) the Incurrence by the Borrower of any term loans (including, without limitation, any new or additional term loans
under this Agreement, whether Incurred directly or by way of the conversion of Initial Term Loans into a new Class of replacement
term loans under this Agreement) that are broadly syndicated under credit facilities (i) having an Effective Yield that is less than
the Effective Yield for the Initial Term Loans of the respective equivalent Type, but excluding Indebtedness Incurred in connection with
a Qualifying IPO, Change of Control (or transaction that if consummated would constitute a Change of Control) or Transformative Acquisition
and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in
part, outstanding principal of Initial Term Loans or (b) any effective reduction in the Effective Yield for the Initial Term Loans
(e.g., by way of amendment, waiver or otherwise), except for a reduction in connection with a Qualifying IPO, Change of Control (or transaction
that if consummated would constitute a Change of Control) or Transformative Acquisition and, in the case of any transaction under either
clause (a) or clause (b) above, the primary purpose of which is to lower the Effective Yield on any Initial Term Loans. Any
determination by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and
binding on all Lenders holding Initial Term Loans.
“Required Lenders”
shall mean, at any date and subject to the limitations set forth in Section 13.6(h), Non-Defaulting Lenders having or holding greater
than 50% of the sum of (a) the outstanding principal amount of the Term Loans in the aggregate at such date, (b)(i) the Adjusted
Total Revolving Credit Commitment at such date and the Adjusted Total Extended Revolving Credit Commitment of all Classes at such date
or (ii) if the Total Revolving Credit Commitment (or any Total Extended Revolving Credit Commitment of any Class) has been terminated
or, for the purposes of acceleration pursuant to Section 11, the outstanding principal amount of the Revolving Credit Loans and Letter
of Credit Exposure (excluding the Revolving Credit Exposure of Defaulting Lenders) in the aggregate at such date and/or the outstanding
principal amount of the Extended Revolving Credit Loans and letter of credit exposure under such Extended Revolving Credit Commitments
(excluding any such Extended Revolving Credit Loans and letter of credit exposure of Defaulting Lenders) at such date and (c)(i) the
Adjusted Total Additional/Replacement Revolving Credit Commitment of each Class of Additional/Replacement Revolving Credit Commitments
at such date or (ii) if the Adjusted Total Additional/Replacement Revolving Credit Commitment of any Class of Additional/Replacement
Revolving Credit Commitments has been terminated or for purposes of acceleration pursuant to Section 11, the outstanding principal
amount of the Additional/Replacement Revolving Credit Loans of such Class and the related revolving credit exposure (excluding the
revolving credit exposure of Defaulting Lenders) in the aggregate at such date.
“Required Reimbursement Date” shall have
the meaning provided in Section 3.4(a).
“Required
Revolving Credit Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding greater than 50% of the
Adjusted Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment has been terminated at such
time, a majority of the outstanding principal amount of the Revolving Credit Loans and Revolving Credit Exposure (excluding the
Revolving Credit Exposure of Defaulting Lenders) at such time).
“Restoration
Certification” shall mean, with respect to any Recovery Prepayment Event, a certification made by an Authorized Officer of
the Borrower or a Restricted Subsidiary, as applicable, to the Administrative Agent prior to the end of the Reinvestment Period
certifying (a) that the Borrower or such Restricted Subsidiary intends to use the proceeds received in connection with such
Recovery Prepayment Event to repair, restore or replace the property or assets in respect of which such Recovery Prepayment Event
occurred, or otherwise invest in assets useful to the business, (b) the approximate costs of completion of such repair,
restoration or replacement and (c) that such repair, restoration, reinvestment, or replacement will be completed within the
later of (x) eighteen months after the date on which cash proceeds with respect to such Recovery Prepayment Event were received
and (y) 180 days after delivery of such Restoration Certification.
“Restricted Investments”
shall mean any Investment other than a Permitted Investment.
“Restricted
Payment Amount” shall mean, at any time, the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries for the Test Period most recently ended (measured as of such date) based upon the Section 9.1
Financials most recently delivered on or prior to such date, minus the sum of (a) the amount utilized by the Borrower or any
Restricted Subsidiary to make Restricted Payments in reliance on Section 10.6(f)(iv), (b) the amount utilized by the Borrower
or any Restricted Subsidiary to Investments in reliance on Section 10.5(vv) (c) the amount utilized by the Borrower or any Restricted
Subsidiary to prepay, repurchase, redeem or otherwise defease or make similar payments in respect of Junior Debt prior to its stated maturity
made by the Borrower or any Restricted Subsidiary in reliance on Section 10.7(a)(iii)(D).
“Restricted Payments”
shall have the meaning provided in Section 10.6.
“Restricted Subsidiary”
shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary. Unless otherwise expressly provided herein, all references
herein to a “Restricted Subsidiary” shall mean a Restricted Subsidiary of the Borrower.
“Retained Asset Sale
Proceeds” shall mean that portion of the Net Cash Proceeds of an Asset Sale Prepayment Event or Recovery Payment Event not required
to be offered to prepay Term Loans pursuant to Section 5.2(a)(i) due to the Disposition Percentage being less than 100%.
“Retained Refused Proceeds” shall have
the meaning provided in Section 5.2(c)(ii).
“Return”
shall mean, with respect to any Investment, any dividend, distribution, interest, fee, premium, return of capital, repayment of principal,
income, profit (from a Disposition or otherwise) and any other similar amount received or realized in respect thereof.
“Revolving Credit
Borrowing” shall mean a borrowing consisting of Revolving Credit Loans of the same Type and Class and, in the case of Eurodollar
Loans, having the same Interest Period made by each of the Revolving Credit Lenders under such Class pursuant to Section 2.1(b).
“Revolving Credit
Commitment” shall mean, (a) with respect to each Lender that is a Lender on the Closing Date, the amount set forth opposite
such Lender’s name on Schedule 1.1(a) as such Lender’s “Revolving Credit Commitment,” (b) in the case
of any Lender that becomes a Lender after the Closing Date, the amount specified as such Lender’s “Revolving Credit Commitment”
in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment and (c) in
the case of any Lender that increases its Revolving Credit Commitment or becomes an Incremental Revolving Credit Commitment Increase Lender
in respect of the Revolving Credit Facility, in each case pursuant to Section 2.14, the amount specified in the applicable Incremental
Agreement, in each case as the same may be changed from time to time pursuant to terms hereof. The aggregate amount of Revolving Credit
Commitments as of the Closing Date is $50,000,000.
“Revolving Credit
Commitment Percentage” shall mean, at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s
Revolving Credit Commitment by (b) the aggregate amount of the Revolving Credit Commitments of all Revolving Credit Lenders; provided
that, at any time when the Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit Commitment
Percentage shall be its Revolving Credit Commitment Percentage as in effect immediately prior to such termination.
“Revolving Credit
Exposure” shall mean, with respect to any Lender at any time, the sum of (a) the aggregate principal amount of the Revolving
Credit Loans of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at such time and (c) such Lender’s
Swingline Exposure at such time.
“Revolving Credit Extension Request” shall
have the meaning provided in Section 2.15(b). “Revolving Credit Facility” shall have the meaning provided in the
recitals to this Agreement.
“Revolving Credit
Lender” shall mean, at any time, any Lender that has a Revolving Credit Commitment at such time.
“Revolving Credit Loan” shall have the
meaning provided in Section 2.1(b)(i).
“Revolving Credit
Maturity Date” shall mean the fifth anniversary of the Closing Date, or, if such anniversary is not a Business Day, the Business
Day immediately following such anniversary.
“Revolving Credit
Note” shall mean a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially
the form of Exhibit F-1 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit Lender resulting from
the Revolving Credit Loans made by such Revolving Credit Lender.
“Revolving Credit
Termination Date” shall mean the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit Loans
shall be outstanding and the Letter of Credit Obligations shall have been reduced to zero or Cash Collateralized.
“Rollover Investors” shall have the meaning
provided in the recitals to this Agreement.
“S&P”
shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.
“Sale Leaseback”
shall mean any transaction or series of related transactions pursuant to which the Borrower or any of the Restricted Subsidiaries (a) sells,
transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such
transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes
as the property being sold, transferred or Disposed of.
“Sanctions”
shall mean any U.S. sanctions administered by OFAC or the U.S. Department of State.
“SEC” shall mean the Securities
and Exchange Commission or any successor thereto.
“Second
Incremental Agreement” shall mean that certain Incremental Agreement No. 2, dated as of October 31,
2018 among the Borrower, Holdings, the other Guarantors, the Lenders party thereto and the Administrative Agent.
“Second
Incremental Agreement Effective Date” shall have the meaning provided in the Second Incremental
Agreement.
“Section 9.1
Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or
9.1(b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).
“Secured Cash Management
Agreement” shall mean, at the Borrower’s written election to the Administrative Agent, any agreement relating to Cash
Management Services that is entered into by and between Holdings, the Borrower or any Restricted Subsidiary and a Cash Management Bank.
“Secured Hedging
Agreement” shall mean, at the Borrower’s written election to the Administrative Agent, any Hedging Agreement that is entered
into by and between Holdings, the Borrower or any Restricted Subsidiary and any Hedge Bank. For purposes of the preceding sentence, the
Borrower may deliver one notice designating all Hedging Agreements entered into pursuant to a specified Master Agreement as “Specified
Hedging Agreements”.
“Secured Parties”
shall mean, collectively, (a) the Lenders, (b) the Letter of Credit Issuers, (c) the Swingline Lender, (d) the Administrative
Agent, (e) the Collateral Agent, (f) each Hedge Bank, (g) each Cash Management Bank, (h) the beneficiaries of each
indemnification obligation undertaken by any Credit Party under the Credit Documents and (i) any successors, endorsees, permitted
transferees and permitted assigns of each of the foregoing.
“Securities Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securitization Repurchase
Obligation” shall mean any obligation of a seller (or any guaranty of such obligation) of assets subject to a Receivables Facility
in 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 the seller.
“Security Agreement”
shall mean the Security Agreement, dated as of the Closing Date, among Holdings, the Borrower, the Domestic Subsidiary grantors party
thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B.
“Security Documents”
shall mean, collectively the Security Agreement, the Pledge Agreement, the Mortgages, if any, and each other security agreement or other
instrument or document executed and delivered pursuant to Section 6.2, 9.10, 9.11 or 9.14 and any Customary Intercreditor Agreement
executed and delivered pursuant to Section 10.2 or pursuant to any of the Security Documents.
“Similar Business”
shall mean any business conducted or proposed to be conducted by the Borrower and the Restricted Subsidiaries on the Closing Date or any
business that is similar, reasonably related, incidental or ancillary thereto.
“Software” shall have the meaning provided
in the Security Agreement.
“Sold Entity or Business”
shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Solvent” shall mean, at the time of determination:
(a) each
of the Fair Value and the Present Fair Saleable Value of the assets of a Person and its Subsidiaries taken as a whole exceed their Stated
Liabilities and Identified Contingent Liabilities; and
(b) such Person and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and
(c) such
Person and its Subsidiaries taken as a whole can pay their Stated Liabilities and Identified Contingent Liabilities as they mature.
Defined terms used in the
foregoing definition shall have the meanings set forth in the solvency certificate delivered on the Closing Date pursuant to Section 6.8.
“Special Purpose
Subsidiary” shall mean any (a) not-for-profit Subsidiary, (b) captive insurance company or (c) Receivables Subsidiary
and any other Subsidiary formed for a specific bona fide purpose not including substantive business operations and that does not own any
material assets, in each case, that has been designated as a “Special Purpose Subsidiary” by the Borrower.
“Specified Acquisition
Agreement Representations” shall mean the representations and warranties made by, or with respect to, the Target and its subsidiaries
in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Holdings (or its affiliates)
has the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the Acquisition Agreement
or to decline to consummate the Mergers (in accordance with the terms thereof) as a result of a breach of such representations and warranties
in the Acquisition Agreement.
“Specified Debt Incurrence Prepayment Event”
shall have the meaning provided in Section 5.2(a)(i).
“Specified Existing
Revolving Credit Commitment” shall mean any Existing Revolving Credit Commitments belonging to a Specified Existing
Revolving Credit Commitment Class.
“Specified Existing
Revolving Credit Commitment Class” shall have the meaning provided in Section 2.15(b).
“Specified Representations”
shall mean the representations and warranties of the Borrower and the Guarantors set forth in Sections 8.1 (with respect to the organizational
existence only of Holdings and Merger Sub), the first two sentences of Section 8.2, Section 8.3(c) (with respect to the
Incurrence of the Loans on the Closing Date only, the provision of the Guarantees by the Credit Parties on the Closing Date and the granting
of the Liens on the Collateral by the Credit Parties on the Closing Date), Section 8.5, Section 8.7, Section 8.16, Section 8.19(b) (with
respect to the use of the proceeds of the Loans on the Closing Date), Section 8.20(b) (with respect to the use of the proceeds
of the Loans on the Closing Date), Section 8.21, Section 8.23 and Section 3.3 of the Security Agreement (limited to the
Security Documents required to be delivered on the Closing Date and the other requirements set forth in Section 6).
“Specified Restructuring”
means any restructuring initiative, cost saving initiative or other similar strategic initiative of the Borrower or any of its Restricted
Subsidiaries after the Closing Date described in reasonable detail in a certificate of an Authorized Officer delivered by the Borrower
to the Administrative Agent.
“Specified Subsidiary”
shall mean, at any date of determination, any Restricted Subsidiary that would be a “significant subsidiary” as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Closing
Date.
“Specified Transaction”
shall mean, with respect to any period, any Investment (including Acquisitions), sale, transfer or other Disposition of assets or property, Incurrence,
Refinancing, prepayment, redemption, repurchase, defeasance, acquisition, similar payment, extinguishment, retirement or repayment of
Indebtedness, Restricted Payment, Subsidiary designation, provision of Incremental Term Loans, provision of Incremental Revolving Credit
Commitment Increases, provision of Additional/Replacement Revolving Credit Commitments, creation of Extended Term Loans or Extended Revolving
Credit Commitments or other event that by the terms of the Credit 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.
“Sponsor”
shall mean, collectively Hellman & Friedman LLC and/or its Affiliates and any funds, partnerships or other co-investment vehicles
managed, advised or controlled by the foregoing or their respective Affiliates, but excluding any operating portfolio companies of Hellman &
Friedman LLC or any such Affiliate.
“SPV” shall have the meaning provided
in Section 13.6(c).
“Standard
Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Borrower
or any Subsidiary of the Borrower which the 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.
“Stated Amount”
of any Letter of Credit shall mean, unless otherwise specified herein, the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related
thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the maximum stated amount of such Letter of Credit after giving pro forma effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
“Statutory Reserves” shall have the meaning
provided in the definition of the term “Eurodollar Rate.”
“Subordinated
Indebtedness” shall mean any third-party Indebtedness for borrowed money (and any Guarantee Obligation in respect thereof)
that is subordinated expressly by its terms in right of payment to the Obligations.
“Subordinated Indebtedness
Documentation” shall mean any document or instrument issued or executed with respect to any Subordinated Indebtedness.
“Subsidiary”
of any Person shall mean and include (a) any corporation more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock
of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through Subsidiaries and (b) any limited liability company, partnership, association,
Joint Venture or other entity in which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at
the time. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.
“Subsidiary Guarantor” shall mean each
Guarantor that is a Subsidiary of the Borrower.
“Successor Benchmark Rate” shall have the meaning provided in Section 2.10(d).
“Successor Borrower” shall have the meaning provided in Section 10.3(a).
“Successor Holdings” shall have the meaning
provided in Section 10.9(b).
“Swap”
shall mean any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47)
of the Commodity Exchange Act.
“Swap Obligation” shall mean any obligation
to pay or perform under any Swap.
“Swap
Termination Value” shall mean, in respect of any one or more Hedging Agreements, after taking into account the effect of
any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such
Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations
provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).
“Swingline Commitment” shall mean $5,000,000.
“Swingline
Exposure” shall mean, with respect to any Lender, at any time, such Lender’s Revolving Credit Commitment Percentage of
the Swingline Loans outstanding at such time.
“Swingline
Lender” shall mean UBS AG, Stamford Branch, in its capacity as lender of Swingline Loans hereunder, or such other financial
institution that, after the Closing Date, shall agree to act in the capacity of lender of Swingline Loans hereunder. In the event that
there is more than one Swingline Lender at any time, references herein and in the other Credit Documents to the Swingline Lender shall
be deemed to refer to the Swingline Lender in respect of the applicable Swingline Loan or to all Swingline Lenders, as the context requires.
“Swingline Loan” shall
have the meaning provided in Section 2.1(d)(i).
“Swingline
Maturity Date” shall mean, with respect to any Swingline Loan, the date that is three Business Days prior to the Revolving Credit
Maturity Date.
“Target” shall
have the meaning provided in the recitals to this Agreement.
“Taxes” shall have the meaning provided in Section 5.4(a).
“Term Loan”
shall mean an Initial Term Loan, an Incremental Term Loan or any Extended Term Loan, as applicable.
“Term Loan Exchange Notes” shall have
the meaning provided in Section 2.17(a).
“Term Loan Exchange Effective Date” shall
have the meaning provided in Section 2.17(a).
“Term Loan Extension Request” shall have the meaning provided in
Section 2.15(a).
“Term Loan Facility”
shall mean any of the Initial Term Loan Facility, any Incremental Term Loan Facility and any Extended Term Loan Facility.
“Term Note”
shall mean a promissory note of the Borrower payable to any Initial Term Loan Lender or its registered assigns, in substantially the form
of Exhibit F-2 hereto, evidencing the aggregate Indebtedness of the Borrower to such Initial Term Loan Lender resulting from the
Initial Term Loans made by such Initial Term Loan Lender.
“Test Period”
shall mean, for any determination under this Agreement, the most recent period of four consecutive fiscal quarters of the Borrower ended
on or prior to such date of determination (taken as one accounting period) in respect of which Section 9.1 Financials shall have
been delivered to the Administrative Agent for each fiscal quarter or fiscal year in such period; provided that, prior to the first
date that Section 9.1 Financials shall have been delivered pursuant to Section 9.1(a) or (b), the Test Period in effect
shall be the period of four consecutive fiscal quarters of the Borrower ended June 30, 2017. A Test Period may be designated by reference
to the last day thereof (i.e. the June 30, 2017 Test Period refers to the period of four consecutive fiscal quarters of the Borrower
ended June 30, 2017), and a Test Period shall be deemed to end on the last day thereof.
“Total Additional/Replacement
Revolving Credit Commitment” shall mean the sum of Additional/Replacement Revolving Credit Commitments of all the Lenders providing
any Class of Additional/Replacement Revolving Credit Commitments.
“Total Commitment”
shall mean the sum of the Total Initial Term Loan Commitment, the Total Incremental Term Loan Commitment, the Total Revolving Credit Commitment,
the Total Additional/Replacement Revolving Credit Commitment and the Total Extended Revolving Credit Commitment of each Extension Series.
“Total Credit Exposure”
shall mean, at any date, the sum, without duplication, of the Total Revolving Credit Commitment at such date (or, if the Total Revolving
Credit Commitment shall have terminated on such date, the aggregate Revolving Credit Exposure of all Revolving Credit Lenders at such
date), the Total Additional/Replacement Revolving Credit Commitment at such date (or, if the Total Additional/Replacement Revolving Credit
Commitment shall have been terminated on such date, the aggregate exposure of all Additional/Replacement Revolving Credit Lenders at such
date), the Total Extended Revolving Credit Commitment of each Extension Series at such date (or if the Total Extended Revolving Credit
Commitment of any Extension Series shall have been terminated on such date, the aggregate exposures of all lenders under such series
at such date) and the outstanding principal amount of all Term Loans at such date.
“Total Extended Revolving
Credit Commitment” shall mean the sum of all Extended Revolving Credit Commitments of all Lenders under each Extension Series.
“Total Incremental
Term Loan Commitment” shall mean the sum of the Incremental Term Loan Commitments of any Class of Incremental Term Loans
of all the Lenders providing such Class of Incremental Term Loans.
“Total Initial Term
Loan Commitment” shall mean the sum of the Initial Term Loan Commitments of all the Lenders.
“Total Revolving
Credit Commitment” shall mean, on any date, the sum of the Revolving Credit Commitments on such date of all the Revolving Credit
Lenders.
“Tranche
B Term Lender” shall have the meaning provided for such term in the First Incremental Agreement.
“Tranche
B Term Loan” shall have the meaning provided for such term in the First Incremental Agreement.
“Tranche
C Term Lender” shall have the meaning provided for such term in the Second Incremental Agreement.
“Tranche
C Term Loan” shall have the meaning provided for such term in the Second Incremental Agreement.
“Transaction Expenses”
shall mean any fees or expenses incurred or paid by the Sponsor, Investors, Merger Sub, Merger Sub II, Holdings, the Borrower, any
of their Subsidiaries or any of their Affiliates in connection with the Transactions, this Agreement and the other Credit Documents and
the transactions contemplated hereby and thereby.
“Transactions”
shall mean, collectively, (a) the formation of Holdings, Merger Sub, Merger Sub II and any Parent Entity of Holdings for purposes
of consummating the other transactions contemplated by the Acquisition Agreement, (b) the entry into the Acquisition Agreement, the
Commitment Letter, the Fee Letter and any other Contractual Obligations in connection therewith, (c) the Equity Contribution, including
the rollover consummated by the Rollover Investors, (d) the Mergers and the consummation of the other transactions contemplated by
the Acquisition Agreement, including the payment of the Merger Consideration and the payment of certain Transaction Expenses, (e) the
Existing Debt Refinancing, (f) the entering into of the Agreement, the other Credit Documents, and funding of the Loans on the Closing
Date and the consummation of the other transactions contemplated by this Agreement and the other Credit Documents and (g) the payment
of the Transaction Expenses.
“Transferee” shall have the meaning provided
in Section 13.6(f).
“Transformative Acquisition”
shall mean any acquisition by the Borrower or any Restricted Subsidiary that is either (a) not permitted by the terms of this Agreement
immediately prior to the consummation of such acquisition or (b) if permitted by the terms of this Agreement immediately prior to
the consummation of such acquisition, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility under this
Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by the Borrower
acting in good faith.
“Treasury
Capital Stock” shall have the meaning provided in Section 10.6(a).
“Type” shall mean as to any
Loan, its nature as an ABR Loan or a Eurodollar Loan.
“UCC” shall
mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.
“UCP” shall
mean, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce
(“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“Unfunded Current
Liability” of any Pension Plan shall mean the amount, if any, by which the present value of the accrued benefits under the Pension
Plan exceeds the Fair Market Value of the assets allocable thereto as of the close of its most recent plan year, determined in both cases
using the applicable assumptions promulgated under Section 430 of the Code.
“United States Tax Compliance Certificate”
shall have the meaning provided in Section 5.4(d).
“Unpaid Drawing” shall have the meaning provided in Section 3.4(a).
“Unrestricted Subsidiary”
shall mean (a) any Subsidiary of the Borrower that is formed or acquired after the Closing Date and is designated as an Unrestricted
Subsidiary by the Borrower pursuant to Section 9.15 subsequent to the Closing Date, (b) any existing Restricted Subsidiary of
the Borrower that is designated as an Unrestricted Subsidiary by the Borrower pursuant to Section 9.15 subsequent to the Closing
Date and (c) any Subsidiary of an Unrestricted Subsidiary.
“Voting Stock”
shall mean, with respect to any Person, shares of such Person’s Capital Stock that is at the time generally entitled, without regard
to contingencies, to vote in the election of the Board of Directors of such Person. To the extent that a partnership agreement, limited
liability company agreement or other agreement governing a partnership or limited liability company provides that the members of the Board
of Directors of such partnership or limited liability company (or, in the case of a limited partnership whose business and affairs are
managed or controlled by its general partner, the Board of Directors of the general partner of such limited partnership) is appointed
or designated by one or more Persons rather than by a vote of Voting Stock, each of the Persons who are entitled to appoint or designate
the members of such Board of Directors will be deemed to own a percentage of Voting Stock of such partnership or limited liability company
equal to (a) the aggregate votes entitled to be cast on such Board of Directors by the members of such Board of Directors which
such Person or Persons are entitled to appoint or designate divided by (b) the aggregate number of votes of all members of such Board
of Directors.
“Weighted Average
Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the
sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal
amount of such Indebtedness.
“Wholly-Owned Subsidiary”
shall mean a Subsidiary of a Person, all of the outstanding Capital Stock of which (other than (x) any director’s qualifying
shares and (y) shares issued to other Persons to the extent required by Applicable Law) are owned by such Person and/or by one or
more wholly-owned Subsidiaries of such Person.
“Withdrawal Liability”
shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Title IV of ERISA.
“Withholding Agent”
shall mean any Credit Party, the Administrative Agent and, in the case of any U.S. federal withholding tax, any other withholding agent,
if applicable.
“Write-Down and Conversion
Power” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers
are described in the EU Bail-In Legislation Schedule.
1.2 Other
Interpretive Provisions. With reference to this Agreement and each other Credit Document, unless
otherwise specified herein or in such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The
words “herein,” “hereto,” “hereof” and “hereunder” and words
of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision
thereof.
(c) The term “including” is by way of example and not limitation.
(d) Section,
Exhibit and Schedule references are to the Credit Document in which such reference appears.
(e) The
term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or electronic form.
(f) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including”; the words “to” and “until” each mean “to but excluding”;
and the word “through” means “to and including.”
(g) Section headings
herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Credit Document.
(h) Any
reference to any Person shall be constructed to include such Person’s successors or assigns (subject to any restrictions on assignment
set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or
all of the functions thereof.
(i) Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
(j) The word “will” shall be construed to have the same meaning as the word “shall.”
(k) The
words “asset” and “property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(a) All
accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP, applied in a manner consistent with that used in preparing, prior
to the Closing Date, the Historical Financial Statements and, after
the Closing Date, the Section 9.1 Financials, except as otherwise specifically prescribed herein; provided, however,
that (i) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate
the effect of any Accounting Change occurring after the Closing Date on the operation of such provision, regardless of whether any such
notice is given before or after such Accounting Change, then such provision shall be interpreted as if such Accounting Change had not
occurred until such notice shall have been withdrawn or such provision amended in accordance herewith and (ii) if the Administrative
Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof to eliminate the effect of any Accounting
Change occurring after the Closing Date on the operation of such provision, regardless of whether any such notice is given before or after
such Accounting Change, then such provision shall be interpreted as if such Accounting Change had not occurred until such notice shall
have been withdrawn or such provision amended in accordance herewith, but only to the extent that, without undue burden or expense, the
Borrower, its auditors and/or its financial systems are capable of interpreting such provisions as if such Accounting Change had not occurred.
(b) Where
reference is made to “the Borrower and its Restricted Subsidiaries, on a consolidated basis” or similar language, such consolidation
shall not include any Subsidiaries of the Borrower other than Restricted Subsidiaries.
(c) Notwithstanding
any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations
of amounts and ratios referred to herein shall be made, without giving effect to any election under the Financial Accounting Standards
Board’s Accounting Standards Codification No. 825—Financial Instruments, or any successor thereto (including pursuant
to the Accounting Standards Codification), to value any Indebtedness of Holdings, the Borrower or any Subsidiary at “fair value”
as defined therein.
(d) For
the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business in respect of which a definitive agreement
for the Disposition thereof has been entered into as discontinued operations, the Net Income of such Person or business shall not be excluded
from the calculation of Net Income until such Disposition shall have been consummated.
1.4 Rounding.
Any financial ratios required to be maintained or complied with by the 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).
1.5 References
to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organizational Documents, agreements
(including the Credit Documents) and other Contractual Obligations shall be deemed to include all subsequent amendments, restatements,
amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements,
amendment and restatements, extensions, supplements and other modifications are permitted by this Agreement; and (b) references to
any Applicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting
such Applicable Law.
1.6 Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard,
as applicable, for times of the day in New York City, New York).
1.7 Timing
of Payment or Performance. Except as otherwise provided herein, when the payment of any obligation or the performance of any
covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such
payment (other than as described in Section 2.5 or Section 2.9) or performance shall extend to the immediately succeeding
Business Day.
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1.8
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Currency Equivalents Generally.
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(a) For
purposes of any determination under Section 9, Section 10 (other than for purposes of calculating the Consolidated First Lien
Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated
EBITDA Ratio or the Consolidated EBITDA to Consolidated Interest Expense Ratio) or Section 11 or any determination under any other
provision of this Agreement requiring the use of a current exchange rate, all amounts Incurred or proposed to be Incurred in currencies
other than Dollars shall be translated into Dollars at the Exchange Rate then in effect on the date of such determination; provided, however,
that (x) for purposes of determining compliance with Section 10 with respect to the amount of any Indebtedness, Investment,
Disposition, Restricted Payment or payment under Section 10.7 in a currency other than Dollars, no Default or Event of Default shall
be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment
is Incurred or Disposition, Restricted Payment or payment under Section 10.7 is made, (y) for purposes of determining compliance
with any Dollar-denominated restriction on the Incurrence of Indebtedness, if such Indebtedness is Incurred to Refinance other Indebtedness
denominated in a foreign currency, and such Refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated
at the relevant currency Exchange Rate in effect on the date of such Refinancing, such Dollar-denominated restriction shall be deemed
not to have been exceeded so long as the principal amount of the Indebtedness that is Incurred to Refinance such Indebtedness does not
exceed the principal amount (or accreted amount) of such Indebtedness being Refinanced, except by an amount equal to the accrued interest,
dividends and premium (including tender premiums), if any, thereon plus defeasance costs, underwriting discounts and other amounts paid
and fees and expenses (including OID, closing payments, upfront fees and similar fees) incurred in connection with such Refinancing plus
an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (z) for the avoidance of doubt,
the foregoing provisions of this Section 1.8 shall otherwise apply to such Sections, including with respect to determining whether
any Indebtedness or Investment may be Incurred or Disposition, Restricted Payment or payment under Section 10.7 may be made at any
time under such Sections. For purposes of calculating the Consolidated First Lien Debt to Consolidated EBITDA Ratio, the Consolidated
Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated EBITDA Ratio and the Consolidated EBITDA to Consolidated
Interest Expense Ratio, amounts in currencies other than Dollars shall be translated into Dollars at the applicable exchange rates used
in preparing the most recently delivered financial statements pursuant to Section 9.1(a) or (b), or, prior to the delivery of
such financial statements, the financial statements delivered pursuant to Section 6.9.
(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 Borrower’s consent (such consent not to be unreasonably withheld) to appropriately reflect a change in currency
of any country and any relevant market conventions or practices relating to such change in currency.
1.9 Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving
Credit Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Credit Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Credit Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Credit Borrowing”).
1.10 Letter
of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar
equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of
Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar equivalent of the maximum stated amount of such Letter
of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
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1.11
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Limited Condition Acquisitions.
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(a) In
connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with
any provision of this Agreement that requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred,
is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrower, be deemed satisfied,
so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date on which the definitive acquisition
agreements for such Limited Condition Acquisition are entered. For the avoidance of doubt, if the Borrower has exercised its option under
the first sentence of this clause (a), and any Default, Event of Default or specified Event of Default occurs following the date on which
the definitive acquisition agreements for the applicable Limited Condition Acquisition were entered into and prior to or on the date of
the consummation of such Limited Condition Acquisition, any such Default, Event of Default or specified Event of Default shall be deemed
to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition
Acquisition is permitted hereunder.
(b) In
connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining
compliance with any provision of this Agreement which requires the calculation of the Consolidated First Lien Debt to Consolidated EBITDA
Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated EBITDA Ratio or the Consolidated
EBITDA to Consolidated Interest Expense Ratio; or
(ii) testing
baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA);
in each case, at the option of
the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA
Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date on which
the definitive acquisition agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”),
and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection
therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the Test
Period most recently ended on or prior to the applicable LCA Test Date, the Borrower could have taken such action on the relevant LCA
Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance
of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of
the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated
EBITDA of the Borrower or the Person subject to such Limited Condition Acquisition, on or prior to the date of consummation of the relevant
transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower
has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or test
with respect to the Incurrence of Indebtedness or Liens, or the making of distributions or Restricted Payments, Investments, payments
pursuant to Section 10.7, Dispositions, mergers, Dispositions of all or substantially all of the assets of the Borrower or the designation
of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition
Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation
of such Limited Condition Acquisition, any such ratio or test shall be calculated on a pro forma basis assuming such Limited Condition
Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof)
have been consummated.
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1.12
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Pro Forma and Other Calculations.
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(a) Notwithstanding
anything to the contrary herein, financial ratios and tests (including measurements of Consolidated EBITDA), including the Consolidated
EBITDA to Consolidated Interest Expense Ratio, Consolidated First Lien Debt to Consolidated EBITDA Ratio, Consolidated Secured Debt to
Consolidated EBITDA Ratio and Consolidated Total Debt to Consolidated EBITDA Ratio shall be calculated in the manner prescribed by this
Section 1.12; provided that, notwithstanding anything to the contrary in clauses (b), (c), (d) or of
this Section 1.12, when calculating the Consolidated First Lien Debt to Consolidated EBITDA Ratio for purposes of (i) the definition
of “Applicable Margin,” and (ii) Sections 5.2(a)(i) and 5.2(a)(ii), the events described in this Section 1.12
that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect; provided, however,
that for purposes of any determination under the proviso to Section 5.2(a)(ii), Consolidated First Lien Debt shall be determined
after giving pro forma effect to any voluntary prepayments of Term Loans made pursuant to Section 5.1 after the end of the Borrower’s
most recently ended full fiscal year and prior to the date of the applicable payment to be made pursuant to such Section 5.2(a)(ii) assuming
such voluntary prepayments had been made on the last day of such fiscal year. In addition, whenever a financial ratio or test is to be
calculated on a pro forma basis or requires pro forma compliance, the reference to “Test Period” for purposes of calculating
such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which
Section 9.1 Financials have been delivered.
(b) For
purposes of calculating any financial ratio or test (including Consolidated Total Assets or Consolidated EBITDA), Specified Transactions
(with any Incurrence or Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.12)
that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously
with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified
Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to
any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total Assets or
“unrestricted” cash and Cash Equivalents, on the last day of the applicable Test Period). If, since the beginning of any applicable
Test Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower
or any Restricted Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required
adjustment pursuant to this Section 1.12, then such financial ratio or test (including Consolidated Total Assets and Consolidated
EBITDA) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12.
(c) Whenever
pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction or a Specified Restructuring, the
pro forma calculations shall be made in good faith by an Authorized Officer of the Borrower and may include, for the avoidance of doubt,
the amount of “run rate” cost savings, operating expense reductions and cost synergies and other synergies projected by the
Borrower in good faith to result from or relating to any Specified Transaction (including the Transactions) or Specified Restructuring
that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are
expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions, cost synergies
or other synergies have been taken, have been committed to be taken, with respect to which substantial steps have been taken or which
are expected to be taken (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings,
operating expense reductions, cost synergies and other synergies had been realized on the first day of such period and as if such cost
savings, operating expense reductions, cost synergies and other synergies were realized during the entirety of such period and “run
rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken,
any action with respect to which substantial steps have been taken or any action that is expected to be taken (including any savings
expected to result from the elimination of Public Company Costs, if any) net of the amount of actual benefits realized during such period
from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests
and during any subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction
or Specified Transaction, and any such adjustments included in the initial pro forma calculations shall continue to apply to subsequent
calculations of such financial ratios or tests, including during any subsequent test periods in which the effects thereof are expected
to be realizable; provided that (A) such amounts are reasonably identifiable in the good faith judgment of the Borrower, (B) such
actions are taken, such actions are committed to be taken, substantial steps with respect to such action have been taken or such actions
are expected to be taken no later than eight fiscal quarters after the date of consummation of such Specified Transaction or the date
of initiation of such Specified Restructuring (or, with respect to the Transactions, eight fiscal quarters) and (C) no amounts shall
be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components
thereof), whether through a pro forma adjustment or otherwise, with respect to such period.
(d) In
the event that the Borrower or any Restricted Subsidiary Incurs (including by assumption or guarantee) or Refinances (including by redemption,
repurchase, repayment, retirement or extinguishment) any Indebtedness, in each case included in the calculations of any financial ratio
or test, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously
with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma
effect to such Incurrence or Refinancing of Indebtedness (including pro forma effect to the application of the net proceeds therefrom),
in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of
the Consolidated EBITDA to Consolidated Interest Expense Ratio (or similar ratio), in which case such Incurrence or Refinancing of Indebtedness
will be given effect, as if the same had occurred on the first day of the applicable Test Period); provided that, with respect
to any Incurrence of Indebtedness permitted by the provisions of this Agreement in reliance on the pro forma calculation of the Consolidated
First Lien Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated EBITDA to Consolidated
Interest Expense Ratio and/or the Consolidated Total Debt to Consolidated EBITDA Ratio, as applicable, pro forma effect shall not be given
to any Indebtedness being Incurred (or expected to be Incurred) substantially simultaneously or contemporaneously with the Incurrence
of any such Indebtedness in reliance on any “basket” set forth in this Agreement (including the Incremental Base Amount, any
“baskets” measured as a percentage of Consolidated EBITDA) including any Credit Event under the Revolving Credit Facility
or, except to the extent expressly required to be calculated otherwise in Section 2.14 or Section 10.1(u), any Additional/Replacement
Revolving Credit Facility.
(e) Whenever
pro forma effect is to be given to a pro forma event, the pro forma calculations shall be made in good faith by an Authorized Officer
of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness
shall be calculated as if the rate in effect on the date of the event for which the calculation of the Consolidated EBITDA to Consolidated
Interest Expense Ratio is made had been the applicable rate for the entire period (taking into account any interest Hedging Agreements
applicable to such Indebtedness). To the extent interest expense generated by Hedging Obligations that have been terminated is included
in Consolidated Interest Expense prior to the date of the event for which the calculation of the Consolidated EBITDA to Consolidated Interest
Expense Ratio is being made, Consolidated Interest Expense shall be adjusted to exclude such expense. Interest on a Financing Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined by an Authorized Officer of the Borrower to be the rate of interest
implicit in such Financing Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined
to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or applicable
Restricted Subsidiary may designate. For purposes of making the computations referred to above, interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable
period or, if lower, the maximum commitments under such revolving credit facility as of the date of the event for which the calculation
of the Consolidated EBITDA to Consolidated Interest Expense Ratio is being made, except as set forth in Section 1.12(d).
(f) Any
such pro forma calculation may include, without limitation, (1) all adjustments of the type described in clause (a)(viii) of
the definition of “Consolidated EBITDA” to the extent such adjustments, without duplication, continue to be applicable to
such Test Period, and (2) adjustments calculated in accordance with Regulation S-X under the Securities Act.
SECTION 2. Amount
and Terms of Credit Facilities.
(a) Subject
to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make
(or in the case of any Rollover Lender (as defined in the First Incremental Agreement) on the First Incremental Agreement
Effective Date, be deemed to make) (or in the case of any Rollover
Lender (as defined in the Second Incremental Agreement) on the Second Incremental Agreement Effective Date, be deemed to
make) a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (i) shall not
exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the
Total Initial Term Loan Commitment, (iii) shall be made (x) in the case of Initial Term Loans made in respect of Initial
Term Loan Commitments described in clause (a) of the definition of Initial Term Loan Commitments, on the Closing Date, and (y) in
the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (b) of the definition of
Initial Term Loan Commitments, on the First Incremental Agreement Effective Date, and
(z) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (c) of the
definition of Initial Term Loan Commitments, on the Second Incremental Agreement Effective Date, (iv) shall be
denominated in Dollars, (v) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans
or Eurodollar Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing
shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (vi) may be repaid or
prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan
Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(b) (i) Subject
to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a
“Revolving Credit Loan”) to the Borrower in U.S. Dollars, which Revolving Credit Loans (A) shall not exceed, for
any such Lender, the Revolving Credit Commitment of such Lender, (B) shall not, after giving pro forma effect thereto and to the
application of the proceeds thereof, result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s
Revolving Credit Commitment at such time, (C) shall not, after giving pro forma effect thereto and to the application of the proceeds
thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit
Commitment then in effect, (D) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving
Credit Maturity Date (provided that notwithstanding the foregoing, the aggregate amount of all Revolving Credit Loans made on the
Closing Date shall not exceed the Initial Revolving Borrowing Amount), (E) may at the option of the Borrower be Incurred and maintained
as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders
pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the
same Type and (F) may be repaid and reborrowed in accordance with the provisions hereof.
(ii)
On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full
and the Revolving Credit Commitments shall terminate.
(c) Each
Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Eurodollar
Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Eurodollar
Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower
resulting therefrom (which obligation of the 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 determines would be otherwise disadvantageous to it
and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10
shall apply).
(d) (i) Subject
to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from
time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a
“Swingline Loan”) to the Borrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans,
(B) shall have the benefit of the provisions of Section 2.1(d)(ii), (C) shall not exceed at any time outstanding the
Swingline Commitment, (D) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof,
result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit
Commitment then in effect, (E) may be repaid and reborrowed in accordance with the provisions hereof and (F) shall mature
no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding
Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice
from either the Borrower or the Administrative Agent stating that a Default or an Event of Default exists and is continuing until
such time as the Swingline Lender shall have received written notice (x) of rescission of all such notices from the party or
parties originally delivering such notice, (y) of the waiver of such Default or Event of Default in accordance with the
provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer
continuing.
(ii) On
any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower,
that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans
constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day by all
Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall
be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit
Lender hereby irrevocably agrees to make such Revolving Credit Loans upon same Business Days’ notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline
Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified
in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or
an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total
Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender,
any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement
of a proceeding under any Debtor Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith
purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary
to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages;
provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until
the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to
the Lender purchasing the same from and after such date of purchase.
(iii) The
Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Lenders
that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender
hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent
and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective
date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this
Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit
Lender in its capacity as a lender of Swingline Loans hereunder.
(iv) The
Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice
thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier
of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date
of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline
Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall
remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans
made by it prior to such termination, but shall not make any additional Swingline Loans.
2.2 Minimum
Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing of Term Loans or
Revolving Credit Loans shall be in a multiple of $500,000 (or, in the case of a Borrowing of Revolving Credit Loans on the Closing
Date, $100,000), and Swingline Loans shall be in a multiple of $100,000, and, in each case, shall not be less than the Minimum
Borrowing Amount with respect for such Type of Loans (except that that Mandatory Borrowings shall be made in the amounts required by
Section 2.1(d) and Revolving Credit Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing
shall be made in the amounts required by Section 3.3 or Section 3.4, as applicable). More than one Borrowing may be
Incurred on any date; provided that at no time shall there be outstanding more than twelve (12) Eurodollar Borrowings under
this Agreement (which number of Eurodollar Borrowings may be increased or adjusted by agreement between the Borrower and the
Administrative Agent in connection with any Incremental Facility or Extended Loans/Commitments). For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate
Borrowings.
(a)
The Borrower shall give the Administrative Agent at the Administrative Agent’s Office (i) prior to 1:00 p.m. (New York City
time) at least three Business Days’ prior written notice of the Borrowing of Initial Term Loans or any Borrowing of
Incremental Term Loans (unless otherwise set forth in the applicable Incremental Agreement), as the case may be, if all or any of
such Term Loans are to be initially Eurodollar Loans and (ii) written notice prior to 12:00 p.m. (New York City time) on
the date of the Borrowing of Initial Term Loans or any Borrowing of Incremental Term Loans, as the case may be, if all or any of
such Term Loans are to be ABR Loans. Such notice (together with each notice of a Borrowing of Revolving Credit Loans pursuant to
Section 2.3(b) and each notice of a Borrowing of Swingline Loans pursuant to Section 2.3(c), a “Notice of
Borrowing”) shall be in substantially the form of Exhibit D and shall specify (i) the aggregate principal amount
of the Initial Term Loans or Incremental Term Loans, as the case may be, to be made, (ii) the date of the Borrowing (which
shall be, (xw)
in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (a) of the definition of
Initial Term Loan Commitments, the Closing Date, (yx)
in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (b) of the definition of
Initial Term Loan Commitments, the First Incremental
Agreement Effective Date, (y) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in
clause (c) of the definition of Initial Term Loan Commitments, the Second Incremental
Agreement Effective Date, and, (z) in the case of Incremental Term Loans, the applicable Incremental Facility Closing Date in
respect of such Class) and (iii) whether the Initial Term Loans or Incremental Term Loans, as the case may be, shall consist of
ABR Loans and/or Eurodollar Loans and, if the Initial Term Loans or Incremental Term Loans, as the case may be, are to include
Eurodollar Loans, the Interest Period to be initially applicable thereto; provided that the Notice of Borrowing for a Borrowing of
Term Loans shall be revocable so long as the Borrower agrees to comply with the applicable provisions of Section 2.11 upon any
such revocation. The Administrative Agent shall promptly give each Lender written notice of each proposed Borrowing of Initial Term
Loans or Incremental Term Loans, as the case may be, of such Lender’s proportionate share thereof and of the other matters
covered by the related Notice of Borrowing.
(b) Whenever
the Borrower desires to Incur Revolving Credit Loans hereunder (other than Mandatory Borrowing or borrowings to repay Unpaid Drawings
under Letters of Credit), it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to 1:00 p.m. (New
York City time) at least three Business Days’ prior written notice of each Borrowing of Revolving Credit Loans that are to be initially
Eurodollar Loans and (ii) prior to 1:00 p.m. (New York City time) on the date of such Borrowing prior written notice of each
Borrowing of Revolving Credit Loans that are to be ABR Loans. Each such Notice of Borrowing, except as otherwise expressly provided in
Section 2.10, shall be irrevocable and shall specify (i) the aggregate principal amount of the Revolving Credit Loans to be
made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective
Borrowing shall consist of ABR Loans and/or Eurodollar Loans, and, if Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall promptly give each Lender written notice of each proposed Borrowing of Revolving Credit Loans,
of such Lender’s proportionate share thereof and of the other matters covered by the related Notice of Borrowing.
(c) Whenever
the Borrower desires to Incur Swingline Loans hereunder, the Borrower shall give the Administrative Agent written notice of each Borrowing
of Swingline Loans prior to 3:00 p.m. (New York City time) or such later time as agreed by the Swingline Lender on the date of such
Borrowing. Each such Notice of Borrowing shall specify (i) the aggregate principal amount of the Swingline Loans to be made pursuant
to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day). The Administrative Agent shall promptly give the
Swingline Lender written notice of each proposed Borrowing of Swingline Loans and of the other matters covered by the related Notice of
Borrowing.
(d) Mandatory
Borrowings shall be made upon the notice specified in Section 2.1(d)(ii) with the Borrower irrevocably agreeing, by its Incurrence
of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings
of Revolving Credit Loans to reimburse Unpaid Drawings under Letters of Credit shall be made upon the terms set forth in Section 3.3
or Section 3.4(a).
(f) If
the Borrower fails to specify a Type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as Eurodollar Loans with
an Interest Period of one (1) month. If the Borrower requests a Borrowing of Eurodollar Loans, in any such Notice of Borrowing, but
fails to specify an Interest Period (or fails to give a timely notice requesting a continuation of Eurodollar Loans), it will be deemed
to have specified an Interest Period of one (1) month.
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2.4
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Disbursement of Funds.
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(a) No
later than the later of 12:00 p.m. (New York City time) on the date specified in each Notice of Borrowing (including Mandatory Borrowings
and Borrowings to reimburse Unpaid Drawings under Letters of Credit) and two hours after written notice of such Borrowing is delivered
by the Administrative Agent to such Lender, each Lender will make available its pro rata portion, if any, of each Borrowing
requested to be made on such date in the manner provided below; provided that on the Closing Date (or, with respect to any Incremental
Facilities, on the relevant Incremental Facilities Closing Date), such funds may be made available at such earlier time as may be agreed
among the relevant Lenders, the Borrower and the Administrative Agent for the purpose of consummating the Transactions; provided, further,
that all Swingline Loans shall be made available to the Borrower in the full amount thereof by the Swingline Lender no later than two
hours after written notice of such Borrowing is delivered by the Administrative Agent to the Swingline Lender.
(b) (i) Each
Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments in immediately
available funds to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except in the
case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings under Letters of Credit) make available to the Borrower by depositing
to an account designated by the Borrower to the Administrative Agent in writing, the aggregate of the amounts so made available in Dollars.
Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not
intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower
a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available same to the Borrower, the Administrative Agent shall be entitled to recover such corresponding
amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount
to the Administrative Agent in Dollars. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower, as
the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (i) if paid by such Lender, the Federal Funds Effective Rate, or (ii) if paid by the Borrower, the then-
applicable rate of interest, calculated in accordance with Section 2.8, for the respective Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing
to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.
(ii) The
Swingline Lender shall make available all amounts it is to fund to the Borrower under any Borrowing of Swingline Loans in immediately
available funds to the Borrower (as specified in the applicable Notice of Borrowing), by depositing to an account designated by the Borrower
to the Swingline Lender in writing or otherwise in such Notice of Borrowing, the aggregate of the amount so made available.
(c) Nothing
in this Section 2.4, including any payment by the Borrower, shall be deemed to relieve any Lender from its obligation to
fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any
default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other
Lender to fulfill its commitments hereunder).
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2.5
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Repayment of Loans; Evidence of Debt.
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(a) The
Borrower agrees to repay to the Administrative Agent, for the benefit of the applicable Lenders, (i) on the Initial Term Loan Maturity
Date, all then outstanding Initial Term Loans, (ii) on the relevant Incremental Term Loan Maturity Date for any Class of Incremental
Term Loans, any then outstanding Incremental Term Loans of such Class, (iii) on the Revolving Credit Maturity Date, the then outstanding
Revolving Credit Loans, (iv) on the relevant maturity date for any Class of Additional/Replacement Revolving Credit Commitments,
all then outstanding Additional/Replacement Revolving Credit Loans of such Class, (v) on the relevant maturity date for any Class of
Extended Term Loans, all then outstanding Extended Term Loans of such Class, (vi) on the relevant maturity date for any Class of
Extended Revolving Credit Commitments, all then outstanding Extended Revolving Credit Loans of such Class and (vii) on the Swingline
Maturity Date, the then outstanding Swingline Loans.
(b) The
Borrower shall repay to the Administrative Agent, in Dollars, for the ratable benefit of the Initial Term Loan Lenders, on the last
Business Day of each March, June, September and December, beginning March December 31,
2018 (each, an “Initial Term Loan Repayment Date”), a principal amount of the Initial Term Loans equal to
(i) the product of (x) the aggregate principal amount of Initial Term Loans outstanding immediately after the Borrowing of
Tranche BC Term
Loans on the First Second Incremental Agreement Effective
Date multiplied by (y) 0.25% (with respect to each Initial Term Loan Repayment Date prior to the Initial Term Loan Maturity
Date, as such product may be reduced by, and after giving pro forma effect to, any voluntary and mandatory prepayments made in
accordance with Section 5 or as contemplated by Section 2.15) or (ii) the aggregate principal amount of Initial Term
Loans then outstanding (with respect to the Initial Term Loan Maturity Date) (each amount, an “Initial Term Loan Repayment
Amount”).
(c) In
the event any Incremental Term Loans are made, such Incremental Term Loans shall mature and be repaid in amounts and on dates as agreed
between the Borrower and the relevant Lenders of such Incremental Term Loans in the applicable Incremental Agreement, subject to the requirements
set forth in Section 2.14. In the event that any Extended Term Loans are established, such Extended Term Loans shall, subject to
the requirements of Section 2.15, mature and be repaid by the Borrower in the amounts (each such amount, an “Extended Term
Loan Repayment Amount”) and on the dates (each an “Extended Repayment Date”) set forth in the applicable
Extension Agreement. In the event any Extended Revolving Credit Commitments are established, such Extended Revolving Credit Commitments
shall, subject to the requirements of Section 2.15, be terminated (and all Extended Revolving Credit Loans of the same Extension
Series repaid) on dates set forth in the applicable Extension Agreement.
(d) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such lending office of such Lender from time to time, including
the amounts of principal and interest payable and paid to such lending office of such Lender from time to time under this Agreement.
(e)
The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 13.6(b)(v), and a subaccount
for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder,
whether such Loan is an Initial Term Loan, an Incremental Term Loan (and the relevant Class thereof), a Revolving Credit Loan, an
Additional/Replacement Revolving Credit Loan (and the relevant Class thereof), an Extended Term Loan (and the relevant
Class thereof), an Extended Revolving Credit Loan (and the relevant Class thereof), or a Swingline Loan, as applicable,
the Type of each Loan made 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 Borrower to each Lender or the Swingline Lender hereunder, (iii) the amount of
any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof and (iv) any
cancellation or retirement of Loans contemplated by Section 13.6(i).
(f) The
entries made in the Register and accounts and subaccounts maintained pursuant to paragraphs (d) and (e) of this Section 2.5
shall, to the extent permitted by Applicable Law, be prima facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded and, in the case of the Register, shall be conclusive absent manifest error; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower
in accordance with the terms of this Agreement.
(g) For
the avoidance of doubt, all Loans shall be repaid, whether pursuant to this Section 2.5 or otherwise, in Dollars.
(h) For
the avoidance of doubt, the Tranche BC Term
Loans made on the FirstSecond Incremental Agreement Effective Date (x) shall
constitute the Initial Term Loans for all purposes of this Agreement, (y) shall mature and shall become due and payable on the
Initial Term Loan Maturity Date and (z) shall be repaid in quarterly installments in accordance with Section 2.5(b).
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2.6
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Conversions and Continuations.
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(a) The
Borrower shall have the option on any Business Day, subject to Section 2.11, to convert all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Term Loans, Revolving Credit Loans, Additional/Replacement Revolving Credit Loans
or Extended Revolving Credit Loans of one Type into a Borrowing or Borrowings of another Type and except as otherwise provided herein
the Borrower shall have the option on the last day of an Interest Period to continue the outstanding principal amount of any Eurodollar
Loans as Eurodollar Loans for an additional Interest Period; provided that (i) no partial conversion of Eurodollar Loans
shall reduce the outstanding principal amount of Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum Borrowing
Amount, (ii) ABR Loans may not be converted into Eurodollar Loans if an Event of Default is in existence on the date of the conversion
and the Administrative Agent has, or the Required Lenders have, determined in its or their sole discretion not to permit such conversion,
(iii) Eurodollar Loans may not be continued as Eurodollar Loans for an additional Interest Period if an Event of Default is in existence
on the date of the proposed continuation and the Administrative Agent has, or the Required Lenders have, determined in its or their sole
discretion not to permit such continuation, and (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall
be limited in number as provided in Section 2.2. Each such conversion or continuation shall be effected by the Borrower giving the
Administrative Agent at the Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least (i) three
Business Days’, in the case of a continuation of, or conversion to, Eurodollar Loans or (ii) the same Business Day in the
case of a conversion into ABR Loans), prior written notice (each a “Notice of Conversion or Continuation”) specifying
the Loans to be so converted or continued, the Type of Loans to be converted or continued, the requested date of the conversion or continuation,
as the case may be (which shall be a Business Day), the principal amount of Loans to be converted or continued, as the case may be, and
if such Loans are to be converted into or continued as Eurodollar Loans, the Interest Period to be initially applicable thereto. If the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made or continued
as the same Type of Loan, which if a Eurodollar Loan, shall have a one-month Interest Period. Any such automatic continuation shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Loans. If the Borrower requests
a conversion to, or continuation of, Eurodollar Loans in any such Notice of Conversion or Continuation, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one (1) month’s duration. Notwithstanding anything to the
contrary herein, a Swingline Loan may not be converted to a Eurodollar Loan. The Administrative Agent shall give each applicable Lender
notice as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b) If
any Event of Default is in existence at the time of any proposed continuation of any Eurodollar Loans and the Administrative Agent has,
or the Required Lenders have, determined in its or their sole discretion not to permit such continuation, Eurodollar Loans shall be automatically
converted on the last day of the current Interest Period into ABR Loans.
2.7 Pro
Rata Borrowings. Each Borrowing of Initial Term Loans under this Agreement shall be granted by the Lenders pro rata on
the basis of their then-applicable Initial Term Loan Commitments. Each Borrowing of Revolving Credit Loans under this Agreement
shall be granted by the Revolving Credit Lenders pro rata on the basis of their then-applicable Revolving Credit Commitment
Percentages with respect to the applicable Class. Each Borrowing of Incremental Term Loans under this Agreement shall be granted by
the Lenders of the relevant Class thereof pro rata on the basis of their then-applicable Incremental Term Loan
Commitments for the applicable Class. Each Borrowing of Additional/Replacement Revolving Credit Loans under this Agreement shall be
granted by the Lenders of the relevant Class thereof pro rata on the basis of their then-applicable
Additional/Replacement Revolving Credit Commitments for the applicable Class. Each Borrowing of Extended Revolving Credit Loans
under this Agreement shall be granted by the Lenders of the relevant Class thereof pro rata on the basis of their
then-applicable Extended Revolving Credit Commitments for the applicable Class. It is understood that (a) no Lender shall be
responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender, severally and not
jointly, shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to
fulfill its commitments hereunder, and (b) other than as expressly provided herein with respect to a Defaulting Lender, failure
by a Lender to perform any of its obligations under any of the Credit Documents shall not release any Person from performance of its
obligations under any Credit Document.
(a) The
unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration
or otherwise) at a rate per annum that shall at all times be the Applicable Margin in effect from time to time plus the ABR in
effect from time to time.
(b) The
unpaid principal amount of each Eurodollar Loan shall bear interest from the date of the Borrowing thereof until maturity thereof (whether
by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin in effect from time to time plus
the relevant Eurodollar Rate in effect from time to time.
(c) If
at any time after the occurrence of and during the continuance of an Event of Default under Section 11.1 or Section 11.5, all
or a portion of the principal amount of any Loan or any interest payable thereon or any fees or other amounts due hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest (including post-petition
interest in any proceeding under any applicable Debtor Relief Law) at a rate per annum that is (i) in the case of overdue principal,
the rate that would otherwise be applicable thereto plus 2% or (ii) in the case of overdue interest, fees or other amounts
due hereunder, to the extent permitted by Applicable Law, the rate described in Section 2.8(a) plus 2% from and including
the date of such non-payment to but excluding the date on which such amount is paid in full. All such interest shall be payable on demand.
(d) Interest
on each Loan shall accrue from and including the date of any Borrowing to but excluding the date of any repayment thereof, and shall be
payable in Dollars and, except as otherwise provided below, shall be payable (i) in respect of each ABR Loan, quarterly in arrears
on the last Business Day of each March, June, September and December, (ii) in respect of each Eurodollar Loan, on the last day
of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at
three-month intervals after the first day of such Interest Period, and (iii) in respect of each Loan (except in the case of prepayments
of any ABR Revolving Credit Loans that are not made in connection with the termination or permanent reduction of the Revolving Credit
Commitments), on any prepayment date (on the amount prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity,
on demand; provided that a Loan that is repaid on the same day on which it is made shall bear interest for one day.
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(e)
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All computations of interest hereunder shall be made in accordance with Section 5.5.
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(f) The
Administrative Agent, upon determining the interest rate for any Borrowing of Eurodollar Loans shall promptly notify the Borrower and
the relevant Lenders thereof. Each such determination shall, absent clearly demonstrable error, be final and conclusive and binding on
all parties hereto.
(g) Except
as otherwise provided herein, whenever any payment hereunder or under the other Credit Documents shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment or letter of credit fee or commission, as the case may be.
2.9 Interest
Periods. At the time the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect of the making of,
or conversion into, or continuation as, a Borrowing of Eurodollar Loans (in the case of the initial Interest Period applicable thereto)
on or prior to 1:00 p.m. (New York City time) on the third Business Day prior to the expiration of an Interest Period applicable
to a Borrowing of Eurodollar Loans, the Borrower shall have the right to elect, by giving the Administrative Agent written notice, the
Interest Period applicable to such Borrowing, which Interest Period shall be the period commencing on the date of such Borrowing and ending
on the numerically corresponding day (or, if there is no numerically corresponding day, on the last Business Day) in the calendar month
that is one, two, three or six months thereafter (or, if agreed to by all relevant Lenders participating in the relevant Credit Facility,
twelve months thereafter or a period shorter than one month).
Notwithstanding anything to the contrary contained above:
(a) the
initial Interest Period for any Borrowing of Eurodollar Loans shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of ABR Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(b) 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;
(c) if
any Interest Period relating to a Borrowing of Eurodollar Loans begins on the last Business Day of a calendar month or begins on a day
for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of the calendar month at the end of such Interest Period;
(d) in
the case of Eurodollar Loans, interest shall accrue from and including the first day of an Interest Period to but excluding the last day
of such Interest Period; and
(e) the
Borrower shall not be entitled to elect any Interest Period in respect of any Eurodollar Loan if such Interest Period would extend beyond
the applicable Maturity Date of such Loan.
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2.10
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Increased Costs, Illegality, Etc.
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(a) In
the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and
(iii) below, any Lender, shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final
and conclusive and binding upon all parties hereto):
(i) on
any date for determining the Eurodollar Rate for any Interest Period that (x) deposits in the principal amounts of the Loans comprising
any Borrowing of Eurodollar Loans are not generally available in the relevant market or (y) by reason of any changes arising on or
after the Closing Date affecting the London interbank eurocurrency market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) that,
due to a Change in Law, which shall (A) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender
(except any reserve requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any Tax
(other than (1) Taxes indemnifiable under Section 5.4, (2) Excluded Taxes or (3) Taxes described in
Section 5.4(f)) on its loans, loan principal, letters of credits, commitments or other obligations, or its deposits, reserves,
other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank eurocurrency market any
other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender (other than Taxes), which results
in the cost to such Lender of making, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of
Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or
receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at
any time after the Closing Date, that the making or continuance of any Eurodollar Loan has become unlawful by compliance by such Lender
in good faith with any Applicable Law (or would conflict with any such Applicable Law not having the force of law even though the failure
to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date
that materially and adversely affects the London interbank eurocurrency market;
then, and in any such event, such Lender (or the Administrative Agent,
in the case of clause (i) above) shall within a reasonable time thereafter give written notice to the Borrower and the Administrative
Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies
the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice
the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of
Conversion or Continuation given by the Borrower with respect to Eurodollar Loans that have not yet been Incurred shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender, promptly (but no later than ten
Business Days) after receipt of written demand therefor such additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as shall be required to compensate
such Lender for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional
amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender
shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of clause
(iii) above, the Borrower shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any
event, within the time period required by Applicable Law.
(b) At
any time that any Eurodollar Loan is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may
(and in the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the affected Eurodollar
Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent written notice thereof on the
same date that the Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected
Lender to convert each such Eurodollar Loan into an ABR Loan, if applicable; provided that if more than one Lender is affected
at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).
(c) If,
any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return
on such Lender’s or Letter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of
such Lender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender
or Letter of Credit Issuer or their respective parent could have achieved but for such Change in Law (taking into consideration such
Lender’s or Letter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy or
liquidity), then from time to time, promptly (but no later than ten Business Days) after written demand by such Lender or Letter of
Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such
additional amount or amounts as will compensate such Lender or Letter of Credit Issuer or their respective parent for such
reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such
compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or
directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each
Lender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this
Section 2.10(c), will give prompt written notice thereof to the Borrower (on its own behalf) which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not,
subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this
Section 2.10(c) upon receipt of such notice.
(d) If
the Borrower and the Administrative Agent reasonably determine in good faith that an interest rate is not ascertainable pursuant to the
provisions of the definition of "“Eurodollar
Rate"”or
"“Reference
Rate"”
and the inability to ascertain such rate is unlikely to be temporary, the "“Eurodollar
Rate"” and "“Reference
Rate"” shall be an alternate
rate that is reasonably commercially practicable for the Administrative Agent to administer (as determined by the Administrative Agent
in its reasonable discretion) that is either: (i) an alternate rate established by the Administrative Agent and the Borrower that
is generally accepted as the then prevailing market convention for determining a rate of interest for syndicated leveraged loans of this
type in the United States at such time, in which case, the Administrative Agent and the Borrower shall enter into an amendment to this
Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (including
the making of appropriate adjustments to such alternate rate and this Agreement (x) to preserve pricing in effect at the time of
selection of such alternate rate (but for the avoidance of doubt which would not reduce the Applicable Margin) and (y) other changes
necessary to reflect the available interest periods for such alternate rate) (the "“Market
Convention Rate"”)
or (ii) if a Market Convention Rate is not available in the reasonable determination of the Administrative Agent and the Borrower
acting in good faith, an alternate rate, at the option of the Borrower, either (x) established by the Administrative Agent and the
Borrower, so long as the Lenders shall have received at least five Business Days' prior written notice thereof (the "“Notice
Period"”),
in which case, the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate
of interest and such other related changes to this Agreement as may be applicable; provided that such alternate rate shall not
apply to (and any such amendment shall not be effective with respect to) any Class for which the Administrative Agent has received
a written objection within the Notice Period from the Required Lenders of such Class (with the Required Lenders of such Class determined
as if such Class of Lenders were the only Class of Lenders hereunder at the time), or (y) selected by the Borrower and
the Required Lenders of any applicable Class (with the Required Lenders of such Class determined as if such Class of Lenders
were the only Class of Lenders hereunder at the time) solely with respect to such Class, in which case, the Required Lenders of
such Class and the Borrower shall, subject to 15 Business Days' prior written notice to the Administrative Agent, enter into an
amendment to this Agreement to reflect such alternate rate of interest for such Class and make such other related changes to this
Agreement as may be necessary to reflect such alternate rate applicable to such Class) (any such alternate rate so established in accordance
with the foregoing provisions of this clause (d), the "“Successor
Benchmark Rate"”);
provided that, in the case of each of clauses (i) and (ii), any such amendment shall become effective without any further action
or consent of any other party to this Agreement, notwithstanding anything to the contrary in Section 13.1; provided, further, that
until such Successor Benchmark Rate has been determined pursuant to this paragraph, (A) any request for Borrowing, the conversion
of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (B) all outstanding Borrowings
shall be converted to an ABR Borrowing.
(e) This
Section 2.10 shall not operate to provide payments that are duplicative of those required under Section 5.4.
(f) The
agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(g) Notwithstanding
the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the occurrence
of a Change in Law arising solely from (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act or any requests, rules,
guidelines or directives thereunder or issued in connection therewith or (y) Basel III or any requests, rules, guidelines or directives
thereunder or issued in connection therewith, unless such Lender or Letter of Credit Issuer is generally seeking compensation from other
borrowers in the U.S. leveraged loan market with respect to its similarly affected commitments, loans and/or participations under agreements
with such borrowers having provisions similar to this Section 2.10.
2.11 Compensation.
If (a) any payment of principal of a Eurodollar Loan is made by the Borrower to or for the account of a Lender other than on
the last day of the Interest Period for such Eurodollar Loan as a result of a payment or conversion pursuant to Section 2.5,
2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the maturity of the Loans pursuant to Section 11 or for any other
reason, (b) any Borrowing of Eurodollar Loans is not made as a result of a withdrawn Notice of Borrowing or failure to satisfy
the conditions of Section 6 and Section 7, (c) any ABR Loan is not converted into a Eurodollar Loan as a result of a
withdrawn Notice of Conversion or Continuation, (d) any Eurodollar Loan is not continued as a Eurodollar Loan as a result of a
withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of a Eurodollar Loan is not made as a result
of a withdrawn notice of prepayment pursuant to Section 5.1 or 5.2, the Borrower shall, after receipt of a written request by
such Lender (which request shall set forth in reasonable detail the basis for requesting such amount and, absent clearly
demonstrable error, the amount requested shall be final and conclusive and binding upon all parties hereto), pay to the
Administrative Agent for the account of such Lender within ten Business Days of such request any amounts required to compensate such
Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to
borrow, failure to convert, failure to continue, failure to prepay, reduction or failure to reduce, including any loss, cost or
expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund or maintain such Eurodollar Loan. The agreements in this Section 2.11 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
2.12 Change
of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(c), 3.5 or 5.4 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event; provided
that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage,
with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.12
shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Section 2.10, 3.5 or 5.4.
2.13 Notice
of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Section 2.10,
2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has knowledge (or should have had knowledge) of the occurrence
of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described in such Sections,
such Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any such amounts
incurred or accruing prior to the giving of such notice to the Borrower; provided that, if the circumstance giving rise to such
claim is retroactive, then such 180 day period referred to above shall be extended to include the period of retroactive effect thereof.
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2.14
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Incremental Facilities.
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(a) The
Borrower may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent request
(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term
loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Credit Commitments
of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iii) one or
more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments,”
and, together with the Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities”
and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, subject
to Section 1.11, at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement
Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the proviso to clause
(b) below, no Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with an
Acquisition or similar Investment, no Event of Default under Section 11.1 or 11.5) shall have occurred and be continuing.
(b) Each
tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental
Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood
that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below)
(and, unless otherwise agreed by the Borrower and the Administrative Agent, in minimum
increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.14(b), following
the Second Incremental Agreement Effective Date the aggregate amount of
(x) the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving
Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this
Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt Incurred under
Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of
(A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to
Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction
or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment
Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (B) were
fully drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last
day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a pro forma
basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than either
(x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition or similar Investment, no greater than the Consolidated
First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment (this clause (B), the
“Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental
Limit”); provided that (i) Incremental Term Loans may be Incurred without regard to the Incremental Limit,
without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in the
first part of this 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of
Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to either (x) prepay Term Loans and related
amounts in accordance with the procedures set forth in Section 5.2(a)(i) or (y) permanently reduce the Revolving
Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in accordance with
the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred
pursuant to this proviso), and (ii) Additional/Replacement
Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in
the first sentence of this 2.14(b) and without regard to whether an Event of Default has occurred and is continuing, to the
extent that the existing Revolving Credit Commitments, Extended Revolving Credit Commitments or other Additional/Replacement
Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the
aggregate amount of Additional/Replacement Revolving Credit Commitments so provided (and any such Additional/Replacement Revolving
Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(c) (i) The
Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans, shall be secured only
by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit Parties on a senior basis,
(B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to
Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule
(subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO
Catch-Up Payments, funding discounts, original issue discounts, currency denomination and prepayment terms and premiums for the Incremental
Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during the period commencing
on the Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any Incremental Term
Loans (other than Incremental Term Loans (x) Incurred pursuant to clause (B) of Section 2.14(b), (y) established
pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition (clauses (x), (y) and
(z), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial Term Loans by more
than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield
for the Initial Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% (this proviso, the “MFN
Protection”); provided, further, that, with respect to any Incremental Term Loans that do not bear interest at
a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if any) in the Applicable
Margins for the Initial Term Loans in the immediately preceding proviso, the Applicable Margin for such Incremental Term Loans shall
be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately succeeding
proviso) of such Incremental Term Loans less the then applicable Reference Rate; and (E) may otherwise have terms and conditions
different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses
(B), (C) and (D) above, any differences shall be reasonably
satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity
Date) and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant
so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such
Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility.
(ii) The
Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments being increased
(including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being
increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate
margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and
additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase
(without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The
Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and security with the Revolving Credit
Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by the Credit
Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no scheduled amortization
or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest rates (including through
fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts,
currency denomination, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and
the lenders of such commitments; provided that, during the period commencing on the Closing Date and ending on first anniversary of the
Closing Date, in the event that the Effective Yield for any Additional/Replacement Revolving Credit Loans (other than Additional/Replacement
Revolving Credit Loans under any Additional/Replacement Revolving Credit Commitments (x) incurred pursuant to clause (B) of
Section 2.14(b), (y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with
an Acquisition or similar Investment) is greater than the Effective Yield for the Revolving Credit Loans by more than 0.50%, then the
Applicable Margins for the Revolving Credit Loans shall be increased to the extent necessary so that the Effective Yield for the Revolving
Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%; (D) shall
contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments,
(E) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances
shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith
and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders
of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment
procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating
to the Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Credit Commitments or otherwise reasonably
acceptable to the Administrative Agent and (F) may otherwise have terms and conditions different from those of the Revolving Credit
Facility; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above,
any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only
to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Credit Commitments
may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written
notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each
Credit Facility (provided, further, however, that, if the applicable Previously Absent Financial Maintenance Covenant
is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable
to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall be automatically included
in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility
hereunder)).
(d) Each
notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency
denomination and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement
Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement
Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or
delayed), by any existing Lender (it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation
to make a portion of any Incremental Term Loan, no existing Lender with a Revolving Credit Commitment will have any obligation to provide
a portion of any Incremental Revolving Credit Commitment Increase and no existing Lender with a Revolving Credit Commitment will have
an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution,
other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional
Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to
such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment
Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for
an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely
with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline
Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional
Lender’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments
if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender
or Additional Lender.
(e) Commitments
in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit
Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing
Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement
pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Credit Documents,
executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the
Administrative Agent. The Incremental Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect
such amendments to this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative
Agent and the Borrower, to effect the provisions of this Section (including (i) in connection with an Incremental Revolving
Credit Commitment Increase, to reallocate Revolving Credit Exposure on a pro rata basis among the relevant Revolving Credit Lenders,
(ii) in connection with Classes of Incremental Term Loans, to extend the Prepayment Premium Period for the benefit of any existing
Class of Term Loans to the extent that such Class of Incremental Term Loans shall have the benefit of such longer Prepayment
Premium Period and/or (iii) to increase the Effective Yield of the applicable Class of Term Loans to the extent necessary in
order to ensure that any applicable Class of Incremental Term Loans are “fungible” with such existing Class of
Term Loans. The effectiveness of any Incremental Agreement (an “Incremental Facility Closing Date”) and the occurrence
of any Credit Event pursuant to such Incremental Agreement shall be subject to the satisfaction of such conditions as the parties thereto
shall agree. The Borrower will use the proceeds of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases
and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided, however,
that the proceeds of any Incremental Term Loans Incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either
case as described in the proviso to Section 2.14(b), shall be used in accordance with the terms thereof.
(f) (i) No
Lender shall be obligated to provide any Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement
Revolving Credit Commitments unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity
to provide any Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit
Commitments.
(ii) Upon each
increase in the Revolving Credit Commitments of any Class pursuant to this Section, each Lender with a Revolving Credit Commitment
of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender
providing a portion of the Incremental Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment
Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically
and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of
Credit and Swingline Loans such that, after giving pro forma effect to each such deemed assignment and assumption of participations,
the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder
in Swingline Loans held by each Lender with a Revolving Credit Commitment of such Class (including each such Incremental Revolving
Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of such Class of all
Lenders represented by such Lender’s Revolving Credit Commitment of such Class. If, on the date of such increase, there are any
Revolving Credit Loans of such Class outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental
Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such
increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Credit
Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative
Agent and the Lenders hereby agree 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 the immediately preceding sentence.
(g) This
Section 2.14 shall supersede any provisions in Section 2.7 or 13.1 to the contrary. For the avoidance of doubt, any provisions
of this Section 2.14 may be amended with the consent of the Required Lenders; provided no such amendment shall require any
Lender to provide any Incremental Commitment without such Lender’s consent
2.15 Extensions
of Term Loans, Revolving Credit Loans and Revolving Credit Commitments and Additional/Replacement Revolving Credit Loans and Additional/Replacement
Revolving Credit Commitments.
(a) The
Borrower may at any time and from time to time request that all or a portion of each Term Loan of any Class (an “Existing
Term Loan Class”) be converted or exchanged to extend the scheduled final maturity date(s) of any payment of principal
with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so extended, “Extended
Term Loans”) and to provide for other terms consistent with this Section 2.15. Prior to entering into any Extension Agreement
with respect to any Extended Term Loans, the Borrower shall provide written notice to the Administrative Agent (who shall provide a copy
of such notice to each of the Lenders of the applicable Existing Term Loan Class, with such request offered equally to all such Lenders
of such Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended
Term Loans to be established, which terms shall be similar to the Term Loans of the Existing Term Loan Class from which they are
to be extended except that (w) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments
of all or a portion of any principal amount of such Extended Term Loans may be delayed to later dates than the scheduled amortization
of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the
scheduled amortization payments reflected in Section 2.5 or in the Extension Agreement or the Incremental Agreement, as the case
may be, with respect to the Existing Term Loan Class of Term Loans from which such Extended Term Loans were extended, in each case
as more particularly set forth in Section 2.15(c) below), (x)(A) the interest rates (including through fixed interest rates),
interest margins, rate floors, upfront fees, funding discounts, AHYDO Catch-Up Payments, original issue discounts and prepayment terms
and premiums with respect to the Extended Term Loans may be different than those for the Term Loans of such Existing Term Loan Class and/or
(B) additional fees and/or premiums may be payable to the Lenders providing such Extended Term Loans in addition to any of the items
contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Agreement, (y) subject
to the provisions set forth in Sections 5.1 and 5.2, the Extended Term Loans may have optional prepayment terms (including call protection
and prepayment terms and premiums) and mandatory prepayment terms as may be agreed between the Borrower and the Lenders thereof and (z)
the Extension Agreement may provide for other covenants and terms that apply to any period after the Latest Maturity Date. No Lender shall
have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant
to any Term Loan Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term
Loans from the Existing Term Loan Class of Term Loans from which they were extended.
(b) The
Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, the Extended
Revolving Credit Commitments of any Class and/or any Additional/Replacement Revolving Credit Commitments (and, in each case, including
any previously extended Revolving Credit Commitments and/or Additional/Replacement Revolving Credit Commitments), existing at the time
of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans under any
such facility, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving
Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted or exchanged to extend
the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of
any principal amount of Existing Revolving Credit Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving
Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related revolving
credit loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.15.
Prior to entering into any Extension Agreement with respect to any Extended Revolving Credit Commitments, the Borrower shall provide
a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of
Existing Revolving Credit Commitments, with such request offered equally to all Lenders of such Class) (a “Revolving Credit
Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established thereunder,
which terms shall be similar to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the
“Specified Existing Revolving Credit Commitment Class”) except that (w) all or any of the final maturity dates
of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Existing Revolving Credit
Commitments of the Specified Existing Revolving Credit Commitment Class, (x)(A) the interest rates, interest margins, rate floors,
upfront fees, funding discounts, AHYDO Catch-Up Payments, original issue discounts and prepayment terms and premiums with respect to
the Extended Revolving Credit Commitments may be different than those for the Existing Revolving Credit Commitments of the Specified
Existing Revolving Credit Commitment Class and/or (B) additional fees and/or premiums may be payable to the Lenders providing
such Extended Revolving Credit Commitments in addition to or in lieu of any of the items contemplated by the preceding clause (A) and
(y)(1) the undrawn revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be different
than those for the Specified Existing Revolving Credit Commitment Class and (2) the Extension Agreement may provide for other
covenants and terms that apply to any period after the Latest Maturity Date; provided that, notwithstanding anything to the contrary
in this Section 2.15, Section 5.2(e) or otherwise, (I) the borrowing and repayment (other than in connection with
a permanent repayment and termination of commitments) of the Extended Revolving Credit Loans under any Extended Revolving Credit Commitments
shall be made on a pro rata basis with any borrowings and repayments of the Existing Revolving Credit Loans of the Specified Existing
Revolving Credit Commitment Class (the mechanics for which may be implemented through the applicable Extension Agreement and may
include technical changes related to the borrowing and repayment procedures of the Specified Existing Revolving Credit Commitment Class),
(II) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed
by the assignment and participation provisions set forth in Section 13.6 and (III) subject to the applicable limitations set
forth in Section 4.2 and Section 5.2(e)(ii), permanent repayments of Extended Revolving Credit Loans (and corresponding permanent
reduction in the related Extended Revolving Credit Commitments) shall be permitted as may be agreed between the Borrower and the Lenders
thereof. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any
Existing Revolving Credit Class converted or exchanged into Extended Revolving Credit Loans or Extended Revolving Credit Commitments
pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate
Class of revolving credit commitments from Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment
Class and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so
established on such date).
(c) The
Borrower shall provide the applicable Extension Request to the Administrative Agent at least five (5) Business Days (or such
shorter period as the Administrative Agent may determine in its reasonable discretion) prior to the date on which Lenders under the
Existing Class are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable
to, the Administrative Agent, in each case acting reasonably, to accomplish the purpose of this Section 2.15. The Borrower may,
at its election, specify as a condition to consummating any Extension Agreement that a minimum amount (to be determined and
specified in the relevant Extension Request in the Borrower’s sole discretion and as may be waived by the Borrower) of Term
Loans and/or Revolving Credit Commitments (as applicable) of any or all applicable Classes be tendered. Any Lender (an
“Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments or
Additional/Replacement Revolving Credit Commitments (or any earlier Extended Revolving Credit Commitments) of an Existing
Class subject to such Extension Request converted or exchanged into Extended Loans/Commitments shall notify the Administrative
Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its
Term Loans, Revolving Credit Commitments and/or Additional/Replacement Revolving Credit Commitments (and/or any earlier Extended
Revolving Credit Commitments) which it has elected to convert or exchange into Extended Loans/Commitments (subject to any minimum
denomination requirements imposed by the Administrative Agent). In the event that the aggregate amount of Term Loans, Revolving
Credit Commitments and Additional/Replacement Revolving Credit Commitments (and any earlier extended Extended Revolving Credit
Commitments) subject to Extension Elections exceeds the amount of Extended Loans/Commitments requested pursuant to the Extension
Request, Term Loans, Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments or earlier extended Extended
Revolving Credit Commitments, as applicable, subject to Extension Elections shall be converted to or exchanged to Extended
Loans/Commitments on a pro rata basis (subject to such rounding requirements as may be established by the Administrative Agent)
based on the amount of Term Loans, Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments and earlier
extended Extended Revolving Credit Commitments included in each such Extension Election or as may be otherwise agreed to in the
applicable Extension Agreement. Notwithstanding the conversion of any Existing Revolving Credit Commitment into an Extended
Revolving Credit Commitment, unless expressly agreed by the holders of each affected Existing Revolving Credit Commitment of the
Specified Existing Revolving Credit Commitment Class, such Extended Revolving Credit Commitment shall not be treated more favorably
than all Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class for purposes of the
obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(d) and Letters of Credit under
Section 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the last day for
issuing Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be
continued (pursuant to mechanics to be specified in the applicable Extension Amendment) so long as the Swingline Lender and/or each
Letter of Credit Issuer have consented to such extensions (it being understood that no consent of any other Lender shall be required
in connection with any such extension).
(d) Extended
Loans/Commitments shall be established pursuant to an amendment (an “Extension Agreement”) to this Agreement (which,
except to the extent expressly contemplated by the penultimate sentence of this Section 2.15(d) and notwithstanding anything
to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect
to the Extended Loans/Commitments established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders.
In addition to any terms and changes required or permitted by Section 2.15(b), each Extension Agreement in respect of Extended Term
Loans shall amend the scheduled amortization payments pursuant to Section 2.5 or the applicable Incremental Agreement or Extension
Agreement with respect to the Existing Class of Term Loans from which the Extended Term Loans were exchanged to reduce each scheduled
Repayment Amount for the Existing Class in the same proportion as the amount of Term Loans of the Existing Class is to be reduced
pursuant to such Extension Agreement (it being understood that the amount of any Repayment Amount payable with respect to any individual
Term Loan of such Existing Class that is not an Extended Term Loan shall not be reduced as a result thereof). In connection with
any Extension Agreement, the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent and addressed
to the Administrative Agent and the applicable Extending Lenders (i) as to the enforceability of such Extension Agreement, this Agreement
as amended thereby, and such of the other Credit Documents (if any) as may be amended thereby (in the case of such other Credit Documents
as contemplated by the immediately preceding sentence) and covering customary matters and (ii) to the effect that such Extension
Agreement, including the Extended Loans/Commitments provided for therein, does not breach or result in a default under the provisions
of Section 13.1 of this Agreement.
(e) Notwithstanding
anything to the contrary contained in this Agreement, (A) on any date on which any Existing Term Loan Class or
Class of Existing Revolving Credit Commitments is converted or exchanged to extend the related scheduled maturity
date(s) in accordance with paragraph (a) above (an “Extension Date”), (I) in the case of the
existing Term Loans of each Extending Lender, the aggregate principal amount of such existing Term Loans shall be deemed reduced by
an amount equal to the aggregate principal amount of Extended Term Loans so converted or exchanged by such Lender on such date, and
the Extended Term Loans shall be established as a separate Class of Term Loans (together with any other Extended Term Loans so
established on such date), and (II) in the case of the Existing Revolving Credit Commitments of each Extending Lender
under any Specified Existing Revolving Credit Commitment Class, the aggregate principal amount of such Existing Revolving Credit
Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Revolving Credit Commitments so
converted or exchanged by such Lender on such date (or by any greater amount as may be agreed by the Borrower and such Lender), and
such Extended Revolving Credit Commitments shall be established as a separate Class of revolving credit commitments from the
Specified Existing Revolving Credit Commitment Class and from any other Existing Revolving Credit Commitments (together with
any other Extended Revolving Credit Commitments so established on such date) and (B) if, on any Extension Date, any Existing
Revolving Credit Loans of any Extending Lender are outstanding under the Specified Existing Revolving Credit Commitment Class, such
Existing Revolving Credit Loans (and any related participations) shall be deemed to be converted or exchanged to Extended Revolving
Credit Loans (and related participations) of the applicable Class in the same proportion as such Extending Lender’s
Specified Existing Revolving Credit Commitments to Extended Revolving Credit Commitments of such Class.
(f) In
the event that the Administrative Agent determines in its sole discretion that the allocation of Extended Term Loans of a given Extension
Series or the Extended Revolving Credit Commitments of a given Extension Series, in each case to a given Lender was incorrectly determined
as a result of manifest administrative error in the receipt and processing of an Extension Election timely submitted by such Lender in
accordance with the procedures set forth in the applicable Extension Agreement, then the Administrative Agent, the Borrower and such affected
Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter into an amendment
to this Agreement and the other Credit Documents (each, a “Corrective Extension Agreement”) within 15 days following
the effective date of such Extension Agreement, as the case may be, which Corrective Extension Agreement shall (i) provide for the
conversion or exchange and extension of Term Loans under the Existing Term Loan Class or Existing Revolving Credit Commitments (and
related Revolving Credit Exposure), as the case may be, in such amount as is required to cause such Lender to hold Extended Term Loans
or Extended Revolving Credit Commitments (and related revolving credit exposure) of the applicable Extension Series into which such
other Term Loans or commitments were initially converted or exchanged, as the case may be, in the amount such Lender would have held had
such administrative error not occurred and had such Lender received the minimum allocation of the applicable Loans or Commitments to which
it was entitled under the terms of such Extension Agreement, in the absence of such error, (ii) be subject to the satisfaction of
such conditions as the Administrative Agent, the Borrower and such Lender may agree (including conditions of the type required to be satisfied
for the effectiveness of an Extension Agreement described in Section 2.15(d)), and (iii) effect such other amendments of the
type (with appropriate reference and nomenclature changes) described in the penultimate sentence of Section 2.15(d).
(g) No
conversion or exchange of Loans or Commitments pursuant to any Extension Agreement in accordance with this Section 2.15 shall constitute
a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(h) This
Section 2.15 shall supersede any provisions in Section 2.4 or Section 13.1 to the contrary. For the avoidance of doubt,
any of the provisions of this Section 2.15 may be amended with the consent of the Required Lenders; provided that no such
amendment shall require any Lender to provide any Extended Loans/Commitments without such Lender’s consent.
2.16 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 the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the
Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders
or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any
amendment or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring
the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders
shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or
extended without the consent of such Lender;
(c) if
any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any
part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject
to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender)
among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that
(A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such
Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor
any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the
Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender
or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated
portion”) of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be
so reallocated to Non- Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the
Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure
(after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such
Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause
(i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Letter of Credit Exposure is outstanding,
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to the
requirements of this Section 2.16(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to
Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting
Lender’s Letter of Credit Exposure is Cash Collateralized, (iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c),
then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’
Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section
4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s
Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized
nor reallocated pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter
of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Letter
of Credit Exposure shall be payable to the Letter of Credit Issuer until such Letter of Credit Exposure is Cash Collateralized and/or
reallocated;
(d) (i) the
Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase
the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is
reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by
the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with
the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer;
and
(ii) the Swingline Lender will be not required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied
that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit
Commitments of the Non- Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(c) above.
(e) If
the Borrower, the Administrative Agent, the Swingline Lender and each applicable Letter of Credit Issuer agree in writing in their discretion
that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify
the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such
Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Credit Loans of the other Revolving Credit
Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause such outstanding Revolving Credit
Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Revolving
Credit Lenders (including such Lender) in accordance with their applicable percentages, whereupon such Lender will cease to be a Defaulting
Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter
of Credit Exposure and Swingline Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(c) shall
be reallocated back to such Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided that, except to the extent otherwise
expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver
or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender; and
(f) Any
payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise, and including any amounts made available to the
Administrative Agent by that Defaulting Lender pursuant to Section 13.8), shall be applied at such time or times as may be determined
by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative
Agent hereunder; second, in the case of a Revolving Credit Lender, to the payment on a pro rata basis of any amounts owing
by that Defaulting Lender to the Letter of Credit Issuer and the Swingline Lender hereunder; third, as the Borrower may request
(so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed
to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined
by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released pro rata in order
to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and
(y) Cash Collateralize, in accordance with Section 3.8, the Letter of Credit Issuer’s potential future fronting exposure
with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; fifth, to the payment
of any amounts owing to the Lenders, the Letter of Credit Issuer or the Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, such Letter of Credit Issuer or such Swingline Lender against that Defaulting Lender as a result
of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default
exists, to the payment of any amounts owing to the Borrower or any of its Restricted Subsidiaries pursuant to any Secured Hedging Agreement
with such Defaulting Lender as certified by an Authorized Officer of the Borrower to the Administrative Agent (with a copy to the Defaulting
Lender) prior to such date of payment; seventh, so long as no Default or Event of Default exists, to the payment of any amounts
owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting
Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that, if such payment is a payment of the principal
amount of any Loans or a payment of any Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid
Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.16(f).
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall be deemed paid to and redirected by that Defaulting Lender,
and each Lender irrevocably consents hereto.
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2.17
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Term Loan Exchange Notes.
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(a) The
Borrower may by written notice to the Administrative Agent elect to offer (each a “Permitted Debt Exchange Offer”)
to issue to Lenders holding Term Loans under this Agreement first priority senior secured notes and/or junior lien secured notes and/or
unsecured notes (the “Term Loan Exchange Notes”) in exchange for the Term Loans (each such exchange, a “Permitted
Debt Exchange”); provided that such Term Loan Exchange Notes may not be in an aggregate principal amount greater than
the Term Loans being exchanged plus unpaid accrued interest, fees and premiums (including tender premiums) (if any) thereon, defeasance
costs, underwriting discounts and fees, commissions and expenses (including OID, closing payments, upfront fees or similar fees)
in connection with the issuance of the Term Loan Exchange Notes. Each such notice shall specify the date (each, a “Term Loan
Exchange Effective Date”) on which the Borrower proposes that the Term Loan Exchange Notes shall be issued, which shall be
a date not less than fifteen days after the date on which such notice is delivered to the Administrative Agent (or such shorter period
as may be agreed by the Administrative Agent); provided that: (w) the Weighted Average Life to Maturity of such Term Loan
Exchange Notes shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans being exchanged (it being
understood that acceleration or mandatory repayment, prepayment, redemption or repurchase of such Term Loan Exchange Notes upon the occurrence
of an event of default, a change in control, an event of loss or an asset disposition shall not be deemed to constitute a change in the
stated final maturity thereof); (x) if secured, such Term Loan Exchange Notes shall rank equal to or junior in right of payment
and of security with the Loans and Commitments being exchanged hereunder; (y) all other terms and conditions (other than interest
rates (including through fixed interest rates), interest rate margins, rate floors, fees, maturity, funding discounts, original issue
discounts and redemption or prepayment terms and premiums) applicable to such Term Loan Exchange Notes shall reflect market terms and
conditions at the time of incurrence or issuance (as determined in good faith by the Borrower); provided that the Term Loan Exchange
Notes may have the benefit of any Previously Absent Financial Maintenance Covenant if the Administrative Agent has been given prompt
written notice thereof and this Agreement shall have been amended to include such Previously Absent Financial Maintenance Covenant; and
(z) the obligations in respect of the Term Loan Exchange Notes (A) shall not be secured by Liens on any asset of Holdings,
the Borrower and the Restricted Subsidiaries other than assets constituting Collateral, (B) if such Term Loan Exchange Notes are
secured, all security therefor shall be granted pursuant to documentation that is not more restrictive than the Security Documents in
any material respect taken as a whole (as determined by the Borrower) and the representative for such Additional Term Notes shall enter
into a Customary Intercreditor Agreement (it being understood that junior Liens are not required to be equal to other junior Liens, and
that Indebtedness secured by junior Liens may be secured by Liens that are equal to, or junior in priority to, other Liens that are junior
to the Liens securing the Obligations), or (C) shall not be incurred or Guaranteed by any Restricted Subsidiary unless such Restricted
Subsidiary is a Credit Party which shall have previously or substantially concurrently Guaranteed or borrowed such Term Loans being exchanged.
(b) The
Borrower shall offer to issue Term Loan Exchange Notes in exchange for the Class of Term Loans to all Lenders holding such
Class of Term Loans (other than any Lender that, if requested by the Borrower, is unable to certify that it is (i) a
“qualified institutional buyer” (as defined in Rule 144A under the Securities Act), (ii) an institutional
“accredited investor” (as defined in Rule 501 under the Securities Act) or (iii) not a “U.S.
person” (as defined in Rule 902 under the Securities Act) on a pro rata basis, and such Lenders may choose to accept or
decline to receive such Term Loan Exchange Notes in their sole discretion. Any such Term Loans exchanged for Term Loan Exchange
Notes shall be automatically and immediately, without further action by any Person, cancelled on the Term Loan Exchange Effective
Date for all purposes of this Agreement (and, if requested by the Administrative Agent, any applicable exchanging Lender shall
execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other form as may be reasonably requested by
the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being
exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), and accrued and unpaid interest on
such Term Loans shall be paid to the exchanging Lenders on the Term Loan Exchange Effective Date, or, if agreed to by the Borrower
and the Administrative Agent, the next scheduled Interest Payment Date with respect to such Term Loans (with such interest accruing
until the date of consummation of such Permitted Debt Exchange).
(c) If
the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of a given Class tendered by Lenders
in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans
which exceeds the principal amount thereof of the applicable Class actually held by it) shall exceed the maximum aggregate
principal amount of Term Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange
Offer, then the Borrower shall exchange Term Loans under the relevant Class tendered by such Lenders ratably up to such maximum
based on the respective principal amounts so tendered, or, if such Permitted Debt Exchange Offer shall have been made with respect
to multiple Classes without specifying a maximum aggregate principal amount offered to be exchanged for each Class, and the
aggregate principal amount of all Term Loans (calculated on the face amount thereof) of all Classes tendered by Lenders in respect
of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which
exceeds the principal amount thereof actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of all
relevant Classes offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall
exchange Term Loans across all Classes subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such
maximum amount based on the respective principal amounts so tendered.
(d) With
respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.17, unless waived by the Borrower, such
Permitted Debt Exchange Offer shall be made for not less than $50,000,000 in aggregate principal amount of Term Loans; provided that
subject to the foregoing the Borrower may at its election specify (A) as a condition (a “Minimum Tender Condition”)
to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt
Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable Classes be tendered and/or (B) as a condition (a “Maximum Tender Condition”) to consummating any such Permitted Debt Exchange that no more than a maximum
amount (to be determined and specified in the relevant Permitted Debt Exchange Offer
in the Borrower’s discretion) of Term Loans of any or all applicable Classes will be accepted for exchange. The Administrative
Agent and the Lenders hereby acknowledge and agree that this Section 2.17 shall supersede any provisions of Section 2.5, Section V
and Section 13.1 to the contrary, waive the requirements of any other provision of this Agreement or any other Credit Document that
may otherwise prohibit the incurrence of any Indebtedness expressly provided for by this Section 2.17 and hereby agree not to assert
any Default or Event of Default in connection with the implementation of any such Permitted Debt Exchange or any other transaction contemplated
by this Section 2.17.
(e) In
connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least five Business Days’ (or
such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative
Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this
Section 2.17; provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders
are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five Business Days following
the date on which the Permitted Debt Exchange Offer is made. The Borrower shall provide the final results of such Permitted Debt Exchange
to the Administrative Agent no later than one Business Day prior to the proposed date of effectiveness for such Permitted Debt Exchange
and the Administrative Agent shall be entitled to conclusively rely on such results.
(f) The
Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection
with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent nor any Lender assumes any
responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted Debt Exchange and (y)
each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to
which such Lender may be subject under the Exchange Act.
SECTION 3. Letters
of Credit.
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3.1
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Issuance of Letters of Credit.
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(a) Subject
to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Closing Date and prior to the
date that is 15 days prior to the Revolving Credit Maturity Date, each Letter of Credit Issuer agrees to issue (or cause its Affiliates
or other financial institution with which the Letter of Credit Issuer shall have entered into an agreement regarding the issuance of letters
of credit hereunder, to issue on its behalf), upon the request of and for the account of the Borrower or any Restricted Subsidiary, letters
of credit (each, a “Letter of Credit”) in such form as may be approved by such Letter of Credit Issuer in its reasonable
discretion; provided that the Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Letter
of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding
the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Obligations
at such time, would exceed the Letter of Credit Sub-Commitment then in effect, (ii) no Letter of Credit shall be issued the Stated
Amount of which, when added to the Letter of Credit Obligations and the Revolving Credit Loans and Swingline Loans outstanding at such
time, would exceed the Total Revolving Credit Commitment then in effect, (iii) no Letter of Credit shall be required to be issued
by a Letter of Credit Issuer the Stated Amount of which, when added to such Letter of Credit Issuer’s Revolving Credit Exposure
(whether held directly or through its Affiliates), would exceed the Revolving Credit Commitment of such Letter of Credit Issuer (or its
Affiliates), (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one year after
the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of Credit Issuer or
as provided under Section 3.2(e), and (y) the Letter of Credit Maturity Date, (v) each Letter of Credit shall be denominated
in Dollars, (vi) no Letter of Credit shall be issued if it would be illegal under any Applicable Law for the beneficiary of the
Letter of Credit to have a Letter of Credit issued in its favor, (vii) no Letter of Credit shall be issued after the applicable
Letter of Credit Issuer has received a written notice from the Borrower or the Administrative Agent stating that a Default or an Event
of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission
of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default
in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing, (viii) no
Letter of Credit shall be issued by the applicable Letter of Credit Issuer if such issuance would cause the Letter of Credit Obligations
of such Letter of Credit Issuer to exceed the Letter of Credit Sub-Commitment Obligation of such Letter of Credit Issuer, (ix) UBS
AG, Stamford Branch shall only be required to issue standby letters of credit and (x) in no event shall SunTrust Bank be required
to issue commercial or trade letters of credit.
(c) In
connection with the establishment of any Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments
and subject to the availability of unused Commitments with respect to such newly established Class and the satisfaction of the Conditions
set forth in Section 7, the Borrower may, with the written consent of the Letter of Credit Issuer, designate any outstanding Letter
of Credit to be a Letter of Credit issued pursuant to such Class of Extended Revolving Credit Commitments or Additional/Replacement
Revolving Credit Commitments, as applicable. Upon such designation such Letter of Credit shall no longer be deemed to be issued and outstanding
under such prior Class and shall instead be deemed to be issued and outstanding under such newly established Class of Extended
Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments, as applicable.
(d) On
the Closing Date, without further action by any party hereto (including the delivery of a Letter of Credit Request or any consent of,
or confirmation by or to, the Administrative Agent), subject to the terms of this Section 3, (i) each Existing Letter of Credit
set forth on Schedule 1.1(b) hereto issued by a Letter of Credit Issuer hereunder shall become a Letter of Credit outstanding under
this Agreement, shall be deemed to be a Letter of Credit issued under this Agreement and shall be subject to the terms and conditions
hereof (including Section 4.1) as if each such Letter of Credit was issued by the applicable Letter of Credit Issuer pursuant to
this Agreement and (ii) each Letter of Credit Issuer that has issued an Existing Letter of Credit shall be deemed to have granted
each Letter of Credit Participant in respect thereof and each Letter of Credit Participant in respect thereof shall be deemed to have
acquired from such Letter of Credit Issuer, on the terms and conditions of Section 3.3 hereof, for such Letter of Credit Participant’s
own account and risk, an undivided participation interest in such Letter of Credit Issuer’s obligations and rights under each such
Existing Letter of Credit equal to such Letter of Credit Participant’s Revolving Credit Commitment Percentage, as applicable, of
(A) the outstanding amount available to be drawn under such Existing Letter of Credit and (B) the aggregate amount of any outstanding
reimbursement obligations in respect thereof.
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3.2
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Letter of Credit Requests.
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(a) Whenever
the Borrower (or the Borrower on behalf of any Restricted Subsidiary) desires that a Letter of Credit be issued (or amended, renewed
or extended), it shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request by no later than 1:00
p.m. (New York City time) (i) at least three (or such lesser number as may be agreed upon by the Administrative Agent and the
Letter of Credit Issuer) Business Days prior to the proposed date of issuance, amendment, renewal or extension for any Letter of Credit
for the account of the Borrower or any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall have also signed the
applicable Letter of Credit Request), (ii) at least five (or such lesser number as may be agreed upon by the Administrative Agent
and the Letter of Credit Issuer) Business Days prior to the proposed date of issuance, amendment, renewal or extension for any Letter
of Credit for the account of any Restricted Subsidiary that is a Domestic Subsidiary that is not a Credit Party and (iii) at least
ten (or such lesser number as may be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days prior to
the date of issuance, amendment, renewal or extension for any Letter of Credit for the account of any Foreign Restricted Subsidiary.
Each Letter of Credit Request shall be executed by the Borrower and sent by facsimile, by United States mail, by overnight courier, by
electronic transmission using the system provided by the Letter of Credit Issuer, by personal delivery or by any other means acceptable
to the Letter of Credit Issuer.
(b) In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
Stated Amount thereof; (C) the expiry date thereof (which shall be not later than the earlier of (x) one year after the date
of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of Credit Issuer or as provided
under Section 3.2(e), and (y) the Letter of Credit Maturity Date); (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder and (G) such other matters as the Letter of Credit Issuer
may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request
shall specify: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit Issuer may reasonably require.
(c) Promptly
after receipt of any Letter of Credit Request, the Letter of Credit Issuer will confirm with the Administrative Agent in writing that
the Administrative Agent has received a copy of such Letter of Credit Request from the Borrower and, if not, the Letter of Credit Issuer
will provide the Administrative Agent with a copy thereof. Unless the Letter of Credit Issuer has received written notice from the Required
Revolving Credit Lenders, the Administrative Agent, the Borrower or any other Credit Party at least two Business Days prior to the requested
date of issuance or amendment of the Letter of Credit, that one or more applicable conditions contained in Section 7 shall not then
be satisfied, then, subject to the terms and conditions hereof, the Letter of Credit Issuer shall, on the requested date, issue a Letter
of Credit for the account of the Borrower (or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with the terms hereof.
(d) The
making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower that the Letter of Credit
may be issued in accordance with, and will not violate the requirements of, Section 3.1(b).
(e) If
the Borrower so requests in any applicable Letter of Credit Request, the Letter of Credit Issuer may agree to issue a Letter of Credit
that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such
Auto-Extension Letter of Credit must permit the Letter of Credit Issuer to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than
a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter
of Credit is issued. Unless otherwise directed by the Letter of Credit Issuer, the Borrower shall not be required to make a specific request
to the Letter of Credit Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed
to have authorized (but may not require) the Letter of Credit Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Maturity Date; provided, however, that the Letter of Credit Issuer shall
not permit any such extension if (A) the Letter of Credit Issuer has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions
of Section 3.1(b) or otherwise), or (B) it has received written notice on or before the day that is seven Business Days
before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Revolving Credit Lenders have elected not
to permit such extension or (2) from the Administrative Agent, the Required Revolving Credit Lenders or the Borrower that one or
more of the applicable conditions specified in Section 7 are not then satisfied, and in each such case directing the Letter of Credit
Issuer not to permit such extension.
(f) Promptly
after its delivery of any Letter of Credit or any amendment, renewal or extension to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the Letter of Credit Issuer will notify the Administrative Agent of such delivery, amendment, renewal
or extension and will also deliver to the Borrower a true and complete copy of such Letter of Credit or amendment, renewal or extension.
On the last Business Day of each March, June, September and December, the Letter of Credit Issuer shall provide the Administrative
Agent a list of all Letters of Credit issued by it that are outstanding at such time.
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3.3
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Letter of Credit Participations.
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(a) Immediately
upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and
transferred to each other Revolving Credit Lender (each such Revolving Credit Lender, in its capacity under this Section 3.3(a),
a “Letter of Credit Participant”), and each such Letter of Credit Participant shall be deemed irrevocably and unconditionally
to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation
(each, a “Letter of Credit Participation”), to the extent of such Letter of Credit Participant’s Revolving Credit
Commitment Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of
the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit
Fees will be paid directly to the Administrative Agent for the ratable account of the Letter of Credit Participants as provided in Section 4.1(c) and
the Letter of Credit Participants shall have no right to receive any portion of any fees paid to the Administrative Agent for the account
of the Letter of Credit Issuer in respect of each Letter of Credit issued hereunder).
(b) In
determining whether to pay under any Letter of Credit, the Letter of Credit Issuer shall have no obligation relative to the Letter of
Credit Participants other than to confirm to the Administrative Agent that any documents required to be delivered under such Letter of
Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken or omitted
in the absence of gross negligence or willful misconduct, as determined in a final non-appealable judgment of a court of competent jurisdiction,
shall not create for the Letter of Credit Issuer any resulting liability.
(c) Whenever
the Administrative Agent receives a payment in respect of an unpaid reimbursement obligation for the account of the Letter of Credit Issuer
from the Borrower, the Administrative Agent shall promptly pay to each Letter of Credit Participant that has paid its Revolving Credit
Commitment Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount equal to such Letter
of Credit Participant’s share (based upon the proportionate aggregate amount originally funded or deposited by such Letter of Credit
Participant to the aggregate amount funded or deposited by all Letter of Credit Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective Letter of Credit Participations; provided that the
amount paid to any Letter of Credit Participant shall not exceed the amount funded or deposited by such Letter of Credit Participant.
(d) The
obligations of the Letter of Credit Participants to purchase Letter of Credit Participations from the Letter of Credit Issuer and make
payments to the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable
and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances, including under any of the following circumstances:
(i) any
lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the
existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such beneficiary or transferee may be acting),
the Administrative Agent, the Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated hereby or any unrelated transactions (including any underlying transaction between
the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any
draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the
surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents;
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(v)
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the occurrence of any Default or Event of Default; or
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(vi) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Credit Party or Restricted Subsidiary.
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3.4
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Agreement to Repay Letter of Credit Drawings.
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(a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer in Dollars with respect to any drawing under any Letter of Credit,
by making payment, whether with its own funds, with the proceeds of Revolving Credit Loans or any other source, to the
Administrative Agent for the account of the Letter of Credit Issuer in immediately available funds, for any payment or disbursement
made by the Letter of Credit Issuer under any Letter of Credit issued by it (with respect to each such amount so paid under a Letter
of Credit until reimbursed, a “Unpaid Drawing” (i) within one Business Day of the date of such payment or
disbursement, if the Letter of Credit Issuer provides notice to the Borrower of such payment or disbursement prior to 11:00
a.m. (New York City time) on such next succeeding Business Day after the date of such payment or disbursement or (ii) if
such notice is received after such time, on the next Business Day following the date of receipt of such notice (such required date
for reimbursement under clause (i) or (ii), as applicable (the “Required Reimbursement Date”), with interest
on the amount so paid or disbursed by such Letter of Credit Issuer, from and including the date of such payment or disbursement to
but excluding the Required Reimbursement Date, at the per annum rate for each day equal to the rate described in
Section 2.8(a); provided that, notwithstanding anything contained in this Agreement to the contrary, with respect to any
Letter of Credit, (i) unless the Borrower shall have notified the Administrative Agent and the Letter of Credit Issuer prior to
11:00 a.m. (New York City time) on the Required Reimbursement Date that the Borrower intends to reimburse the Letter of Credit
Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Borrower shall be deemed to
have given a Notice of Borrowing requesting that the Lenders with Revolving Credit Commitments make Revolving Credit Loans (which
shall be ABR Loans) on the Required Reimbursement Date in an amount equal to the amount of such drawing, and (ii) the
Administrative Agent shall promptly notify each Letter of Credit Participant of such drawing and the amount of its Revolving Credit
Loan to be made in respect thereof, and each Letter of Credit Participant shall be irrevocably obligated to make a Revolving Credit
Loan to the Borrower in the manner deemed to have been requested in the amount of its Revolving Credit Commitment Percentage of the
applicable Unpaid Drawing by 12:00 noon (New York City time) on such Required Reimbursement Date by making the amount of such
Revolving Credit Loan available to the Administrative Agent. Such Revolving Credit Loans made in respect of such Unpaid Drawing on
such Required Reimbursement Date shall be made without regard to the Minimum Borrowing Amount and without regard to the satisfaction
of the conditions set forth in Section 7. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely
for the purpose of reimbursing the Letter of Credit Issuer for the related Unpaid Drawing. If and to the extent such Letter of
Credit Participant shall not have so made its Revolving Credit Commitment Percentage of the amount of such payment available to the
Administrative Agent for the account of the Letter of Credit Issuer, or that in the sole judgment of the Letter of Credit Issuer,
such Revolving Credit Loan cannot for any reason be made on the date otherwise required above (including as a result of the
commencement of a proceeding under any Debtor Relief Law in respect of the Borrower), each Letter of Credit Participant hereby
agrees that its participation in such Unpaid Drawing shall remain outstanding in lieu of funding its portion of such Revolving
Credit Loan and such Letter of Credit Participant agrees to pay to the Administrative Agent for the account of the Letter of Credit
Issuer, forthwith on demand, such amount, together with interest thereon for each day from such date until the date such amount is
paid to the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum equal to the Overnight Rate from
time to time then in effect, plus any administrative, processing or similar fees customarily charged by the Letter of Credit
Issuer in connection with the foregoing. The failure of any Letter of Credit Participant to make available to the Administrative
Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of
Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to the Administrative
Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of
Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any
other Letter of Credit Participant to make available to the Administrative Agent such other Letter of Credit Participant’s
Revolving Credit Commitment Percentage of any such payment.
(b) The
obligations of the Borrower under this Section 3.4 to reimburse the Letter of Credit Issuer with respect to Unpaid Drawings (including,
in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim
or defense to payment that the Borrower or any other Person may have or have had against the Letter of Credit Issuer, the Administrative
Agent or any Lender (including in its capacity as a Letter of Credit Participant), including any defense based upon the failure of any
drawing under a Letter of Credit (each, a “Drawing”) to conform to the terms of such Letter of Credit or any non-application
or misapplication by the beneficiary of the proceeds of such Drawing; provided that the Borrower shall not be obligated to reimburse
the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by it as a
result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer as determined
in the final, non-appealable judgment of a court of competent jurisdiction.
3.5 Increased
Costs. If a Change in Law shall either (a) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against letters of credit issued by the Letter of Credit Issuer, or any Letter of Credit Participant’s
Letter of Credit Participation therein or (b) impose on the Letter of Credit Issuer or any Letter of Credit Participant any other
conditions affecting its obligations under this Agreement in respect of Letters of Credit or Letter of Credit Participations therein or
any Letter of Credit or such Letter of Credit Participant’s Letter of Credit Participation therein, and the result of any of the
foregoing is to increase the cost to the Letter of Credit Issuer or such Letter of Credit Participant of issuing, maintaining or participating
in any Letter of Credit, or to reduce the amount of any sum received or receivable by the Letter of Credit Issuer or such Letter of Credit
Participant hereunder (other than any such increase or reduction attributable to (i) Taxes indemnifiable under Section 5.4,
(ii) Excluded Taxes or (iii) Taxes described in Section 5.4(f)) in respect of Letters of Credit or Letter of Credit Participations
therein, then, promptly after receipt of written demand to the Borrower by the Letter of Credit Issuer or such Letter of Credit Participant,
as the case may be (a copy of which notice shall be sent by the Letter of Credit Issuer or such Letter of Credit Participant to the Administrative
Agent), the Borrower shall pay to the Letter of Credit Issuer or such Letter of Credit Participant such additional amount or amounts as
will compensate the Letter of Credit Issuer or such Letter of Credit Participant for such increased cost or reduction, it being understood
and agreed, however, that the Letter of Credit Issuer or a Letter of Credit Participant shall not be entitled to such compensation as
a result of such Person’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law that
would have existed in the event that a Change in Law had not occurred. A certificate submitted to the Borrower by the Letter of Credit
Issuer or a Letter of Credit Participant, as the case may be (a copy of which certificate shall be sent by the Letter of Credit Issuer
or such Letter of Credit Participant to the Administrative Agent), setting forth in reasonable detail the basis for the determination
of such additional amount or amounts necessary to compensate the Letter of Credit Issuer or such Letter of Credit Participant as aforesaid
shall be conclusive and binding on the Borrower absent clearly demonstrable error. Notwithstanding the foregoing, no Lender or Letter
of Credit Issuer shall be entitled to seek compensation under this Section 3.5 based on the occurrence of a Change in Law arising
solely from (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder
or issued in connection therewith or (y) Basel III or any requests, rules, guidelines or directives thereunder or issued in connection
therewith, unless such Lender or Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged
loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers having
provisions similar to this Section 3.5.
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3.6
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New or Successor Letter of Credit Issuer.
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(a) Any
Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 30 days’ prior written notice to the Administrative Agent,
the applicable Revolving Credit Lenders and the Borrower. Subject to the terms of the following sentence, the Borrower may replace the
Letter of Credit Issuer for any reason upon written notice to the Administrative Agent and the Letter of Credit Issuer and the Borrower
may add Letter of Credit Issuers at any time upon notice to the Administrative Agent and with the agreement of such new Letter of Credit
Issuer. If the Letter of Credit Issuer shall resign or be replaced, or if the Borrower shall decide to add a new Letter of Credit Issuer
under this Agreement, then the Borrower may appoint a successor issuer of Letters of Credit or a new Letter of Credit Issuer, as the case
may be, with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), whereupon such successor
issuer shall succeed to the rights, powers and duties of the replaced or resigning Letter of Credit Issuer under this Agreement and the
other Credit Documents, or such new issuer of Letters of Credit shall be granted the rights, powers and duties of a Letter of Credit Issuer
hereunder, and the term “Letter of Credit Issuer” shall mean such successor or such new issuer of Letters of Credit effective
upon such appointment. At the time such resignation or replacement shall become effective, the Borrower shall pay to the resigning or
replaced Letter of Credit Issuer all accrued and unpaid fees pursuant to Sections 4.1(b) and 4.1(d). The acceptance of any appointment
as a Letter of Credit Issuer hereunder, whether as a successor issuer or new issuer of Letters of Credit in accordance with this Agreement,
shall be evidenced by an agreement entered into by such new or successor issuer of Letters of Credit, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such agreement, such new or successor issuer of Letters of Credit
shall become a “Letter of Credit Issuer” hereunder. After the resignation or replacement of a Letter of Credit Issuer hereunder,
the resigning or replaced Letter of Credit Issuer shall remain a party hereto and shall continue to have all the rights and obligations
of a Letter of Credit Issuer under this Agreement and the other Credit Documents with respect to Letters of Credit issued by it prior
to such resignation or replacement, but shall not be required to issue additional Letters of Credit or amend or renew existing Letters
of Credit. In connection with any resignation or replacement pursuant to this clause (a) (but, in case of any such resignation, only
to the extent that a successor issuer of Letters of Credit shall have been appointed), either (i) the Borrower, the resigning or
replaced Letter of Credit Issuer and the successor issuer of Letters of Credit shall arrange to have any outstanding Letters of Credit
issued by the resigning or replaced Letter of Credit Issuer replaced with Letters of Credit issued by the successor issuer of Letters
of Credit or (ii) the Borrower shall cause the successor issuer of Letters of Credit, if such successor issuer is reasonably satisfactory
to the replaced or resigning Letter of Credit Issuer, to issue “back-stop” Letters of Credit naming the resigning or replaced
Letter of Credit Issuer as beneficiary for each outstanding Letter of Credit issued by the resigning or replaced Letter of Credit Issuer,
which new Letters of Credit shall have a face amount equal to the Letters of Credit being back-stopped, and the sole requirement for drawing
on such new Letters of Credit shall be a drawing on the corresponding back-stopped Letters of Credit. After any resigning or replaced
Letter of Credit Issuer’s resignation or replacement as Letter of Credit Issuer, the provisions of this Agreement relating to a
Letter of Credit Issuer shall inure to its benefit as to any actions taken or omitted to be taken by it (A) while it was a Letter
of Credit Issuer under this Agreement or (B) at any time with respect to Letters of Credit issued by such Letter of Credit Issuer.
(b) To
the extent that there are, at the time of any resignation or replacement as set forth in clause (a) above, any outstanding Letters
of Credit, nothing herein shall be deemed to impact or impair any rights and obligations of any of the parties hereto with respect to
such outstanding Letters of Credit (including, without limitation, any obligations related to the payment of fees or the reimbursement
or funding of amounts drawn), except that the Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of
Letters of Credit shall have the obligations regarding outstanding Letters of Credit described in clause (a) above.
3.7 Role
of Letter of Credit Issuer. Each Revolving Credit Lender and the Borrower agree that, in paying any drawing under a Letter of Credit,
the Letter of Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority
of the Person executing or delivering any such document. None of the Letter of Credit Issuer, any Related Party of the Letter of Credit
Issuer, the Administrative Agent, any of their respective Affiliates or any correspondent, participant or assignee of the Letter of Credit
Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval
of the Required Lenders or the Required Revolving Credit Lenders, as applicable, (ii) any action taken or omitted in the absence
of gross negligence, bad faith or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended
to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee
at law or under any other agreement. None of the Letter of Credit Issuer, any Related Party of the Letter of Credit Issuer, the Administrative
Agent, any of their respective Affiliates or any correspondent, participant or assignee of the Letter of Credit Issuer shall be liable
or responsible for any of the matters described in Section 3.3(d); provided that anything in such Section to the contrary
notwithstanding, the Borrower may have a claim against the Letter of Credit Issuer, and the Letter of Credit Issuer may be liable to
the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower caused by the Letter of Credit Issuer’s willful misconduct or gross negligence, as determined in a final non-appealable
judgment of a court of competent jurisdiction, or the Letter of Credit Issuer’s willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit (as determined by a court of competent jurisdiction in a final and non-appealable order). In furtherance and not
in limitation of the foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in order, without responsibility
for further investigation, regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(a) If,
as of the Letter of Credit Maturity Date, there are any Letter of Credit Obligations, the Borrower shall promptly (and in any event not
later than the following Business Day) Cash Collateralize the Letter of Credit Obligations that for any reason remain outstanding. Section 2.16
and Section 5.2 set forth certain additional circumstances under which Cash Collateral may be, or is required to be, delivered hereunder.
(b) If
any Event of Default shall occur and be continuing, the Required Revolving Credit Lenders may require that the Letter of Credit Obligations
be Cash Collateralized; provided that, upon the occurrence of an Event of Default referred to in Section 11.5, the Borrower
shall immediately Cash Collateralize the Letters of Credit then outstanding and no notice or request by or consent from the Required Lenders
shall be required.
(c) For
purposes of this Agreement, “Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Agent,
for the benefit of the Letter of Credit Issuer collateral for the Letter of Credit Obligations cash or deposit account balances (“Cash
Collateral”) in an amount equal to the amount of the Letter of Credit Obligations required to be Cash Collateralized pursuant
to documentation in form and substance reasonably satisfactory to the Administrative Agent and the Letter of Credit Issuer (which documents
are hereby consented to by the Revolving Credit Lenders). Derivatives of such terms have corresponding meanings. The Borrower hereby grants
to the Collateral Agent, for the benefit of the Letter of Credit Issuer and the Letter of Credit Participants, a security interest in
all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. If at any time the Administrative Agent determines
that Cash Collateral is subject to any right or claim of any Person other than the Collateral Agent, the Letter of Credit Issuer or the
Letter of Credit Participants, other than any Liens permitted under Section 10.2, or that the total amount of such Cash Collateral
is less than the amount required to be delivered as described above, the Borrower will, promptly upon demand by the Administrative Agent,
pay or provide to the Collateral Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. Cash Collateral
shall be maintained in blocked, interest bearing deposit accounts with the Collateral Agent.
(d) Notwithstanding
anything to the contrary contained in this Agreement, Cash Collateral provided under this Agreement in respect of Letters of Credit shall
be held and applied to the satisfaction of the specific Letter of Credit Obligations, obligations to fund participations therein, any
interest accrued on such obligation and other obligations for which the Cash Collateral was so provided, prior to any other application
of such property as may otherwise be provided for herein.
(e) Cash
Collateral (or the appropriate portion thereof) provided to reduce or secure any obligations herein shall be released promptly
following (i) the elimination of the applicable obligation giving rise thereto or (ii) the determination by the Administrative
Agent and the Letter of Credit Issuer that there exists excess Cash Collateral; provided, however that (x) any such
release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any
other Lien conferred under the Credit Documents and the other applicable provisions of the Credit Documents, and (y) the Person
providing Cash Collateral and the Letter of Credit Issuer may agree that Cash Collateral shall not be released but instead held to
support anticipated obligations.
3.9 Conflict
with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
3.10 Letters
of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support
of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the Letter of Credit
Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of
Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives
substantial benefits from the businesses of such Restricted Subsidiaries.
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(a)
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The Letter of Credit Issuer shall be under no obligation to issue any Letter of Credit if:
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(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit
Issuer from issuing such Letter of Credit, or any requirement of law applicable to the Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit,
or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement
(for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon
the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of
Credit Issuer in good faith deems material to it;
(ii) the
issuance of such Letter of Credit would violate one or more policies or procedures of the Letter of Credit Issuer;
(iii) except
as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount
less than $100,000, in the case of a commercial Letter of Credit, or $10,000, in the case of a standby Letter of Credit;
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(iv)
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such Letter of Credit is denominated in a currency other than Dollars; or
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(v) such
Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder.
(b) The
Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have
no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of Credit. Unless otherwise expressly agreed by the Letter of Credit
Issuer and the Borrower when a Letter of Credit is issued, each Letter of Credit shall be governed by, and shall be construed in accordance
with, the laws of the State of New York.
(c) The
Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided
to the Administrative Agent in Section 12 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer
in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of
Credit as fully as if the term “Administrative Agent” as used in Section 12 included the Letter of Credit Issuer
with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit
Issuer.
3.12 Applicability
of ISP and UCP. Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued,
(i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to
each commercial Letter of Credit. Notwithstanding the foregoing, the Letter of Credit Issuer shall not be responsible to the Borrower
for, and the Letter of Credit Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction
of the Letter of Credit Issuer required or permitted under any Applicable Law, order, or practice that is required or permitted to be
applied to any Letter of Credit or this Agreement, including the Applicable Law or any order of a jurisdiction where the Letter of Credit
Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements,
or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services
Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses
such law or practice.
SECTION 4. Fees;
Commitment Reductions and Terminations.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender (in each case pro rata according to
the respective Revolving Credit Commitments of all such Revolving Credit Lenders) a commitment fee (the “Commitment Fee”)
in Dollars that shall accrue daily from and including the Closing Date to but excluding the Revolving Credit Termination Date. Each such
Commitment Fee shall be payable (x) quarterly in arrears on the last Business Day of each March, June, September and December (for
the three-month period (or portion thereof) ended on such day for which no payment has been received) and (y) on the Revolving Credit
Termination Date (for the period ended on such date for which no payment has been received pursuant to clause (x) above), and shall
be computed for each day during such period at a rate per annum equal to the Commitment Fee Rate in effect on such day to be calculated
based on the actual amount of the Available Revolving Credit Commitment (in each case, assuming for this purpose that there is no reference
to Swingline Loans in clause (b)(i) of the definition of Available Revolving Credit Commitment) in effect on such day.
(b) Without
duplication, the Borrower agrees to pay to the Letter of Credit Issuer for its own account a fronting fee (the “Fronting Fee”)
with respect to each Letter of Credit issued by such Letter of Credit Issuer on the Borrower’s behalf, computed at the rate for
each day for the period from and including the date of issuance of such Letter of Credit to but excluding the termination or expiration
date of such Letter of Credit equal to 0.125% per annum (or such other percentage per annum as may be agreed between the applicable Letter
of Credit Issuer and the Borrower), times the actual daily Stated Amount of such Letter of Credit. The Fronting Fee shall be due
and payable quarterly in arrears on the last Business Day of each March, June, September and December, and on the Revolving Credit
Termination Date.
(c) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender, pro rata according to the Letter
of Credit Exposure of such Lender, a fee in Dollars in respect of each Letter of Credit (the “Letter of Credit Fee”),
for the period from and including the date of issuance of such Letter of Credit to but excluding the termination or expiration date of
such Letter of Credit, computed at the per annum rate for each day equal to (x) the Applicable Margin for Eurodollar Loans then
in effect for Revolving Credit Loans times (y) the actual daily Stated Amount of such Letter of Credit. Each Letter of Credit
Fee shall be due and payable quarterly in arrears on the first Business Day following each March, June, September and December
and on the Revolving Credit Termination Date. If there is any change in the Applicable Margin during any quarter, the daily maximum amount
of each Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that
such Applicable Margin was in effect.
(d) The
Borrower agrees to pay directly to each Letter of Credit Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the Letter of Credit Issuer relating to Letters of Credit as from time
to time in effect. Such customary fees and standard costs and charges are due and payable within 10 Business Days after demand and are
nonrefundable.
(e) The
Borrower agrees to pay to the Administrative Agent the administrative agency fees in the amounts and on the dates as set forth in the
Fee Letter.
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4.2
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Voluntary
Reduction of Commitments.
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(a) Upon
the prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at the Administrative Agent’s
Office (in which case the Administrative Agent shall promptly notify each of the Lenders), the Borrower shall have the right, without
premium or penalty, on any day, permanently to terminate or reduce the Commitments of any Class, as determined by the Borrower, in whole
or in part; provided that (a) any such notice shall be received by the Administrative Agent not later than 1:00 p.m., at
least two Business Days prior to the proposed date of termination or reduction, (b) any such termination or reduction shall apply
proportionately and permanently to reduce the Commitments of each of the Lenders within such Class, except that, notwithstanding the
foregoing, (1) the Borrower may allocate any termination or reduction of Commitments among Classes of Commitments at its direction
(including, for the avoidance of doubt, to the Commitments with respect to any Class of Extended Revolving Credit Commitments without
any termination or reduction of the Commitments with respect to any Existing Revolving Credit Commitments of the same Specified Existing
Revolving Credit Commitment Class) and (2) in connection with the establishment on any date of any Extended Revolving Credit Commitments
pursuant to Section 2.15, the Existing Revolving Credit Commitments of any one or more Lenders providing any such Extended Revolving
Credit Commitments on such date shall be reduced in an amount equal to the amount of Specified Existing Revolving Credit Commitments
so extended on such date (or, if agreed by the Borrower and the Lenders providing such Extended Revolving Credit Commitments, by any
greater amount so long as (a) a proportionate reduction of the Specified Existing Revolving Credit Commitments has been offered
to each Lender to whom the applicable Revolving Credit Extension Request has been made (which may be conditioned upon such Lender becoming
an Extending Lender), and (b) the Borrower prepays the Existing Revolving Credit Loans of such Class owed to such Lenders providing
such Extended Revolving Credit Commitments to the extent necessary to ensure that, after giving pro forma effect to such repayment or
reduction, the Existing Revolving Credit Loans of such Class are held by the Lenders of such Class on a pro rata basis
in accordance with their Existing Revolving Credit Commitments of such Class after giving pro forma effect to such reduction) (provided
that (x) after giving pro forma effect to any such reduction and to the repayment of any Loans made on such date, the aggregate
amount of the revolving credit exposure of any such Lender does not exceed the Existing Revolving Credit Commitment thereof (such revolving
credit exposure and Revolving Credit Commitment being determined in each case, for the avoidance of doubt, exclusive of such Lender’s
Extended Revolving Credit Commitment and any exposure in respect thereof) and (y) for the avoidance of doubt, any such repayment
of Loans contemplated by the preceding clause shall be made in compliance with the requirements of Section 5.3(a) with respect
to the ratable allocation of payments hereunder, with such allocation being determined after giving pro forma effect to any conversion
or exchange pursuant to Section 2.15 of Existing Revolving Credit Commitments and Existing Revolving Credit Loans into Extended
Revolving Credit Commitments and Extended Revolving Credit Loans respectively, and prior to any reduction being made to the Commitment
of any other Lender), (c) any partial reduction pursuant to this Section 4.2 shall be in an aggregate amount of at least $1,000,000
or any whole multiple of $1,000,000 in excess thereof, (d) after giving pro forma effect to such termination or reduction and to
any prepayments of Loans or cancellation or Cash Collateralization of Letters of Credit made on the date thereof in accordance with this
Agreement, the aggregate amount of the Lenders’ revolving credit exposures for such Class shall not exceed the Total Revolving
Credit Commitment for such Class, (e) after giving pro forma effect to such termination or reduction and to any prepayments of Additional/Replacement
Revolving Credit Loans of any Class or cancellation or cash collateralization of letters of credit made on the date thereof in accordance
with this Agreement, the aggregate amount of such Lenders’ revolving credit exposures for such Class shall not exceed the
Total Additional/Replacement Revolving Credit Commitment for such Class and the aggregate amount of the Lenders’ revolving
credit exposure for all Classes shall not exceed the Total Revolving Credit Commitment for all Classes, and (f) if, after giving
pro forma effect to any reduction hereunder, the Letter of Credit Commitment or the Swingline Commitment exceeds the sum of the Total
Revolving Credit Commitment and the Total Additional/Replacement Revolving Credit Commitment (if any), such Commitment shall be automatically
reduced by the amount of such excess.
(b) Upon
at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent
and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the applicable Revolving Credit
Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Sub-Commitment, in whole
or in part; provided that, after giving pro forma effect to such termination or reduction, the Letter of Credit Obligations shall
not exceed the Letter of Credit Sub-Commitment.
(c) Notwithstanding
anything to the contrary set forth in Section 4.2(a), the Borrower may terminate the unused amount of the Commitment of a Defaulting
Lender upon not less than two (2) Business Days’ prior notice to the Administrative Agent (which will promptly notify the
Lenders thereof), and in such event the provisions of Section 2.16(f) will apply to all amounts thereafter paid by the Borrower
for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts);
provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent,
any Letter of Credit Issuer, any Swingline Lender or any Lender may have against such Defaulting Lender.
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4.3
|
Mandatory
Termination of Commitments.
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(a) The
Initial Term Loan Commitments described in clause (a) of the definition thereof shall terminate upon the occurrence of the Closing
Date and, the Initial Term Loan Commitments described in clause (b)
of the definition thereof shall terminate upon the occurrence of the First Incremental Agreement Effective Date and
(c) the Initial Term Loan Commitments described in clause (c) of the definition thereof shall terminate upon the
occurrence of the Second Incremental Agreement Effective Date.
(b) The
Total Revolving Credit Commitment shall terminate at 2:00 p.m. (New York City time) on the Revolving Credit Maturity Date.
(c) The
Swingline Commitments shall terminate at 2:00 p.m. (New York City time) on the Swingline Maturity Date.
(d) The
Incremental Term Loan Commitment for any Class shall, unless otherwise provided in the documentation governing such Incremental
Term Loan Commitment, terminate at 5:00 p.m. (New York City time) on the Incremental Facility Closing Date for such Class.
(e)
The Additional/Replacement Revolving Credit Commitment for any
Class shall terminate at 5:00 p.m. (New York City time) on the maturity date for such Class specified in the documentation
governing such Class.
(f) The
Extended Loan/Commitment for any Extension Series shall terminate at 5:00 p.m. (New York City time) on the maturity date for
such Class specified in the Extension Agreement.
SECTION 5. Payments.
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5.1
|
Voluntary
Prepayments.
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(a)
The Borrower shall have the right to prepay Term Loans, Revolving Credit Loans, Extended Revolving Credit Loans and
Additional/Replacement Revolving Credit Loans and Swingline Loans, without, except as set forth in Section 5.1(b), premium or
penalty, in whole or in part from time to time on the following terms and conditions: (1) the Borrower shall give the Administrative
Agent at the Administrative Agent’s Office written notice (or telephonic notice promptly confirmed in writing) of its intent
to make such prepayment, the amount of such prepayment and in the case of Eurodollar Loans, the specific Borrowing(s) pursuant to
which made, which notice shall be in the form attached hereto as Exhibit N and be given by the Borrower no later than 1:00
p.m. (New York City time) (x) on the date of such prepayment (in the case of ABR Loans, including Swingline Loans) or
(y) three Business Days prior to (in the case of Eurodollar Loans), and, in each case, the Administrative Agent shall promptly
notify each of the relevant Lenders or the relevant Swingline Lender, as the case may be, (2) each partial prepayment of any
Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple of $500,000 and in an aggregate principal amount of at
least $1,000,000 and each partial prepayment of Swingline Loans shall be in a multiple of $100,000 and in an aggregate principal
amount of at least $100,000; provided that no partial prepayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
for Eurodollar Loans and (3) any prepayment of Eurodollar Loans pursuant to this Section 5.1 on any day other than the
last day of an Interest Period applicable thereto shall be subject to compliance by the Borrower with the applicable provisions of
Section 2.11. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans
to be prepaid. Each prepayment in respect of any Class of Term Loans pursuant to this Section 5.1 shall be applied to
reduce the Repayment Amounts in such order as the Borrower may determine and may be applied to any Class of Term Loans as
directed by the Borrower. For the avoidance of doubt, the Borrower may (i) prepay Term Loans of an Existing Term Loan
Class pursuant to this Section 5.1 without any requirement to prepay Extended Term Loans that were converted or exchanged
from such Existing Term Loan Class and (ii) prepay Extended Term Loans pursuant to this Section 5.1 without any
requirement to prepay Term Loans of an Existing Term Loan Class that were converted or exchanged for such Extended Term Loans.
In the event that the Borrower does not specify the order in which to apply prepayments to reduce Repayment Amounts or as between
Classes of Term Loans, the Borrower shall be deemed to have elected that such proceeds be applied to reduce the Repayment Amounts in
direct order of maturity and/or a pro rata basis among Term Loan Classes. All prepayments under this Section 5.1 shall also be
subject to the provisions of Sections 5.2(d) and 5.2(e). At the Borrower’s election in connection with any prepayment
pursuant to this Section 5.1, such prepayment shall not be applied to any Loan of a Defaulting Lender.
(b) Notwithstanding
anything to the contrary contained in this Agreement, at the time of the effectiveness of any Repricing Transaction (including any
Incurrence of Incremental Term Loans pursuant to the proviso of Section 2.14(b) in respect of Initial Term Loans) that is
consummated prior to the six-month anniversary of the First Second
Incremental Agreement Effective Date (the “Prepayment Premium Period”), the Borrower agrees to pay to the
Administrative Agent, for the ratable account of each Lender with outstanding Initial Term Loans, a fee in an amount equal to 1.0%
of (x) in the case of a Repricing Transaction of the type described in clause (a) of the definition thereof, the aggregate
principal amount of all Initial Term Loans prepaid (or converted or exchanged) in connection with such Repricing Transaction and
(y) in the case of a Repricing Transaction described in clause (b) of the definition thereof, the aggregate principal
amount of all Initial Term Loans outstanding on such date that are subject to an effective pricing reduction pursuant to such
Repricing Transaction. Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction. For the
avoidance of doubt, on and after the date that is six months following the First Second Incremental
Agreement Effective Date, no fee shall be payable pursuant to this Section 5.1(b).
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5.2
|
Mandatory
Prepayments.
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(a)
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Term
Loan Prepayments.
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(i) On
each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after the receipt of Net Cash Proceeds
from a Debt Incurrence Prepayment Event and within five Business Days after the receipt of Net Cash Proceeds in connection with the
occurrence of any other Prepayment Event, offer to prepay (or, in the case of a Debt Incurrence Prepayment Event arising from
(A) the Incurrence of Incremental Term Loans in reliance on clause (x) of the proviso to Section 2.14(b),
(B) the Incurrence of Permitted Additional Debt in reliance on clause (x) of Section 10.1(u)(i) or (C) to
the extent relating to Term Loans, the Incurrence of any Credit Agreement Refinancing Indebtedness (any of the foregoing, a
“Specified Debt Incurrence Prepayment Event”), prepay), in accordance with Sections 5.2(c) and
5.2(d) below, without premium or penalty (other than to the extent any such Debt Incurrence Prepayment Event would constitute a
Repricing Transaction), a principal amount of Term Loans in an amount equal to 100% of the Net Cash Proceeds from such Prepayment
Event; provided that, in the case of Net Cash Proceeds from an Asset Sale Prepayment Event or a Recovery Prepayment Event,
the Borrower may use cash in an amount not to exceed the amount of such Net Cash Proceeds to prepay, redeem, defease, acquire
repurchase or make a similar payment to any Permitted Equal Priority Refinancing Debt or any Permitted Additional Debt secured by a
Lien on the Collateral that ranks equal in priority to the Liens on such Collateral securing the Obligations (but without regard to
the control of remedies), in each case the documentation with respect to which requires the issuer or borrower under such
Indebtedness to prepay or make an offer to prepay, redeem, repurchase, defease, acquire or satisfy and discharge such Indebtedness
with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (1) the amount of such Net
Cash Proceeds multiplied by (2) a fraction, the numerator of which is the outstanding principal amount of the Permitted Equal
Priority Refinancing Debt and Permitted Additional Debt secured by a Lien on the Collateral that ranks equal in priority to the
Liens on such Collateral securing the Obligations (but without regard to control of remedies) and with respect to which such a
requirement to prepay or make an offer to prepay, redeem, repurchase, defease, acquire or satisfy and discharge exists and the
denominator of which is the sum of the outstanding principal amount of such Permitted Equal Priority Refinancing Debt and Permitted
Additional Debt and the outstanding principal amount of Term Loans; provided, further, that in the case of Net Cash Proceeds from an
Asset Sale Prepayment Event or a Recovery Prepayment Event, (A) the percentage in this Section 5.2(a)(i) shall be
reduced to 50.0% if the Borrower’s Consolidated First Lien Debt to Consolidated EBITDA Ratio, as such ratio is calculated as
of the last day of the Test Period most recently ended on or prior to the date the Net Cash Proceeds are required to be offered, is
less than or equal to 4.75 to 1.00 but greater than 4.25 to 1.00 and (B) no payment of any Term Loans shall be required under
this Section 5.2(a)(i) if the Borrower’s Consolidated First Lien Debt to Consolidated EBITDA Ratio, as such ratio is
calculated as of the last day of the Test Period most recently ended on or prior to the date the Net Cash Proceeds are required to
be offered, is less than or equal to 4.25 to 1.00.
(ii) Not
later than the date that is ten Business Days following the date Section 9.1 Financials are required to be delivered under Section 9.1(a) (commencing
with the Section 9.1 Financials to be delivered with respect to the fiscal year ending December 31, 2018), the Borrower shall
offer to prepay, in accordance with Sections 5.2(c) and 5.2(d) below, without premium or penalty, an aggregate principal amount
of Term Loans equal to (x) 50.0% of Excess Cash Flow for such fiscal year minus (y) at the Borrower’s option,
(1) the aggregate principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1, (2) the aggregate principal
amount of Revolving Credit Loans, Extended Revolving Credit Loans and Additional/Replacement Revolving Credit Loans and other revolving
loans that are effective in reliance on Section 10.1(a) or Section 10.1(u) voluntarily prepaid pursuant to Section 5.1
to the extent accompanied by a permanent reduction of such Revolving Credit Commitments, Incremental Revolving Credit Commitment
Increases, Extended Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments or other revolving commitments,
as applicable, in an equal amount pursuant to Section 4.2 (or equivalent provision governing such revolving credit facility) and
(3) the aggregate amount of cash consideration paid by any Purchasing Borrower Party (other than Holdings) to effect any assignment
to it of Term Loans pursuant to Section 13.6(g) (but only to the extent that such Term Loans have been cancelled) but excluding
the aggregate principal amount of any such voluntary prepayments and any such assignments made with the proceeds of Incurrences of long-term
Indebtedness or issuances of Capital Stock), in each case during such fiscal year or after year-end and prior to the time such prepayment
pursuant to this Section 5.2(a)(ii) is due; provided that, in the case that Excess Cash Flow is required to be offered to prepay
any Term Loans, the Borrower may use cash in an amount not to exceed the amount of such Excess Cash Flow required to be offered to prepay
the Term Loans to prepay, redeem, defease, acquire, repurchase or make a similar payment to any Permitted Equal Priority Refinancing
Debt or any Permitted Additional Debt secured by a Lien on the Collateral that ranks equal in priority to the Liens on such Collateral
securing the Obligations (but without regard to the control of remedies), in each case the documentation with respect to which requires
the issuer or borrower under such Indebtedness to prepay or make an offer to prepay, redeem, repurchase, defease, acquire or satisfy
and discharge such Indebtedness with a percentage of Excess Cash Flow, in each case in an amount not to exceed the product of (1) the
amount of such Excess Cash Flow required to be offered to prepay the Term Loans multiplied by (2) a fraction, the numerator
of which is the outstanding principal amount of the Permitted Equal Priority Refinancing Debt and Permitted Additional Debt secured by
a Lien on the Collateral that ranks equal in priority to the Liens on such Collateral securing the Obligations (but without regard to
control of remedies) and with respect to which such a requirement to prepay or make an offer to prepay, redeem, repurchase, defease,
acquire or satisfy and discharge exists and the denominator of which is the sum of the outstanding principal amount of such Permitted
Equal Priority Refinancing Debt and Permitted Additional Debt and the outstanding principal amount of Term Loans; provided, further,
that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Borrower’s Consolidated First
Lien Debt to Consolidated EBITDA Ratio for the fiscal year ended prior to such prepayment date is less than or equal to 4.75 to 1.00
but greater than 4.25 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if
the Consolidated First Lien Debt to Consolidated EBITDA Ratio for the fiscal year ended prior to such prepayment date is less than or
equal to 4.25 to 1.00. Any prepayment amounts credited pursuant to subclause (y) above against such amount in subclause (x)
above shall be without duplication of any such credit in any prior or subsequent fiscal year.
(b) Repayment
of Revolving Credit Loans. If, on any date, the aggregate amount of the Lenders’ Revolving Credit Exposures in respect of any
Class of Revolving Credit Loans for any reason exceeds 100% of the Revolving Credit Commitment of such Class then in effect,
the Borrower shall forthwith repay on such date the principal amount of Swingline Loans of such Class, and after all such Swingline Loans
have been paid in full, the Revolving Credit Loans of such Class in an amount equal to such excess. If, after giving pro forma effect
to the prepayment of all outstanding Swingline Loans and Revolving Credit Loans of such Class, the Revolving Credit Exposures of such
Class exceeds the Revolving Credit Commitment of such Class then in effect, the Borrower shall Cash Collateralize the Letters
of Credit outstanding in relation to such Class to the extent of such excess.
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(c)
|
Application
to Repayment Amounts.
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(i) Subject
to clause (ii) of this Section 5.2(c), the first proviso to Section 5.2(a)(i) and the first proviso to Section 5.2(a)(ii),
(A) each prepayment of Term Loans required by Sections 5.2(a)(i) and (ii) (other than in connection with a Debt Incurrence
Prepayment Event) shall be allocated to the Classes of Term Loans outstanding, pro rata, based upon the applicable remaining Repayment
Amounts due in respect of each such Class of Term Loans (excluding any Class of Term Loans that has agreed to receive a less
than pro rata share of any such mandatory prepayment and taking into account any reduction in the amount of any required Excess Cash
Flow payment to any Class of Term Loans that have been subject to a Section 13.6(g) transaction), shall be applied pro
rata to Lenders within each Class, based upon the outstanding principal amounts owing to each such Lender under each such Class of
Term Loans and shall be applied to reduce such scheduled Repayment Amounts within each such Class in accordance with Section 5.2(d)(ii)
and (B) each prepayment of Term Loans required by Section 5.2(a)(i) in connection with a Debt Incurrence Prepayment Event
shall be allocated to any Class of Term Loans outstanding as directed by the Borrower (subject to the requirement that the proceeds
of any Specified Debt Incurrence Prepayment Event shall in all cases be applied to prepay or repay the applicable Refinanced Indebtedness),
shall be applied pro rata to Lenders within each such Class, based upon the outstanding principal amounts owing to each such Lender under
each such Class of Term Loans and shall be applied to reduce such scheduled Repayment Amounts within each such Class in accordance
with Section 5.2(d)(ii); provided that, with respect to the allocation of such prepayments under clause (A) above only, between
an Existing Term Loan Class and Extended Term Loans of the same Extension Series, the Borrower may allocate such prepayments as
the Borrower may specify, subject to the limitation that the Borrower shall not allocate to Extended Term Loans of any Extension Series any
such mandatory prepayment under such clause (A) unless such prepayment is accompanied by at least a pro rata prepayment, based upon
the applicable remaining Repayment Amounts due in respect thereof, of the Term Loans of the Existing Term Loan Class, if any, from which
such Extended Term Loans were converted or exchanged (or such Term Loans of the Existing Term Loan Class have otherwise been repaid
in full).
(ii) With
respect to each such prepayment required by Section 5.2(a)(i) and Section 5.2(a)(ii) (other than any Debt Incurrence
Prepayment Event), (A) the Borrower will, not later than the date specified in Section 5.2(a) for offering to make such
prepayment, give the Administrative Agent, written notice requesting that the Administrative Agent provide notice of such prepayment
to each Lender and the Administrative Agent will promptly provide such notice to each Lender, (B) other than if such prepayment
arises due to a Specified Debt Incurrence Prepayment Event, each Lender of Term Loans will have the right to refuse any such prepayment
by giving written notice of such refusal to the Administrative Agent and the Borrower within three Business Days after such Lender’s
receipt of notice from the Administrative Agent of such prepayment, and to the extent any such prepayment is so refused, such amounts
may be retained by the Borrower (the “Retained Refused Proceeds”) and (C) the Borrower will make all such prepayments
not so refused upon the tenth Business Day after the Lender received first notice of repayment from the Administrative Agent.
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(d)
|
Application
to Term Loans.
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(i) With
respect to each prepayment of Term Loans elected by the Borrower pursuant to Section 5.1 or pursuant to a Specified Debt Incurrence
Prepayment Event, such prepayments shall be applied to reduce Repayment Amounts in such order as the Borrower may specify (or, if not
specified, in direct order of maturity) and the Borrower may designate the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant
to which made; provided that the Borrower pays any amounts, if any, required to be paid pursuant to Section 2.11 with respect to
prepayments of Eurodollar Loans made on any date other than the last day of the applicable Interest Period. In the absence of a designation
by the Borrower as described in the preceding sentence, the Administrative Agent, shall, subject to the above, make such designation
in a manner that minimizes the amount of payments required to be made by the Borrower pursuant to Section 2.11.
(ii) With
respect to each prepayment of Term Loans by the Borrower required pursuant to Section 5.2(a) (other than in respect of a Specified
Debt Incurrence Prepayment Event) such prepayments shall be applied to reduce Repayment Amounts in direct order of maturity and on a
pro rata basis to the then outstanding Term Loans (other than any Class of Term Loans that has agreed to receive a less than pro
rata share of any such mandatory prepayment) being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurodollar
Loans; provided that, if no Lender exercises the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 5.2(c)(ii),
then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are
ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans in a manner that minimizes the amount
of any payments required to be made by the Borrower pursuant to Section 2.11.
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(e)
|
Application
to Revolving Credit Loans; Mandatory Commitment Reduction.
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(i) With
respect to each prepayment of Revolving Credit Loans, Extended Revolving Credit Loans and Additional/Replacement Revolving Credit Loans
elected by the Borrower pursuant to Section 5.1 or required by Section 5.2(b), the Borrower may designate (i) the Class and
Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which such Loans were made and (ii) the Class of
Revolving Credit Loans, Extended Revolving Credit Loans or Additional/Replacement Revolving Credit Loans to be prepaid; provided that
(x) Eurodollar Loans may be designated for prepayment pursuant to this Section 5.2 only on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans with Interest Periods ending on such date of required prepayment and all ABR Loans have been paid
in full; (y) each prepayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans of such
Class (except that any prepayment made in connection with a reduction of the Commitments of such Class pursuant to Section 4.2
shall be applied pro rata based on the amount of the reduction in the Commitments of such Class of each applicable Lender); and
(z) notwithstanding the provisions of the preceding clause (y), at the option of the Borrower, no prepayment made pursuant to Section 5.1
or Section 5.2(b) of Revolving Credit Loans, Extended Revolving Credit Loans or Additional/Replacement Revolving Credit Loans
of any Class shall be applied to the Loans of any Defaulting Lender. In the absence of a designation by the Borrower as described
in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in a manner that minimizes the
amount of any payments required to be made by the Borrower pursuant to Section 2.11.
(ii) With
respect to each mandatory reduction and termination of Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments
(and any previously extended Extended Revolving Credit Commitments) required by either clause (i) or (ii) of the proviso to
Section 2.14(b), by Section 10.1(u)(i) or in connection with the Incurrence of any Credit Agreement Refinancing Indebtedness
Incurred to Refinance any Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments and/or Extended Revolving
Credit Commitments, the Borrower may designate (A) the Classes of Commitments to be reduced and terminated and (B) the corresponding
Classes of Loans to be prepaid; provided that (x) any such reduction and termination shall apply proportionately and permanently
to reduce the Commitments of each of the Lenders within any such Class and (y) after giving pro forma effect to such termination
or reduction and to any prepayments of Loans or cancellation or cash collateralization of letters of credit made on the date of each
such reduction and termination in accordance with this Agreement, the aggregate amount of such Lenders’ credit exposures shall
not exceed the remaining Commitments of such Lenders’ in respect of the Class reduced and terminated. In connection with any
such termination or reduction, to the extent necessary, the participations hereunder in outstanding Letters of Credit and Swingline Loans
may be required to be reallocated and related loans outstanding prepaid and then reborrowed, in each case in the manner contemplated
by Section 2.14(f)(ii) (as modified to account for a termination or reduction, as opposed to an increase, of such Commitment).
(f) Eurodollar
Interest Periods. In lieu of making any payment pursuant to this Section 5.2 in respect of any Eurodollar Loan other than on
the last day of the Interest Period thereof, so long as no Default or Event of Default shall have occurred and be continuing, the Borrower
at its option may deposit with the Administrative Agent an amount equal to the amount of the Eurodollar Loan to be prepaid and such Eurodollar
Loan shall be repaid on the last day of the Interest Period therefor in the required amount. Such deposit shall be held by the Administrative
Agent in a corporate time deposit account established on terms reasonably satisfactory to the Administrative Agent, earning interest
at the then-customary rate for accounts of such type. Such deposit shall constitute cash collateral for the Obligations; provided
that the Borrower may at any time direct that such deposit be applied to make the applicable payment required pursuant to this Section 5.2.
(i) No
prepayment shall be required pursuant to Section 5.2(a)(i) (except to the extent such prepayment arises due to a Debt Incurrence
Prepayment Event) unless and until the amount at any time of Net Cash Proceeds from Prepayment Events required to be offered at or prior
to such time pursuant to such Section and not yet offered at or prior to such time to prepay Term Loans pursuant to such Section exceeds
(i) $5,000,000 for any single Prepayment Event or series of related Prepayment Events and (ii) $10,000,000 in the aggregate
for all such Prepayment Events in any fiscal year, at which time the amount in excess of $5,000,000 or $10,000,000, as the case may be,
will be offered to be prepaid as provided in Section 5.2(a)(i), with the date of receipt of such Net Cash Proceeds being deemed
for such purpose to be the date such thresholds set forth in clauses (i) and (ii) of this clause (g) are met.
(ii) No
prepayment shall be required pursuant to Section 5.2(a)(ii) unless and until the amount of Excess Cash Flow required to be
offered to prepay Term Loans for a fiscal year pursuant to such Section exceeds $2,500,000, at which time the amount in excess of
$2,500,000, will be offered to be prepaid as provided in Section 5.2(a)(ii).
(h) Non-Credit
Party Asset Sales. Notwithstanding any other provisions of this Section 5.2(h), (i) to the extent that any of or all the
Net Cash Proceeds of any asset sale by a Non-Credit Party giving rise to an Asset Sale Prepayment Event (a “Non-Credit Party
Asset Sale”), the Net Cash Proceeds of any Recovery Event from a Non-Credit Party (a “Non-Credit Party Recovery Event”)
or Excess Cash Flow, are prohibited, delayed or restricted by applicable local law, rule or regulation (including financial assistance
and corporate benefit restrictions and statutory duties of the relevant directors) from being repatriated or expatriated to the United
States or from being distributed to a Credit Party, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be
required to be applied to repay Term Loans at the times provided in this Section 5.2(h) but may be retained by the applicable
Non-Credit Party so long, but only so long, as the applicable local law, rule or regulation will not permit repatriation to the
United States or expatriation or distribution to a Credit Party (the Borrower hereby agreeing to cause the applicable Non-Credit Party
to promptly take all commercially reasonable actions available under applicable local law, rule or regulation to permit such repatriation,
expatriation or distribution), and once such repatriation, expatriation or distribution of any of such affected Net Cash Proceeds or
Excess Cash Flow is permitted under the applicable local law, rule or regulation, such repatriation, expatriation or distribution
will be immediately effected and such repatriated, expatriated or distributed Net Cash Proceeds or Excess Cash Flow will be promptly
(and in any event not later than two Business Days after such repatriation, expatriation or distribution) applied (net of additional
taxes payable or reserved against as a result thereof) to the repayment of the Term Loans (and, if applicable, such other Indebtedness
as is contemplated by this Section 5.2(h)) pursuant to this Section 5.2(h) and (ii) to the extent that the Borrower
has determined in good faith that such repatriation or expatriation of any of or all the Net Cash Proceeds of any Non-Credit Party Asset
Sale, any Non-Credit Party Recovery Event or Excess Cash Flow would have a material adverse tax cost consequence with respect to such
Net Cash Proceeds or Excess Cash Flow (but only for so long as such material adverse tax cost consequence exists), the Net Cash Proceeds
or Excess Cash Flow so affected may be retained by the applicable Non-Credit Party; provided that, in the case of this clause
(ii), on or before the date on which any Net Cash Proceeds from any Non-Credit Party Asset Sale or Non-Credit Party Recovery Event so
retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to Section 5.2(a) (or, in
the case of Excess Cash Flow, a date on or before the date that is six months after the date such Excess Cash Flow would have been so
required to be applied to prepayments pursuant to Section 5.2(a)(ii) unless previously repatriated or expatriated in which
case such repatriated or expatriated Excess Cash Flow shall have been promptly applied to the repayment of the Term Loans pursuant to
Section 5.2(a)), (x) the Borrower applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments
or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Non-Credit Party,
less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had
been repatriated or expatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such
Non-Credit Party) or (y) such Net Cash Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Non-Credit
Party.
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5.3
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Method
and Place of Payment.
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(a) All
payments under this Agreement shall be made by the Borrower, without set-off, counterclaim or deduction of any kind. Except as otherwise
specifically provided in this Agreement, all payments by the Borrower under this Agreement shall be made in Dollars to the Administrative
Agent for the ratable account of the applicable Lenders entitled thereto, the applicable Letter of Credit Issuer or the Swingline Lender
(except to the extent payments are to be made directly to such Letter of Credit Issuer or the Swingline Lender), as the case may be,
not later than 2:00 p.m. (New York City time) on the date when due and shall be made in immediately available funds at the Administrative
Agent’s Office it being understood that written, electronic or facsimile notice by the Borrower to the Administrative Agent to
make a payment from the funds in the Borrower’s account at the Administrative Agent’s Office shall constitute the making
of such payment to the extent of such funds held in such account. The Administrative Agent will thereafter cause to be distributed on
the same day (if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York City time) on such day and,
if not, on the next Business Day in the Administrative Agent’s sole discretion) like funds relating to the payment of principal
or interest or Fees ratably to the Lenders entitled thereto or to the Letter of Credit Issuer or the Swingline Lender, as applicable.
(b) For
purposes of computing interest or fees, any payments under this Agreement that are made later than 2:00 p.m. (New York City time)
shall be deemed to have been made on the next succeeding Business Day in the Administrative Agent’s sole discretion (and the Administrative
Agent may extend such deadline in its discretion whether or not such payments are in process). Except as otherwise provided in this Agreement,
whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension
at the applicable rate in effect immediately prior to such extension.
(a) Except
as required by law, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document shall be made
free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority (including any interest, additions to tax and penalties) (collectively, “Taxes”) excluding
in the case of each Lender and each Agent and except as otherwise provided in Section 5.4(f), (A) net income Taxes and franchise
Taxes (imposed in lieu of net income Taxes) imposed on such Agent or such Lender as a result of (i) such Agent or such Lender having
been organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located
in, the jurisdiction imposing such Tax or (ii) a present or former connection between such Agent or such Lender and the jurisdiction
imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising from such
Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, or engaged in
any other transactions pursuant to, this Agreement or any other Credit Document), (B) any branch profits Taxes imposed by the United
States of America or any similar Tax imposed by any other jurisdiction described in clause (A) and (C) any U.S. federal withholding
Tax imposed pursuant to FATCA (collectively, “Excluded Taxes”). If any such non-Excluded Taxes imposed on or with
respect to any payment by or on account of any obligation of any Credit Party under Credit Documents (“Non-Excluded Taxes”)
are required to be withheld by a Withholding Agent from any amounts payable under this Agreement or any other Credit Document, the applicable
Credit Party shall increase the amounts payable to the Administrative Agent or such Lender to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes including those applicable to any amounts payable under this Section 5.4)
interest or any such other amounts payable hereunder at the rates or in the amounts specified in such Credit Document. Whenever any withholding
Taxes are payable by any Credit Party in respect of amounts payable under any Credit Document, promptly thereafter, the applicable Credit
Party shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt, if available (or other evidence acceptable to such Lender, acting reasonably) received by the applicable
Credit Party showing payment thereof. The agreements in this Section 5.4 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) In
addition, each Credit Party shall pay any present or future stamp, documentary, filing, mortgage, recording, property or intangible taxes,
charges or similar levies that arise from any payment made by such Credit Party hereunder or under any other Credit Documents or from
the execution, delivery or registration or recordation of, performance under, or otherwise with respect to, this Agreement or the other
Credit Documents, except any taxes imposed as a result of a present or former connection between an assignee and the jurisdiction imposing
such tax (other than a connection arising solely from an assignee having executed, delivered, become a party to, performed its obligations
under, received or perfected a security interest under, engaged in any transaction pursuant to, or enforced this Agreement) with respect
to an assignment (other than an assignment requested by a Credit Party) (hereinafter referred to as “Other Taxes”).
(c) (i) Subject
to Section 5.4(f), the Credit Parties shall jointly and severally indemnify each Lender and each Agent for and hold them harmless
against the full amount of Non-Excluded Taxes and Other Taxes, and for the full amount of Non-Excluded Taxes and Other Taxes payable,
imposed or asserted (whether or not correctly or legally asserted) by any jurisdiction on any additional amounts or indemnities payable
under this Section 5.4, imposed on or paid by such Lender or such Agent (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect thereto; provided that if any claim pursuant to this
Section 5.4(c)(i) is made later than 180 days after the date on which the relevant Lender or Agent had actual knowledge of
the relevant Non-Excluded Taxes or Other Taxes, then the Credit Parties shall not be required to indemnify the applicable Lender or Agent
for any penalties which accrue in respect of such Non- Excluded Taxes or Other Taxes after the 180th day. This indemnification shall
be made within 30 days from the date such Lender or such Agent (as the case may be) makes written demand therefor.
(ii)
Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand
therefor, (x) the Administrative Agent against any Non-Excluded Taxes attributable to such Lender (but only to the extent that
any Credit Party has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the
obligation of Credit Parties to do so), (y) the Administrative Agent and the Credit Parties, as applicable, against any Taxes
attributable to such Lender’s failure to comply with the provisions of Section 13.6(d)(ii) relating to the
maintenance of a Participant Register and (z) the Administrative Agent and the Credit Parties, as applicable, against any
Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent or the Credit Parties in connection
with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement
or any other Credit Document against any amount due to the Administrative Agent under this clause (ii).
(d) Each
Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative
Agent with any documentation prescribed by any Applicable Law or reasonably requested by the Borrower or the Administrative Agent (A) as
will permit such payments to be made without, or at a reduced rate of, withholding or (B) as will enable the Borrower or the Administrative
Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each such Lender
shall, whenever a lapse in time or change in circumstances renders such documentation obsolete, expired or inaccurate in any material
respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new
documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative
Agent of its inability to do so. Notwithstanding anything herein to the contrary, the completion, execution and submission of such documentation
(other than such documentation set forth in Sections 5.4(d)(i), 5.4(e) and 5.4(g) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or
would materially prejudice the legal or commercial position of such Lender. Without limiting the foregoing to the extent permitted by
law, each Lender that is not a United States person within the meaning of Section 7701(a)(30) of the Code (a “Non-U.S.
Lender”) shall:
(i) deliver
to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent) two properly executed originals of (w) in the case of Non-U.S.
Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to
payments of “portfolio interest,” United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate
representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code, is not a 10 percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the Code) substantially in the form of Exhibit K (a
“United States Tax Compliance Certificate”)), (x) United States Internal Revenue Service Form W- 8BEN, W-8BEN-E
or Form W-8ECI, (y) to the extent a Non-U.S. Lender is not the Beneficial Owner (for example, where the Non-U.S. Lender is
a partnership or a participating Lender), United States Internal Revenue Service Form W-8IMY (or any successor forms) of the Non-U.S.
Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, United States Tax Compliance Certificate, Form W-9, Form W-
8IMY or any other required information from each Beneficial Owner, as applicable (provided that, if one or more Beneficial Owners
are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Non-U.S. Lender on
behalf of such Beneficial Owner), and/or (z) any other form prescribed by applicable U.S. federal income Tax laws (including the
United States Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax
on any payments to such Lender under the Credit Documents, in each case properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments by the Borrower under this Agreement;
and
(ii) deliver
to the Borrower and the Administrative Agent two further originals of any such form or certification (or any applicable successor form)
on or before the date that any such form or certification expires or becomes obsolete or inaccurate and promptly after the occurrence
of any event requiring a change in the most recent form previously delivered by it to the Borrower;
unless in any such case any change in treaty,
law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable
or would prevent such Lender from duly completing and delivering any such form with respect to it. Each Lender shall promptly notify
the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered
form or certification to the Borrower or the Administrative Agent.
(e) If
a payment made to a Lender under this Agreement or any other Credit 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 Withholding Agent, at the time or times prescribed by law
and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding
Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has or
has not 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 Section 5.4(e), “FATCA” shall include any amendments made to FATCA after the date
of this Agreement.
(f) No
Credit Party shall be required to indemnify any Lender or Agent pursuant to Section 5.4(c), or to pay any additional amounts to
any Lender or Agent pursuant to Section 5.4(a) in respect of (i) U.S. federal withholding Taxes imposed under any law
in effect on the date such Lender acquired its interest in the applicable Loan, Commitment or Letter of Credit or changed its lending
office; provided, however, that this Section 5.4(f) shall not apply to the extent that (x) the indemnity
payments or additional amounts any Lender would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity
payment or additional amounts that the person making the assignment or change in lending office would have been entitled to receive immediately
prior to such assignment or change in lending office, or (y) such assignment had been requested by a Credit Party or (ii) Taxes
attributable to such Lender’s failure to comply with the provisions of Section 5.4(d), 5.4(e) or 5.4(g).
(g) Each
Lender that is organized in the United States of America or any state thereof or the District of Columbia shall (A) on or prior
to the date such Lender becomes a Lender hereunder, (B) on or prior to the date on which any such form or certification expires
or becomes obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously
delivered by it pursuant to this Section 5.4(g) and (D) from time to time if requested by the Borrower or the Administrative
Agent (or, in the case of a participant, the relevant Lender), provide the Administrative Agent and the Borrower (or, in the case of
a participant, the relevant Lender) with two duly completed and signed originals of United States Internal Revenue Service Form W-9
(certifying that such Lender is entitled to an exemption from U.S. backup withholding tax) or any successor form.
(h) If
any Lender or the Administrative Agent determines in its sole discretion, exercised in good faith, that it has received a refund of a
Non-Excluded Tax or Other Taxes for which a payment has been made by a Credit Party pursuant to this Agreement, which refund in the good-faith
judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by such Credit Party, then
such Lender or the Administrative Agent, as the case may be, shall reimburse the Credit Party for such amount (together with any interest
received thereon) as such Lender or the Administrative Agent, as the case may be, reasonably determines to be the proportion of the refund
as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required;
provided that the Credit Party, upon the request of such Lender, agrees to repay the amount paid over to the Credit Party (with
interest and penalties) in the event such Lender or the Administrative Agent is required to repay such refund to such Governmental Authority.
Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations
to any Credit Party in connection with this paragraph (h) or any other provision of this Section 5.4; provided, further,
that nothing in this Section 5.4 shall obligate any Lender (or Transferee) or the Administrative Agent to apply for any refund.
(i) For
purpose of this Section 5.4, the term “Lender” shall include any Swingline Lender and any Letter of Credit Issuer.
5.5 Computations
of Interest and Fees. All computations of interest and of fees shall be made by the Administrative Agent on the basis of a year of
360 days and, in the case of ABR Loans, 365 or 366 days, as the case may be, in each case for the actual number of days (including the
first day but excluding the last) occurring in the period for which such interest and fees are payable.
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5.6
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Limit
on Rate of Interest.
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(a) No
Payment Shall Exceed Lawful Rate. Notwithstanding any other term of this Agreement, the Borrower shall not be obliged to pay any
interest or other amounts under or in connection with this Agreement or any other Credit Document in excess of the amount or rate permitted
under or consistent with any Applicable Law.
(b) Payment
at Highest Lawful Rate. If the Borrower is not obliged to make a payment which it would otherwise be required to make, as a result
of Section 5.6(a), the Borrower shall make such payment to the maximum extent permitted by or consistent with Applicable Law.
(c) Adjustment
if Any Payment Exceeds Lawful Rate. If any provision of this Agreement or any of the other Credit Documents would obligate the Borrower
to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited
by any Applicable Law, or would result in receipt by an Agent or Lender of interest at a rate prohibited by any Applicable Law, then
notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount
or rate of interest, as the case may be, as would not be so prohibited by Applicable Law (in the case of the Borrower), such adjustment
to be effected, to the extent necessary, as follows:
(i) firstly,
by reducing the amount or rate of interest required to be paid by the Borrower to the affected Lender under Section 2.8; and
(ii) thereafter,
by reducing any fees, commissions, premiums and other amounts required to be paid by the Borrower to the affected Lender.
Notwithstanding the foregoing, and after giving
pro forma effect to all adjustments contemplated thereby, if any Lender shall have received from the Borrower an amount in excess of
the maximum permitted by any Applicable Law, then the Borrower shall be entitled, by notice in writing to the Administrative Agent, to
obtain reimbursement from such Lender in an amount equal to such excess, and pending such reimbursement, such amount shall be deemed
to be an amount payable by such Lender to the Borrower.
SECTION 6. Conditions
Precedent to Initial Credit Event. The occurrence of the initial Credit Event is subject to the satisfaction of the following conditions
precedent:
6.1 Credit
Documents. The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles (followed promptly
by originals), or electronic copies unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit
Party:
(a) this
Agreement, executed and delivered by (i) an Authorized Officer of each of Holdings and the Borrower, (ii) each Agent, (iii) each
Lender, (iv) the Swingline Lender and (v) each Letter of Credit Issuer;
(b) the
Guarantee, executed and delivered by an Authorized Officer of each Person that is a Guarantor as of the Closing Date;
(c) the
Security Agreement, executed and delivered by an Authorized Officer of Holdings, the Borrower and each other grantor party thereto as
of the Closing Date;
(d) the
Pledge Agreement, executed and delivered by an Authorized Officer of the Borrower and each other pledgor party thereto; and
(e) such
certificates of good standing (to the extent such concept exists) from the applicable secretary of state or other relevant Governmental
Authority of the jurisdiction of organization of each Credit Party.
(a) All
Capital Stock of the Borrower and all Capital Stock of each wholly owned Restricted Subsidiary of the Borrower directly owned by the
Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to the Pledge Agreement (except
that such Credit Parties shall not be required to pledge any Excluded Capital Stock) and the Collateral Agent shall have received all
certificates, if any, (except as permitted by Section 9.17) representing such securities pledged under the Pledge Agreement, accompanied
by instruments of transfer and undated stock powers endorsed in blank.
(b) (i) Except
with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in excess of $5,000,000
(individually) that is owing to Holdings, the Borrower or any Subsidiary Guarantor shall be evidenced by a promissory note and shall
have been pledged pursuant to the Pledge Agreement, and the Collateral Agent shall have received all such promissory notes, together
with undated instruments of transfer with respect thereto endorsed in blank.
(ii) All
Indebtedness of Holdings, the Borrower and each Restricted Subsidiary on the Closing Date that is owing to any Credit Party shall be
evidenced by the Intercompany Note, which shall be executed and delivered by Holdings, the Borrower and each Restricted Subsidiary on
the Closing Date and shall have been pledged pursuant to the Pledge Agreement, and the Collateral Agent shall have received such Intercompany
Note, together with undated instruments of transfer with respect thereto endorsed in blank; provided, however, that, if the Intercompany
Note cannot be delivered to the Collateral Agent on or prior to the Closing Date notwithstanding the Borrower’s use of commercially
reasonable efforts to do so, delivery thereof shall not be a condition to closing, and in such case the Borrower agrees to deliver same
to the Collateral Agent not later than 90 days following the Closing Date (or such later date as the Collateral Agent shall agree in
its discretion).
(c) All
documents and instruments, including UCC or other applicable personal property security financing statements and Intellectual Property
Security Agreements (as defined in the Security Agreement), required by Applicable Law or reasonably requested by the Collateral Agent
to be filed, registered or recorded to create the Liens intended to be created by the Security Documents on the Collateral owned by the
Borrower and the Guarantors and perfect such Liens in the United States to the extent required by, and with the priority required by,
the Security Documents shall have been filed, registered or recorded or delivered to the Collateral Agent in appropriate form for filing,
registration or recording under the UCC and with the United States Patent and Trademark Office or the United States Copyright Office,
as applicable.
(d) The
Collateral Agent shall have received a completed Perfection Certificate, dated as of the Closing Date and signed by an Authorized Officer
of the Borrower, together with all attachments contemplated thereby.
Notwithstanding anything to the contrary contained
in this Agreement or the other Credit Documents, to the extent any security interest in any Collateral is not or cannot be provided and/or
perfected on the Closing Date (other than the pledge and perfection of the security interests (i) in the certificated Capital Stock,
if any, of the Borrower and any wholly owned Domestic Restricted Subsidiary that is not an Immaterial Subsidiary (to the extent required
by Section 6.2(a)) and (ii) in other assets pursuant to which a security interest may be perfected by the filing of a financing
statement under the UCC) after the Borrower’s use of commercially reasonable efforts to do so or without undue burden or expense,
then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition to the initial Credit
Event to occur on the Closing Date and the Borrower agrees to deliver or cause to be delivered such documents and instruments, and take
or cause to be taken such other actions as may be required to provide and/or perfect such security interests, with respect to any certificated
Capital Stock of the Target or Amplify or any wholly owned material U.S. restricted subsidiary of the Target or Amplify not delivered
on the Closing Date, on or prior to the date that is 5 Business Days after the Closing Date, and with respect to any other such Collateral
not actually received from the Target or Amplify on or prior to the Closing Date after use of commercially reasonably efforts to procure
delivery thereof, on or prior to the date that is 90 days after the Closing Date or, in each case, such longer period of time as may
be mutually agreed by the Collateral Agent and the Borrower, each acting reasonably.
6.3 Legal
Opinions. The Administrative Agent shall have received the executed legal opinions of (a) Simpson Thacher & Bartlett
LLP, New York counsel to Holdings, the Borrower and its Subsidiaries and (b) K&L Gates LLP, North Carolina counsel to Holdings,
the Borrower and its Subsidiaries, in each case in form and substance reasonably satisfactory to the Administrative Agent.
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6.4
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Structure
and Terms of the Transaction; No Material Adverse Effect.
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(a) The
Mergers shall have been consummated, or shall be consummated substantially simultaneously with, the initial Credit Event hereunder to
occur on the Closing Date, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to
any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents,
waivers or requests (including the effects of any such requests) by Holdings (and/or its affiliates) that are materially adverse to the
interests of the Lenders or the Joint Bookrunners, unless consented to in writing by the Joint Bookrunners (such consent not to be unreasonably
withheld or delayed).
(b) The
Equity Contribution shall have been made, or shall be made substantially simultaneously with, the initial Credit Event hereunder to occur
on the Closing Date, in at least the amount set forth in the third recital to this Agreement.
(c) The
Existing Debt Refinancing shall have been consummated, or shall be consummated substantially simultaneously with, the initial Credit
Event hereunder to occur on the Closing Date.
(d) Since
the date of the Acquisition Agreement, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement).
6.5 Closing
Certificates. The Administrative Agent shall have received a certificate of each Person that is a Credit Party as of the Closing
Date, dated the Closing Date, substantially in the form of Exhibit E, with appropriate insertions, executed by two Authorized Officers
of such Credit Party, and attaching the documents referred to in Sections 6.6 and 6.7.
6.6 Corporate
Proceedings. The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory
to the Administrative Agent, of the Board of Directors or other governing body, as applicable, of each Person that is a Credit Party
as of the Closing Date (or a duly authorized committee thereof) authorizing (a) the execution, delivery and performance of the Credit
Documents (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the extensions of credit
contemplated hereunder.
6.7 Corporate
Documents. The Administrative Agent shall have received true and complete copies of the Organizational Documents of each Person that
is a Credit Party as of the Closing Date.
6.8 Solvency
Certificate. The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower substantially
in the form of Exhibit J.
6.9 Financial
Statements. The Administrative Agent and the Joint Bookrunners shall have received the Historical Financial Statements and the Pro
Forma Financial Statements.
6.10 PATRIOT
ACT. The Administrative Agent and the Joint Bookrunners shall have received, at least three Business Days prior to the Closing Date,
all documentation and other information about Holdings, the Borrower and the other Guarantors that shall have been reasonably requested
by the Administrative Agent or the Joint Bookrunners in writing at least 10 Business Days prior to the Closing Date and that the Administrative
Agent and the Joint Bookrunners reasonably determine is required by United States regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ACT.
6.11 Fees
and Expenses. All fees required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee Letter and reasonable
out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee Letter, and with respect
to expenses to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the
Borrower), shall, upon the initial borrowings under the Credit Facilities, have been, or will be substantially simultaneously, paid (which
amounts may be offset against the proceeds of the Credit Facility).
6.12 Specified
Representations. The Specified Representations and the Specified Acquisition Agreement Representations shall be true and correct
in all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier
date); provided that, with respect to the Specified Representations made on the Closing Date, to the extent that such representations
are qualified by “Material Adverse Effect”, the definition of “Material Adverse Effect” applicable to such qualifications
shall be the definition of “Material Adverse Effect” set forth in the Acquisition Agreement and not the definition of “Material
Adverse Effect” set forth in this Agreement.
Without limiting the generality
of the provisions of the last paragraph of Section 12.3, for purposes of determining compliance with the conditions specified in
this Section 6, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
SECTION 7. Conditions
Precedent to All Credit Events.
7.1 No
Default; Representations and Warranties. The agreement of each Lender to make any Loan requested to be made by it on any date (excluding
Mandatory Borrowings and Revolving Credit Loans made pursuant to Section 2.1(d)(ii) or pursuant to Section 3.4(a) which
shall each be made without regard to the satisfaction of the condition set forth in this Section 7 and excluding borrowings made
pursuant to Section 2.14, Section 2.15 and/or Section 2.17, which may be subject to different conditions precedent and
representations, but only if so agreed by the Borrower and the applicable Lenders) and the obligation of the Letter of Credit Issuer
to issue, amend, extend or renew Letters of Credit on any date is subject to the satisfaction of the condition precedent that at the
time of each such Credit Event and also after giving effect thereto (a) except in the case of the initial Credit Event to occur
on the Closing Date, no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such
Credit Event and (b) except in the case of the initial Credit Event to occur on the Closing Date, all representations and warranties
made by any Credit Party contained herein or in the other Credit Documents shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on and as of the date of such Credit Event (except where such
representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been
true and correct in all material respects as of such earlier date, and except where such representations and warranties are qualified
by materiality, “Material Adverse Effect” or similar language, in which case such representations and warranties shall be
true and correct in all respects). The acceptance of the benefits of each such Credit Event shall constitute a representation and warranty
by each Credit Party to each of the Lenders that the conditions contained in this Section 7.1 have been met as of such date.
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7.2
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Notice
of Borrowing; Letter of Credit Request.
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(a) Prior
to the making of each Term Loan, each Revolving Credit Loan (other than any Revolving Credit Loan made pursuant to Section 2.1(d)(ii) or
pursuant to Section 3.4(a)), each Additional/Replacement Revolving Credit Loan and each Extended Revolving Credit Loan and each
Swingline Loan, the Administrative Agent shall have received a written Notice of Borrowing meeting the requirements of Section 2.3.
(b) Prior
to the issuance of each Letter of Credit, the Administrative Agent and the Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 3.2(a).
SECTION 8.
Representations, Warranties and Agreements. In order to induce the Lenders to enter into this Agreement, make the Loans
and issue, renew, amend, extend or participate in Letters of Credit as provided for herein, each of Holdings and the Borrower makes the
following representations and warranties to, and agreements with, the Lenders and the Letter of Credit Issuer, all of which shall survive
the execution and delivery of this Agreement, the making of the Loans and the issuance, renewal, amendment or extension of the Letters
of Credit:
8.1 Corporate
Status. Holdings, the Borrower and each Restricted Subsidiary (a) is a duly organized and validly existing corporation or other
entity in good standing under the laws of the jurisdiction of its organization or formation and has the corporate or other organizational
power and authority to own its property and assets and to transact the business in which it is engaged and (b) has duly qualified
and is authorized to do business and is in good standing (to the extent such concept is applicable in the corresponding jurisdiction)
in all jurisdictions where it is required to be so qualified, except, in the case of clauses (a) and (b), where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
8.2 Corporate
Power and Authority; Enforceability. Each Credit Party has the corporate or other organizational power and authority to execute,
deliver and carry out the terms and provisions of the Credit Documents to which it is a party and has taken all necessary corporate or
other organizational action to authorize the execution, delivery and performance of the Credit Documents to which it is a party. Each
Credit Party has duly executed and delivered each Credit Document to which it is a party and each such Credit Document constitutes the
legal, valid and binding obligation of such Credit Party enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforceability of creditors’
rights generally and general principles of equity (whether considered in a proceeding in equity or law). Holdings, the Borrower and each
of the Restricted Subsidiaries (a) is in compliance with all Applicable Laws and (b) has all requisite governmental licenses,
authorizations, consents and approvals to operate its business as currently conducted except, in each case to the extent that failure
to be in compliance therewith or to have all such licenses, authorizations, consents and approvals could not reasonably be expected to
have a Material Adverse Effect.
8.3 No
Violation. The execution, delivery and performance by any Credit Party of the Credit Documents to which it is a party and compliance
with the terms and provisions hereof and thereof will not (a) contravene any material applicable provision of any material Applicable
Law of any Governmental Authority, (b) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute
a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under,
or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any
of Holdings, the Borrower or any of the Restricted Subsidiaries (other than Liens created under the Credit Documents) pursuant to, the
terms of any indenture, loan agreement, lease agreement, mortgage or deed of trust or any other Contractual Obligation to which Holdings,
the Borrower or any of their Restricted Subsidiaries is a party or by which they or any of their property or assets is bound, except
to the extent that any such conflict, breach, contravention, default, creation or imposition could not reasonably be expected to result
in a Material Adverse Effect or (c) violate any provision of the Organizational Documents of Holdings, the Borrower or any of their
Restricted Subsidiaries.
8.4 Litigation.
There are no actions, suits, investigations or proceedings (including Environmental Claims) pending or, to the knowledge of Holdings
or the Borrower, threatened, in either case with respect to Holdings, the Borrower or any of the Restricted Subsidiaries that (a) involve
any of the Credit Documents or (b) could reasonably be expected to result in a Material Adverse Effect.
8.5 Margin
Regulations. Neither the making of any Loan hereunder nor the use of the proceeds thereof will violate the provisions of Regulation
T, Regulation U or Regulation X of the Board.
8.6 Governmental
and Third Party Approvals. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any Governmental Authority or any other Person is required to authorize or is required in connection with (a) the
execution, delivery and performance of any Credit Document or (b) the legality, validity, binding effect or enforceability of any
Credit Document, except, in the case of either clause (a) or (b), (i) such orders, consents, approvals, licenses, authorizations,
validations, filings, recordings, registrations or exemptions as have been obtained or made and are in full force and effect, (ii) filings
and recordings in respect of Liens created pursuant to the Security Documents and (iii) such orders, consents, approvals, licenses,
authorizations, validations, filings, recordings, registrations or exemptions to the extent that failure to so receive could not reasonably
be expected to result in a Material Adverse Effect.
8.7 Investment
Company Act. None of the Credit Parties is an “investment company” within the meaning of the Investment Company Act of
1940, as amended.
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8.8
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True
and Complete Disclosure.
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(a) None
of the written factual information or written factual data (taken as a whole) heretofore or contemporaneously furnished by Holdings,
the Borrower, any of their respective Subsidiaries or any of their respective authorized representatives in writing to any Agent or any
Lender on or before the Closing Date (including all such information contained in the Confidential Information Memorandum (and all information
incorporated by reference therein) and in the Credit Documents) for purposes of, or in connection with, this Agreement or any transaction
contemplated herein contained any untrue statement of material fact or omitted to state any material fact necessary to make such information
and data (taken as a whole) not materially misleading at such time (after giving effect to all supplements so furnished from time to
time) in light of the circumstances under which such information or data was furnished; it being understood and agreed that for purposes
of this Section 8.8(a), such factual information and data shall not include projections (including financial estimates, forecasts
and other forward-looking information), pro forma financial information or information of a general economic or industry specific nature.
(b) The
projections contained in the information and data referred to in Section 8.8(a) were prepared in good faith based upon assumptions
believed by Holdings and the Borrower to be reasonable at the time made; it being recognized by the Agents and the Lenders that such
projections are as to future events and are not to be viewed as facts, the projections are subject to significant uncertainties and contingencies,
many of which are beyond the control of Holdings, the Borrower and the Restricted Subsidiaries, that no assurance can be given that any
particular projections will be realized and that actual results during the period or periods covered by any such projections may differ
from the projected results and such differences may be material.
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8.9
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Financial
Statements.
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(a) The
Historical Financial Statements present fairly in all material respects the financial position and results of operations of Wirepath
Home Systems Holdco LLC (or the predecessor thereto) and its Subsidiaries at the respective dates of such information and for the respective
periods covered thereby and have been prepared in accordance with GAAP consistently applied, except to the extent provided in the notes
thereto, and subject, in the case of the unaudited financial information, to changes resulting from audit, normal year-end audit adjustments
and to the absence of footnotes and the inclusion of any explanatory note.
(b) The unaudited pro forma consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of March 31, 2017 (including
any notes thereto) (the “Pro Forma Balance Sheet”) and the unaudited pro forma consolidated statement of operations of the
Borrower and its consolidated Subsidiaries for the 12 month period ending on March 31, 2017 (together with the Pro Forma Balance Sheet,
the “Pro Forma Financial Statements”), copies of which have heretofore been furnished to the Administrative Agent, has been
prepared giving pro forma effect (as if such events had occurred on such date or the beginning of such period, as the case may be) to
the consummation of all of the Transactions. The Pro Forma Financial Statements have been prepared in good faith based upon assumptions
believed by the Borrower to be reasonable as of the date of delivery thereof to the Administrative Agent, and, subject to the qualifications
and limitations contained in the notes attached thereto, present fairly in all material respects on a pro forma basis, the estimated
financial position of the Borrower and its consolidated Subsidiaries as at March 31, 2017 and their estimated results of operations for
the periods covered thereby, assuming that the events specified in the preceding sentence had actually occurred at such date or at the
beginning of the periods covered thereby; provided that it is understood that the Pro Forma Financial Statements have not been prepared
in compliance with Regulation S-X of the Securities Act, and/or do not include adjustments for purchase accounting (including adjustments
of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly
SFAS 141R)), tax adjustments, deferred taxes or other similar pro forma adjustments.
Each Lender and each Agent
hereby acknowledges and agrees that the Borrower and its Subsidiaries may be required to restate the Historical Financial Statements
as the result of the implementation of changes in GAAP or the interpretation thereof, and that such restatements will not result in a
Default under the Credit Documents under Section 11.2 (including any effect on any conditions required to be satisfied on the Closing
Date) to the extent that the restatements do not reveal any material omission, misstatement or other material inaccuracy in the reported
information from actual results for any relevant prior period.
8.10 Tax
Returns and Payments, Etc. (a) Holdings, the Borrower and each of the Restricted Subsidiaries have filed all U.S. federal income
tax returns and all other material tax returns, domestic and foreign, required to be filed by them and have paid all material taxes and
assessments payable by them that have become due, other than those not yet delinquent or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves have been established on the applicable financial statements in accordance with
GAAP or the equivalent accounting principles in the relevant local jurisdiction and (b) each of Holdings, the Borrower and the Restricted Subsidiaries
have paid, or have provided adequate reserves (in the good-faith judgment of the management of the Borrower) in accordance with GAAP or
the equivalent accounting principles in the relevant local jurisdiction for the payment of, all material U.S. federal, state, and foreign
income taxes applicable for all prior fiscal years and for the current fiscal year to the Closing Date, except in the case of either of
clauses (a) or (b), to the extent that the failure to be in compliance therewith could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
8.11 Compliance
with ERISA. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (a) each
Pension Plan is in compliance with ERISA, the Code and any Applicable Law; (b) no Reportable Event has occurred (or is reasonably
likely to occur); (c) no Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA (or is reasonably
likely to be insolvent), and no written notice of any such insolvency has been given to any of Holdings, the Borrower, any of the Restricted
Subsidiaries or any ERISA Affiliate; (d) none of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate
has failed to satisfy the minimum funding standard under Section 412 of the Code and Section 302 of ERISA with respect to any
Pension Plan, or has otherwise failed to make a required contribution to a Multiemployer Plan, whether or not waived (or is reasonably
likely to fail to satisfy such minimum funding standard or make such required contribution); (e) no Pension Plan is, or is expected
to be, in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA and no Multiemployer
Plan is, or is expected to be, in “endangered or critical status” within the meaning of Section 432 of the Code or Section 305
of ERISA; (f) none of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate has incurred (or is reasonably
likely to incur) any liability to or on account of a Pension Plan or Multiemployer Plan, as applicable, pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code or has been notified in writing
that it will incur any liability under any of the foregoing Sections with respect to any Pension Plan or Multiemployer Plan; (g) no
proceedings by the PBGC have been instituted (or are reasonably likely to be instituted) to terminate or to reorganize any Pension Plan
or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or Multiemployer Plan, and no written notice of any such
proceedings has been given to any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate; (h) the
conditions for imposition of a Lien that could be imposed under the Code or ERISA on the assets of any of Holdings, the Borrower, any
of the Restricted Subsidiaries or any ERISA Affiliate with respect to a Pension Plan do not exist (or are not reasonably likely to exist)
nor has Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate been notified in writing that such a lien will
be imposed on the assets of any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate on account of any
Pension Plan; and (i) each Foreign Plan is in compliance with Applicable Laws (including funding requirements under such Applicable
Laws), and no proceedings have been instituted to terminate any Foreign Plan which would reasonably be expected to give rise to liability
for Holdings, the Borrower or any Restricted Subsidiary. No Pension Plan has an Unfunded Current Liability that would, individually or
when taken together with any other liabilities incurred or reasonably likely to be incurred by Holdings, the Borrower, any of the Restricted
Subsidiaries or any ERISA Affiliate as referenced in this Section 8.11, be reasonably likely to have a Material Adverse Effect.
With respect to Multiemployer Plans, the representations and warranties in this Section 8.11, other than any made with respect to
(i) liability under Section 4201 or 4204 of ERISA, (ii) any contribution required to be made, or (iii) liability
for termination of any such Multiemployer Plan under ERISA, are made to the best knowledge of the Borrower.
8.12 Subsidiaries.
On the Closing Date, after giving effect to the Transactions, Holdings does not have any Subsidiaries other than the Subsidiaries listed
on Schedule 8.12. Schedule 8.12 sets forth, as of the Closing Date, after giving effect to the Transactions, the name and the jurisdiction
of organization of each Subsidiary and, as to each Subsidiary, the percentage of each class of Capital Stock owned by any Credit Party
and the designation of such Subsidiary as a Guarantor, a Restricted Subsidiary, an Unrestricted Subsidiary, a Specified Subsidiary or
an Immaterial Subsidiary. The Borrower does not own or hold, directly or indirectly, any Capital Stock of any Person other than such
Subsidiaries and Investments permitted by Section 10.5.
8.13 Intellectual
Property. Each of Holdings, the Borrower and each of the Restricted Subsidiaries owns, has good and marketable title to, or has a
valid license or otherwise has the right to use, any and all Intellectual Property, that is used in, held for use in or that is otherwise
necessary for the operation of their respective businesses as currently conducted, free and clear of all Liens (other than Liens permitted
by Section 10.2), except where the failure to own, or have any such title, license or rights could not reasonably be expected to
have a Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse Effect, (i) to the Borrower’s
knowledge, the operation of the businesses conducted by each of the Borrower and the Restricted Subsidiaries, and the Intellectual Property
now employed by any of the Credit Parties does not infringe upon, misappropriate, or otherwise violate any Intellectual Property rights
owned by any other Person, and (ii) no material written claim has been received by Holdings, the Borrower, or any of the Restricted
Subsidiaries, and no litigation regarding the foregoing is pending or, to the Borrower’s knowledge, threatened in writing, in either
case against the Borrower or any of the Restricted Subsidiaries.
(a) Except
as could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, (i) Holdings, the
Borrower and each of the Restricted Subsidiaries are and have been in compliance with all Environmental Laws (including having obtained
and complied with all permits required under Environmental Laws for their current operations); (ii) to the knowledge of Holdings
or the Borrower, there are no facts, circumstances or conditions arising out of or relating to the operations of Holdings, the Borrower
or any of the Restricted Subsidiaries or any currently or formerly owned, operated or leased Real Property that would reasonably be expected
to result in Holdings, the Borrower or any of the Restricted Subsidiaries incurring liability under any Environmental Law; and (iii) none
of Holdings, the Borrower or any of the Restricted Subsidiaries has become subject to any pending or, to the knowledge of Holdings or
the Borrower, threatened Environmental Claim or, to the knowledge of the Borrower, any other liability under any Environmental Law.
(b) None
of Holdings, the Borrower or any of the Restricted Subsidiaries has treated, stored, transported or Released Hazardous Materials at or
from any currently or formerly owned, operated or leased Real Property in a manner that could reasonably be expected to have a Material
Adverse Effect.
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8.15
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Properties,
Assets and Rights.
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(a) As
of the Closing Date and as of the date of each Credit Event thereafter, each of Holdings, the Borrower and each of the Restricted Subsidiaries
has good and marketable title to, valid leasehold interest in, or easements, licenses or other limited property interests in, all properties
(other than Intellectual Property) that are necessary for the operation of their respective businesses as currently conducted, except
where the failure to have such good title or interest in such property could not reasonably be expected to have a Material Adverse Effect.
None of such properties and assets is subject to any Lien, except for Liens permitted under Section 10.2.
(b) Set
forth on Schedule 8.15 hereto is a complete and accurate list of all Real Property owned in fee by the Credit Parties on the Closing
Date, showing as of the Closing Date the street address, county or other relevant jurisdiction, state and record owner thereof.
(c) All
permits required to have been issued or appropriate to enable all Real Property of the Credit Parties to be lawfully occupied and used
for all of the purposes for which they are currently occupied and used have been lawfully issued and are in full force and effect, other
than those permits the failure of which to be issued or to so enable lawful occupation and use could not reasonably be expected to have
a Material Adverse Effect.
8.16 Solvency.
On the Closing Date after giving pro forma effect to the Transactions, the Credit Parties and their Subsidiaries on a consolidated basis
are Solvent.
8.17 Material
Adverse Change. Since the Closing Date there have been no events or developments that have had or could reasonably be expected to
have a Material Adverse Effect.
8.18 Use
of Proceeds. The proceeds of (a) the Initial Term Loans (other than the Tranche B Term Loans made on the First Incremental Agreement
Effective Date pursuant to the First Incremental Agreement and other than the Tranche C Term Loans made on the Second Incremental Agreement Effective Date pursuant
to the Second Incremental Agreement) and the Initial Revolving Borrowing Amount shall be used (i) on the Closing Date,
together with cash on hand at the Target and its Subsidiaries and the proceeds from the Equity Contribution to pay the Merger Consideration,
the Existing Debt Refinancing and/or the Transaction Expenses and (ii) to the extent any proceeds remain after the application described
in clause (i), will be used on and after the Closing Date for other general corporate purposes of the Borrower and its Subsidiaries and
(b) Revolving Credit Loans available under any Revolving Credit Facility, together with the proceeds of the Swingline Loans and the Letters
of Credit, will be used for working capital requirements and other general corporate purposes of the Borrower and its Subsidiaries, including
the financing of acquisitions, other Investments and Restricted Payments and other distributions on account of the Capital Stock of the
Borrower (or any Parent Entity thereof), in each case permitted hereunder, and any other use not prohibited hereby. The proceeds of the
Tranche B Term Loans made on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement shall be used
on the First Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans outstanding hereunder as of the First
Incremental Agreement Effective Date (immediately prior to giving effect to the First Incremental Agreement), all accrued and unpaid
interest thereon and all other Obligations in respect thereof and (b) to pay the fees, expenses and other amounts incurred in connection
with the transactions contemplated by the First Incremental Agreement. The
proceeds of the Tranche C Term Loans made on the Second Incremental Agreement Effective Date pursuant to the Second Incremental Agreement
shall be used on the Second Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans outstanding hereunder
as of the Second Incremental Agreement Effective Date (immediately prior to giving effect to the Second Incremental Agreement), all accrued
and unpaid interest thereon and all other Obligations in respect thereof, (b) to pay the fees, expenses and other amounts incurred
in connection with the transactions contemplated by the Second Incremental Agreement and (c) other general corporate purposes of
the Borrower and its Subsidiaries, which may include the financing of acquisitions and other Investments, and any other use not prohibited
hereby.
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8.19
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Anti-Corruption
Laws.
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(a) The
Borrower and each other Credit Party and their respective Restricted Subsidiaries are in compliance with the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), except to the extent that the
failure to be in compliance would not reasonably be expected to result in a Material Adverse Effect.
(b) None
of the Borrower or any other Credit Party will use the proceeds of the Loans or the Letters of Credit or otherwise make available such
proceeds to any Person for the purposes of any payments to any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or
obtain any improper advantage, in violation of the FCPA.
(a) None
of the Borrower, any other Credit Party or any of their respective Restricted Subsidiaries is currently the target of any U.S. sanctions
administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) of the U.S.
Treasury Department or the U.S. Department of State.
(b) None
of the Borrower or any other Credit Party will use the proceeds of the Loans or the Letters of Credit or otherwise make available such
proceeds to any Person for use in any manner that will result in a violation by any Lender of any U.S. sanctions administered by OFAC
or the U.S. Department of State.
8.21 PATRIOT
Act. Except to the extent as could not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any other
Credit Party is in violation of any Applicable Laws relating to money laundering, including the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “PATRIOT ACT”).
8.22 Labor
Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (a) there
are no strikes or other labor disputes against any of the Borrower or the Restricted Subsidiaries pending or, to the knowledge of the
Borrower, threatened in writing and (b) none of the Borrower or the Restricted Subsidiaries have been in violation of the Fair Labor
Standards Act or any other Applicable Laws dealing with wage and hour matters.
8.23 Subordination
of Junior Financing. The Obligations are “Designated Senior Debt” (if applicable), “Senior
Debt”, “Senior Indebtedness”, “Guarantor Senior Debt” or “Senior Secured Financing” (or any
comparable term) under, and as defined in, any indenture or document governing any Junior Debt.
8.24 No
Default. As of the date of any Credit Event after the Closing Date, no Default has occurred and is continuing.
SECTION 9. Affirmative Covenants. The Borrower (and, in the case of Section 9.14, Holdings) hereby covenants and agrees that,
on the Closing Date and thereafter, until the Total Commitment and all Letters of Credit have terminated (unless such Letters of Credit
have been Cash Collateralized on the terms and conditions set forth in Section 3.8) and the Loans and Unpaid Drawings, together with
interest, fees and all other Obligations Incurred hereunder (other than Hedging Obligations under Secured Hedging Agreements, Cash Management
Obligations under Secured Cash Management Agreements and contingent indemnification obligations and other contingent obligations not then
due and payable), are paid in full:
9.1 Information
Covenants. The Borrower will furnish to the Administrative Agent for prompt further distribution to each Lender:
(a) Annual
Financial Statements. As soon as available and in any event on or before the date that is 120 days after the end of each fiscal
year (or, in the case of the fiscal year ended December 31, 2017, the date that is 150 days after the end of such fiscal year),
the consolidated balance sheet of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and its Restricted
Subsidiaries, in each case as at the end of such fiscal year, and the related consolidated statement of income and cash flows for
such fiscal year, setting forth for each fiscal year (other than the fiscal year ended December 31, 2017 (with respect to
which, for the avoidance of doubt, no comparative consolidated figures or reconciliations will be required)) comparative
consolidated figures for the preceding fiscal year (or, in lieu of such audited financial statements of the Borrower and the
Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted
Subsidiaries, on the one hand, and the Borrower and its consolidated Subsidiaries, on the other hand), all in reasonable detail and
prepared in all material respects in accordance with GAAP (except as otherwise disclosed in such financial statements) and, except
with respect to any such reconciliation, reported on by independent registered public accountants of recognized national standing
with an unmodified report by such independent registered public accountants without an emphasis of matter paragraph related to going
concern as defined by Statement on Accounting Standards AU-C Section 570 “The Auditor’s Consideration of an
Entity’s Ability to Continue as a Going Concern” (or any similar statement under any amended or successor rule as
may be adopted by the Auditing Standards Board from time to time) (other than solely with respect to, or expressly resulting solely
from, an upcoming maturity date under the documentation governing any Indebtedness), and, for the avoidance of doubt, without
modification as to the scope of audit, together in any event with a certificate of such accounting firm stating that in the course
of its regular audit of the business of the Borrower and its consolidated Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm has obtained no knowledge of any Event of Default relating to the
Financial Performance Covenant that has occurred and is continuing or, if in the opinion of such accounting firm such an Event of
Default has occurred and is continuing, a statement as to the nature thereof. Notwithstanding the foregoing, the obligations in this
Section 9.1(a) may be satisfied with respect to financial information of the Borrower and its consolidated Subsidiaries by
furnishing (A) the applicable financial statements of Holdings (or any Parent Entity of Holdings), (B) the
Borrower’s or Holdings’ (or any Parent Entity thereof), as applicable, Form 10-K filed with the SEC or
(C) following an election by the Borrower pursuant to the definition of “GAAP”, the applicable financial statements
shall be determined in accordance with IFRS; provided that, with respect to each of clauses (A) and (B), (i) to the
extent such information relates to Holdings (or such Parent Entity), such information is accompanied by consolidating information
that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one
hand, and the information relating to the Borrower and its consolidated Subsidiaries on a standalone basis, on the other hand and
(ii) to the extent such information is in lieu of information required to be provided under the first sentence of this
Section 9.1(a), such materials shall be reported on by an independent registered public accounting firm of recognized national
standing, with an unmodified report by such independent registered public accountants without an emphasis of matter paragraph
related to going concern as defined by Statement on Accounting Standards AU-C Section 570 “The Auditor’s
Consideration of an Entity’s Ability to Continue as a Going Concern” (or any similar statement under any amended or
successor rule as may be adopted by the Auditing Standards Board from time to time) (other than solely with respect to, or
expressly resulting solely from, an upcoming maturity date under the documentation governing any Indebtedness) (it being understood
that there shall be no obligation to audit any such consolidating information), and, for the avoidance of doubt, without
modification as to the scope of audit.
(b) Quarterly
Financial Statements. As soon as available and in any event on or before the date that is 45 days after the end of each of the first
three quarterly accounting periods in each fiscal year of the Borrower (or, in the case of each of the quarters ending September 30,
2017, March 31, 2018 and June 30, 2018, the date that is 60 days after the end of such quarter), the consolidated balance sheet
of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as at
the end of such quarterly period and the related consolidated statement of income for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly period, and the related consolidated statement of cash flows for
the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting forth (other than for the quarterly
periods ending September 30, 2017, March 31, 2018 and June 30, 2018 (with respect to which, for the avoidance of doubt,
no comparative consolidated figures or reconciliations will be required)) comparative consolidated figures for the related periods in
the prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the prior fiscal year (or in lieu of such
financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information
for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and its consolidated Subsidiaries on the other hand),
all in reasonable detail and all of which shall be certified by an Authorized Officer of the Borrower as fairly presenting in all material
respects the financial condition, results of operations and cash flows of the Borrower and its consolidated Subsidiaries (and, if applicable,
the Borrower and the Restricted Subsidiaries) in accordance with GAAP, subject to changes resulting from audit and normal year-end audit
adjustments and to the absence of footnotes and the inclusion of any explanatory note. Notwithstanding the foregoing, the obligations
in this Section 9.1(b) may be satisfied with respect to financial information of the Borrower and its consolidated Subsidiaries
by furnishing (A) the applicable financial statements of Holdings (or any Parent Entity thereof) or (B) the Borrower’s
or Holdings’ (or any Parent Entity thereof), as applicable, Form 10-Q filed with the SEC; provided that, with respect
to each of clauses (A) and (B), to the extent such information relates to Holdings (or any such Parent Entity), such information
is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings
(or such Parent Entity), on the one hand, and the information relating to the Borrower and its consolidated Subsidiaries on a standalone
basis (and, if different, the Borrower and the Restricted Subsidiaries), on the other hand.
(c) Budget.
No later than five Business Days following the delivery by the Borrower of the financial statements required under
Section 9.1(a), beginning at the time of the delivery of such financial statements for the fiscal year ending December 31,
2017, a detailed quarterly budget of the Borrower and its Restricted Subsidiaries in reasonable detail for the current fiscal year
as customarily prepared by management of the Borrower for its internal use (but including, in any event, only a projected
consolidated statement of income of the Borrower and its Restricted Subsidiaries for the current fiscal year and not a projected
consolidated balance sheet or statement of projected cash flow) and setting forth the principal assumptions upon which such budget
is based (provided, that no such budgets shall be required to be delivered for the fiscal year which began January 1,
2017). It is understood and agreed that any financial or business projections furnished by any Credit Party (i)(A) are subject
to significant uncertainties and contingencies, which may be beyond the control of the Credit Parties, (B) no assurance is
given by the Credit Parties that the results or forecast in any such projections will be realized and (C) the actual results may
differ from the forecast results set forth in such projections and such differences may be material and (ii) are not a
guarantee of performance.
(d) Officer’s
Certificates. No later than five Business Days following the delivery of the financial statements provided for in Sections 9.1(a) and
9.1(b), a certificate of an Authorized Officer of the Borrower to the effect that no Default or Event of Default exists or, if any Default
or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i) during any fiscal
quarter during which the Financial Performance Covenant is applicable, the calculations required to establish whether the Borrower was
in compliance with the provisions of the Financial Performance Covenant as at the end of such fiscal year or period, as the case may be,
beginning with the fiscal period ending December 31, 2017, if required, (ii) a specification of any change in the identity of
the Guarantors, the Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and
the Foreign Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Guarantors, Restricted Subsidiaries,
the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the Foreign Subsidiaries, respectively, provided
to the Lenders on the Closing Date or the most recent fiscal year or period, as the case may be, and (iii) the then applicable Applicable
Margins and Commitment Fee Rate. At the time of the delivery of the financial statements provided for in Section 9.1(a) beginning
with the fiscal year ended December 31, 2018, a certificate of an Authorized Officer of the Borrower setting forth in reasonable
detail the calculation of Excess Cash Flow, the Available Amount and the Available Equity Amount as at the end of the fiscal year to which
such financial statements relate.
(e) Notice
of Certain Events. Promptly after an Authorized Officer of Holdings, the Borrower or any of its Restricted Subsidiaries obtains knowledge
thereof, notice of the occurrence of (i) any event that constitutes a Default or an Event of Default, which notice shall specify
the nature thereof, the period of existence thereof and what action Holdings or the Borrower proposes to take with respect thereto, and
(ii) any litigation or governmental proceeding pending against Holdings, the Borrower or any of its Restricted Subsidiaries that
could reasonably be expected to result in a Material Adverse Effect.
(f) Other
Information. (i) Promptly upon filing thereof, (x) copies of any annual, quarterly and other regular, material periodic
and special reports (including on Form 10-K, 10-Q or 8-K) and registration statements which Holdings (or any Parent Entity thereof),
the Borrower or any Restricted Subsidiary files with the SEC or any analogous Governmental Authority in any relevant jurisdiction (other
than amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered
to the Administrative Agent for further delivery to the Lenders), exhibits to any registration statement and, if applicable, any registration
statements on Form S-8 and other than any filing filed confidentiality with the SEC or any analogous Governmental Authority in any
relevant jurisdiction) and (y) copies of all financial statements, proxy statements, and material reports that Holdings, the Borrower
or any of the Restricted Subsidiaries shall send to the holders of any publicly issued debt of Holdings, the Borrower and/or any of the
Restricted Subsidiaries in their capacity as such holders (in each case to the extent not theretofore delivered to the Administrative
Agent for further delivery to the Lenders pursuant to this Agreement) and (ii) with reasonable promptness, but subject to the limitations
set forth in the last sentence of Section 9.2 and Section 13.16, such other information (financial or otherwise) as the Administrative
Agent on its own behalf or on behalf of any Lender may reasonably request in writing from time to time.
Documents required to be delivered pursuant
to Sections 9.1(a), 9.1(b) and 9.1(f)(i) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s
website on the Internet at the website address listed on Schedule 13.2 or (ii) on which such documents are transmitted by
electronic mail to the Administrative Agent; provided that: (A) upon written request by the Administrative Agent, the
Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a
written request to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify (which
may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide paper copies of the certificates required by
Section 9.1(d) to the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents
or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such
documents.
9.2 Books,
Records and Inspections. The Borrower will, and will cause each of the Restricted Subsidiaries to, maintain proper books of record
and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied
shall be made of all material financial transactions and matters involving the assets and business of Holdings, the Borrower or such Restricted
Subsidiary, as the case may be. The Borrower will, and will cause each of the Restricted Subsidiaries to, permit representatives and independent
contractors of the Administrative Agent and the Required Lenders to visit and inspect any of its properties (to the extent it is within
such Person’s control to permit such inspection), to examine its corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants,
all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Borrower (and subject, in the case of any such meetings or advice from such independent
accountants, to such accountants’ customary policies and procedures); provided that, excluding any such visits and inspections
during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative
Agent and the Required Lenders under this Section 9.2 and the Administrative Agent shall not exercise such rights more often than
once during any calendar year absent the existence of an Event of Default at the Borrower’s expense; and provided, further,
that when an Event of Default exists, the Administrative Agent or the Required Lenders (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon
reasonable advance notice. The Administrative Agent and the Required Lenders shall give the Borrower the opportunity to participate in
any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in Section 9.1
or this Section 9.2, none of Holdings, the Borrower or any Restricted Subsidiary will be required to disclose, permit the inspection,
examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non-financial
trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to any Agent or any Lender (or their
respective representatives or contractors) is prohibited by Applicable Law or any binding agreement or (iii) that is subject to attorney-client
or similar privilege or constitutes attorney work product.
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9.3
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Maintenance of Insurance.
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(a) The
Borrower will, and will cause each of the Restricted Subsidiaries to, at all times maintain in full force and effect, with insurance companies
that the Borrower believes (in the good-faith judgment of the management of the Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance which the
Borrower believes (in the good-faith judgment of management of the Borrower) is reasonable and prudent in light of the size and nature
of its business) and against at least such risks (and with such risk retentions) as are usually insured against in the same general area
by companies engaged in businesses similar to those engaged by the Borrower and the Restricted Subsidiaries; and will furnish to the Administrative
Agent for further delivery to the Lenders, upon written request from the Administrative Agent, information presented in reasonable detail
as to the insurance so carried. The Collateral Agent, for the benefit of the Secured Parties, shall be the additional insured on any such
liability insurance and the Collateral Agent, for the benefit of the Secured Parties, shall be the additional loss payee or additional
mortgagee under any such casualty or property insurance, except in each case as the Collateral Agent and the Borrower may otherwise agree.
(b) If
any buildings or improvements comprising of any Mortgaged Property are at any time located in an area identified by the Federal
Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been
made available under the Flood Insurance Laws, then the Borrower shall, or shall cause the applicable Credit Parties to, solely to
the extent required by Applicable Law, (i) maintain, or cause to be maintained, with a financially sound and reputable insurer
(determined at the time such insurance is obtained or renewed), flood insurance in an amount and otherwise sufficient to comply with
all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Collateral
Agent evidence of such compliance in form reasonably acceptable to the Collateral Agent.
9.4 Payment
of Taxes. The Borrower will pay and discharge, and will cause each of the Restricted Subsidiaries to pay and discharge, all material
taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging
to it, prior to the date on which such payments become overdue, and all lawful material claims in respect of taxes imposed, assessed or
levied that, if unpaid, could reasonably be expected to become a material Lien upon any properties of the Borrower or any of the Restricted
Subsidiaries, except to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect;
provided that none of the Borrower or any of the Restricted Subsidiaries shall be required to pay any such tax, assessment, charge,
levy or claim that is being diligently contested in good faith and by proper proceedings if it has maintained adequate reserves (in the
good-faith judgment of the management of the Borrower) with respect thereto in accordance with GAAP or the equivalent accounting principles
in the relevant local jurisdiction.
9.5 Consolidated
Corporate Franchises. The Borrower will do, and will cause each of the Restricted Subsidiaries to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence, corporate rights, privileges and authority, except to the extent
that the failure to do so could not reasonably be expected to have a Material Adverse Effect; provided, however, that the
Borrower and the Restricted Subsidiaries may consummate any transaction permitted under Section 10.3, 10.4 or 10.5.
9.6 Compliance
with Statutes. The Borrower will, and will cause each Restricted Subsidiary to (a) comply with all Applicable Laws, rules, regulations
and orders applicable to it or its property, including, without limitation, (i) the FCPA, (ii) applicable Sanctions and (iii) the
PATRIOT Act, and (b) maintain in effect all governmental approvals or authorizations required to conduct its business, except in
the case of each of clauses (a) and (b), where the failure to do so, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
9.7 ERISA.
As soon as reasonably practicable after the Borrower or any of the Restricted Subsidiaries or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following events that, individually or in the aggregate (including in the aggregate
such events previously disclosed or exempt from disclosure hereunder, to the extent the liability therefor remains outstanding),
would be reasonably likely to have a Material Adverse Effect, the Borrower will deliver to the Administrative Agent a certificate of
an Authorized Officer or any other senior officer of the Borrower setting forth details as to such occurrence and the action, if
any, that the Borrower, such Restricted Subsidiary or such ERISA Affiliate is required or proposes to take, together with any
notices (required, proposed or otherwise) given to or filed with or by the Borrower, such Restricted Subsidiary, such ERISA
Affiliate, the PBGC, or a Multiemployer Plan administrator (provided that if such notice is given by the Multiemployer Plan
administrator, it is given to any of the Borrower or any of the Restricted Subsidiaries or any ERISA Affiliates thereof):
(a) that a Reportable Event has occurred; (b) that there has been a failure to satisfy the minimum funding standard under
Section 412 of the Code or Section 302 of ERISA or an application is to be made to the Secretary of the Treasury for a
waiver or modification of the minimum funding standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Pension Plan; (c) that a Pension Plan having an
Unfunded Current Liability has been or is to be terminated under Title IV of ERISA (including the giving of written notice thereof);
(d) that a Pension Plan has an Unfunded Current Liability that has or will result in a Lien under ERISA or the Code on the
assets of any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate; (e) that proceedings will
be or have been instituted by the PBGC to terminate a Pension Plan having an Unfunded Current Liability (including the giving of
written notice thereof); (f) that a proceeding has been instituted against the Borrower, a Restricted Subsidiary thereof or an
ERISA Affiliate pursuant to Section 515 of ERISA to collect a delinquent contribution to a Multiemployer Plan; (g) that
the PBGC has notified the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate of its intention to appoint a trustee
to administer any Pension Plan; (h) that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has failed to
make any required contribution or payment to a Multiemployer Plan; (i) that a determination has been made that any Pension Plan
is in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA or any
Multiemployer Plan is in “endangered or critical status” within the meaning of Section 432 of the Code or
Section 305 of ERISA; (j) that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred (or has
been notified in writing by a Multiemployer Plan administrator that it will incur) any liability (including any contingent or
secondary liability) to or on account of a Pension Plan or Multiemployer Plan pursuant to Section 409, 502(i) 502(l), 515,
4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code; (k) that a Pension Plan or
Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA; (l) that the termination of any
Foreign Plan has occurred that gives rise to liability for Holdings, the Borrower or any Restricted Subsidiary; or (m) that any
non-compliance with any funding requirements under Applicable Law for any Foreign Plan has occurred. Such certificate and notice
shall be provided as soon as reasonably practicable after the Borrower, any Restricted Subsidiary or any ERISA Affiliate knows or
has reason to know of the occurrence of any such event.
9.8 Good
Repair. The Borrower will, and will cause each of the Restricted Subsidiaries to, ensure that its properties and equipment used or
useful in its business in whomsoever’s possession they may be to the extent that it is within the control of such party to cause
same, are kept in good repair, working order and condition, normal wear and tear excepted, and that from time to time there are made in
such properties and equipment all needful and proper repairs, renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner customary for companies in the industry in which the Borrower and the Restricted Subsidiaries
conduct business and consistent with third party leases, except in each case to the extent the failure to do so could not be reasonably
expected to have a Material Adverse Effect.
9.9 End
of Fiscal Years; Fiscal Quarters. The Borrower will, for financial reporting purposes, cause (a) each of its, and each of
the Restricted Subsidiaries’, fiscal years to end on December 31 of each year and (b) each of its, and each of the
Restricted Subsidiaries’, fiscal quarters to end on dates consistent with such fiscal year- end and the Borrower’s past
practice; provided, however, that the Borrower may, upon written notice to, and consent by, the Administrative Agent,
change the financial reporting convention specified above to any other financial reporting convention reasonably acceptable to the
Administrative Agent, in which case the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to,
make any adjustments to this Agreement that are necessary in order to reflect such change in financial reporting.
9.10 Additional
Guarantors and Grantors. Subject to any applicable limitations set forth in the Guarantee, the Security Agreement, the Pledge Agreement
or any other Security Document, as applicable, the Borrower will cause (i) any direct or indirect Domestic Subsidiary of the Borrower
(other than any Excluded Subsidiary) formed or otherwise purchased or acquired after the Closing Date (including pursuant to an Acquisition)
and (ii) any Domestic Subsidiary of the Borrower that ceases to be an Excluded Subsidiary, to promptly execute and deliver to the
Collateral Agent (A) a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement substantially in the
form of Annex B, Exhibit 1 or Annex A, as applicable, to the respective agreement in order to become a Guarantor under the Guarantee,
a grantor under the Security Agreement and a pledgor under the Pledge Agreement, (B) a counterpart signature page to the Intercompany
Note, and (C) a joinder agreement or such comparable documentation to each other applicable Security Document, substantially in
the form annexed thereto, and to take all actions required thereunder to perfect the Liens created thereunder.
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9.11
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Pledges of Additional Stock and Evidence of Indebtedness.
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(a) Subject
to any applicable limitations set forth in the Security Documents, as applicable, the Borrower will pledge, and, if applicable, will
cause each other Subsidiary Guarantor (or a Person required to become a Subsidiary Guarantor pursuant to Section 9.10) to
pledge, to the Collateral Agent for the benefit of the Secured Parties, (i) all the Capital Stock (other than any Excluded
Capital Stock) of each Subsidiary owned by the Borrower or any Subsidiary Guarantor (or Person required to become a Subsidiary
Guarantor pursuant to Section 9.10), in each case, formed or otherwise purchased or acquired after the Closing Date, pursuant
to a supplement to the Pledge Agreement substantially in the form of Annex A thereto and (ii) except with respect to
intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in excess of $5,000,000
(individually) that are owing to the Borrower or any Subsidiary Guarantor (or Person required to become a Subsidiary Guarantor
pursuant to Section 9.10) (which shall be evidenced by a promissory note), in each case pursuant to a supplement to the Pledge
Agreement substantially in the form of Annex A thereto.
(b) The
Borrower agrees that all Indebtedness of the Borrower and each of its Restricted Subsidiaries that is owing to any Credit Party (or
a Person required to become a Subsidiary Guarantor pursuant to Section 9.10) shall be evidenced by the Intercompany Note, which
promissory note shall be required to be pledged to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the
Pledge Agreement.
9.12 Use
of Proceeds. The proceeds of the Initial Term Loans (other than the Tranche B Term Loans made on the First Incremental Agreement
Effective Date pursuant to the First Incremental Agreement and other than the Tranche C Term Loans made
on the Second Incremental Agreement Effective Date pursuant to the Second Incremental Agreement) and the Initial
Revolving Borrowing Amount shall be used (a) on the Closing Date, together with cash on hand at the Target and its Subsidiaries
and the proceeds from the Equity Contribution to pay the Merger Consideration, the Existing Debt Refinancing and/or the Transaction
Expenses and (b) to the extent any proceeds remain after the application described in clause (a), on and after the Closing
Date, for other general corporate purposes of the Borrower and its Subsidiaries. The proceeds of the Revolving Credit Loans
available under any Revolving Credit Facility, together with the proceeds of the Swingline Loans and the Letters of Credit, will be
used for working capital requirements and other general corporate purposes of the Borrower and its Subsidiaries, including the
financing of acquisitions, other Investments and Restricted Payments and other distributions on account of the Capital Stock of the
Borrower (or any Parent Entity thereof), in each case permitted hereunder, and any other use not prohibited hereby. The proceeds of
the Tranche B Term Loans made on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement shall be
used on the First Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans outstanding hereunder as
of the First Incremental Agreement Effective Date (immediately prior to giving effect to the First Incremental Agreement), all
accrued and unpaid interest thereon and all other Obligations in respect thereof and (b) to pay the fees, expenses and other
amounts incurred in connection with the transactions contemplated by the First Incremental Agreement. The
proceeds of the Tranche C Term Loans made on the Second Incremental Agreement Effective Date pursuant to the Second Incremental
Agreement shall be used on the Second Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans
outstanding hereunder as of the Second Incremental Agreement Effective Date (immediately prior to giving effect to the Second
Incremental Agreement), all accrued and unpaid interest thereon and all other Obligations in respect thereof, (b) to pay the
fees, expenses and other amounts incurred in connection with the transactions contemplated by the Second Incremental Agreement and
(c) other general corporate purposes of the Borrower and its Subsidiaries, which may include the financing of acquisitions and
other Investments, and any other use not prohibited hereby, and any other use not prohibited hereby. The proceeds of any
Incremental Term Loan Facility, the proceeds of any Revolving Credit Loans made pursuant to any Incremental Revolving Credit
Commitment Increase and the proceeds of any Additional/Replacement Revolving Credit Loans or Extended Revolving Credit Loans made
pursuant to any Additional/Replacement Revolving Credit Commitments or Extended Revolving Credit Commitments, as applicable, may be
used for working capital requirements and other general corporate purposes of the Borrower and its Subsidiaries including the
financing of acquisitions, other Investments and Restricted Payments and other distributions on account of the Capital Stock of the
Borrower (or any Parent Entity thereof), in each case permitted hereunder, and any other use not prohibited hereby.
9.13 Changes
in Business. The Borrower and its Restricted Subsidiaries, taken as a whole, will not fundamentally and substantively alter the character
of their business, taken as a whole, from the business conducted by the Borrower and its Restricted Subsidiaries, taken as a whole, on
the Closing Date and other similar, incidental, ancillary, supportive, complementary, synergetic or related businesses or reasonable extensions
thereof (and non-core incidental businesses acquired in connection with any Acquisition or Investment or other immaterial businesses).
(a) Subject
to the limitations set forth in this Agreement and the Security Documents, Holdings and the Borrower will, and will cause each other Subsidiary
Guarantor to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings, Mortgages and other similar documents), that may be required
under any Applicable Law, or that the Collateral Agent or the Required Lenders may reasonably request, in order to grant, preserve, protect
and perfect the validity and priority of the security interests created or intended to be created by the Security Documents, all at the
expense of the Borrower and its Restricted Subsidiaries.
(b) Subject
to any applicable limitations set forth in the Security Documents and in Sections 9.10 and 9.11, (i) if any Material Real Property
is acquired by any Credit Party after the Closing Date or, (ii) if any Credit Party that becomes a Credit Party after the Closing
Date owns any Material Real Property, the Borrower will notify the Collateral Agent (who shall thereafter notify the Lenders) thereof
and will, within 90 days after the acquisition of such Material Real Property or within 90 days of the date on which the applicable Credit
Party became a Credit Party, as applicable, (or such longer period as may be agreed by the Collateral Agent in its sole discretion), cause
such Material Real Property to be subjected to a Mortgage (provided, however, that, in the event any Material Real Property
subject to a Mortgage under this Section is located in a jurisdiction that imposes mortgage recording taxes or any similar fees or
charges, such Mortgage shall only secure an amount equal to the Fair Market Value of such Material Real Property) and will take, and cause
the Subsidiary Guarantors to take, such other actions as shall be necessary or reasonably requested by the Collateral Agent to grant and
perfect a Lien on such Material Real Property consistent with the applicable requirements of the Security Documents, including actions
described in Section 9.14(a) and Section 9.14(c), all at the expense of the Credit Parties.
(c) Any
Mortgage delivered to the Collateral Agent in accordance with Sections 9.14(b) shall be accompanied by:
(i) (i) a
completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged
Property and with respect to each Mortgaged Property that is: (x) in an area designated by the Federal Emergency Management Agency
as being located in a special flood hazard area, and (y) contains “improved real estate” or a “mobile home”
(as defined by the Flood Insurance Laws) within such special flood hazard area (a “Flood Hazard Property”), (ii) Borrower’s
written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such asset is a Flood Hazard Property
and as to whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program and
(iii) evidence of flood insurance in form and substance reasonably satisfactory to the Collateral Agent and in an amount required
by Section 9.3(b) (collectively, the “Flood Documents”); provided that the Flood Documents shall be delivered
to the Collateral Agent in accordance with Section 9.14(f);
(ii) a
policy or policies of title insurance or a marked unconditional commitment or binder thereof issued by a nationally recognized title insurance
company insuring title to such Mortgaged Property is vested in such Credit Party for an amount not to exceed the Fair Market Value (determined
at the time described in Section 9.14(b) above) and together with such endorsements as the Collateral Agent may reasonably request
and which are available at commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property is located;
(iii) unless
the Collateral Agent shall have otherwise agreed, but only to the extent already prepared and otherwise available, either (A) a survey
of the applicable Mortgaged Property for which all necessary fees (where applicable) have been paid (1) prepared by a surveyor reasonably
acceptable to the Collateral Agent, (2) dated or re-certificated not earlier than three months prior to the date of such delivery
or such other date as may be reasonably satisfactory to the Collateral Agent in its sole discretion, (3) for Mortgaged Property situated
in the United States, certified to the Collateral Agent and the title insurance company issuing the title insurance policy for such Mortgaged
Property pursuant to clause (ii), which certification shall be reasonably acceptable to the Collateral Agent and (4) for Mortgaged
Property situated in the United States, complying with current “Minimum Standard Detail Requirements for ALTA/NSPS Land Title
Surveys,” jointly established and adopted by American Land Title Association, the American Congress on Surveying and Mapping
and the National Society of Professional Surveyors (except for such deviations as are acceptable to the Collateral Agent) or (B) coverage
under the title insurance policy or policies referred to in clause (ii) above that does not contain a general exception for survey
matters and which contains survey-related endorsements reasonably acceptable to the Collateral Agent; and
(iv) opinions
of counsel to the Credit Party mortgagor with respect to the enforceability, due authorization, execution and delivery of the applicable
Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Collateral Agent.
(d) Notwithstanding
anything herein to the contrary, if the Collateral Agent and the Borrower reasonably determine in writing that the time or cost of
creating or perfecting any Lien on any property (including the time and cost required to obtain the flood insurance required under
Section 9.14(c)(i)) is excessive in relation to the benefits afforded to the Lenders thereby, then such property may be
excluded from the Collateral for all purposes of the Credit Documents.
(e) Notwithstanding
anything herein to the contrary, the Credit Parties shall not be required to take any actions outside the United States, to (i) create
any security interest in assets titled or located outside the United States, or (ii) perfect or make enforceable any security interests
in any Collateral.
(f) Notwithstanding
anything contained in this Agreement to the contrary, at least twenty days prior to the date on which any Mortgage shall be executed and
delivered with respect to any Material Real Property, the Borrower (or such other applicable Credit Party) shall deliver the Flood Documents
with respect to such Material Real Property to the Collateral Agent for prompt distribution to each Revolving Credit Lender; provided
that (x) each Revolving Credit Lender shall advise the Collateral Agent promptly upon completion of its flood insurance diligence
and compliance and (y) if any Revolving Credit Lender has notified the Collateral Agent in writing (who shall promptly notify the
Borrower) during such twenty day period commencing from the date on which such Revolving Credit Lender receives the Flood Documents that
its flood insurance diligence and compliance has not been completed, the relevant Credit Party shall instead execute and deliver such
Mortgage within three Business Days of receipt of written notice from the Collateral Agent (from the date of notice from such Revolving
Credit Lender to the Collateral Agent) that such flood insurance diligence is complete (or such longer period as may be agreed by the
Collateral Agent in its sole discretion); provided, further that (i) no delay in the execution by any Credit Party
of any Mortgage as a result of the application of, and compliance with, this sentence shall result in a breach of any obligation or the
occurrence of a Default or Event of Default hereunder or under any other Credit Document and (ii) for the avoidance of doubt, in
no event shall the application of, and compliance with, this sentence require the delivery of Mortgages or any other related documentation
or deliverables prior to the date that is 90 days after the acquisition of such Material Real Property or within 90 days of the date on
which the applicable Credit Party became a Credit Party, as applicable.
9.15 Designation
of Subsidiaries. The Board of Directors of the Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary
or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that immediately before and after such designation, no Event
of Default shall have occurred and be continuing. The designation of any Subsidiary as an Unrestricted Subsidiary after the Closing Date
shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the Fair Market Value of the Borrower’s
Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the Incurrence at the time
of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time. Upon any such designation of any
Unrestricted Subsidiary as a Restricted Subsidiary (but without duplication of any amount reducing such Investment in such Unrestricted
Subsidiary pursuant to the definition of “Investment” or the definition of “Available Amount”), the Borrower and/or
the applicable Restricted Subsidiaries shall receive a credit against the applicable clause in Section 10.5 or Section 10.6
that was utilized for the Investment in such Unrestricted Subsidiary for all Returns in respect of such Investment.
9.16 Maintenance
of Ratings. The Borrower will use commercially reasonable efforts to cause the public credit rating for the Initial Term Loan Facility
issued by S&P and the public credit rating for the Initial Term Loan Facility issued by Moody’s, and the Borrower’s public
corporate credit rating issued by S&P and public corporate credit rating issued by Moody’s to each be maintained (but not to
obtain or maintain a specific rating).
9.17 Post-Closing
Obligations. To the extent not executed and delivered on the Closing Date, unless otherwise agreed by the Administrative Agent in
its reasonable discretion, execute and deliver the documents and complete the tasks set forth on Schedule 9.17, in each case within the
time limits specified on such schedule (or such later time as the Administrative Agent shall agree in its reasonable discretion).
SECTION 10. Negative Covenants. The Borrower (and, with respect to Section 10.9, Holdings) hereby covenants and agrees that on
the Closing Date and thereafter, until the Total Commitment and all Letters of Credit have terminated (unless such Letters of Credit have
been Cash Collateralized on terms and conditions set forth in Section 3.8) and the Loans and Unpaid Drawings, together with interest,
fees and all other payment Obligations (other than Hedging Obligations under Secured Hedging Agreements, Cash Management Obligations under
Secured Cash Management Agreements or contingent indemnification or other contingent obligations not then due and payable), are paid in
full:
10.1 Limitation
on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, Incur,
contingently or otherwise, with respect to any Indebtedness, except:
(a) (i) Indebtedness
arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Agreement Refinancing
Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(c) (i)
Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letters of credit,
warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice (including
in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability
insurance or self- insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation
claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance) and
(ii) Indebtedness supported by Letters of Credit or other letters of credit under similar facilities in an amount not to exceed
the Stated Amount of such Letters of Credit or stated amount of such other letters of credit under such similar facilities;
(d) Except
as otherwise limited by clauses (a), (b), (h) and (u) of this Section 10.1, Guarantee Obligations Incurred by (i) any
Restricted Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiary that is permitted to be Incurred under
this Agreement and
(ii) the Borrower in respect of Indebtedness of any
Restricted Subsidiary that is permitted to be Incurred under this Agreement; provided that, if the applicable Indebtedness is subordinated
to the Obligations, any such Guarantee Obligations shall be subordinated to the Obligations;
(e) Guarantee
Obligations Incurred in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors, licensees,
sublicensees or distribution partners;
(f) (i) Indebtedness
(including Financing Lease Obligations and other Indebtedness arising under mortgage financings and purchase money Indebtedness
(including any industrial revenue bond, industrial development bond or similar financings)) the proceeds of which are used to
finance the acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement
of fixed or capital assets or otherwise Incurred in respect of Capital Expenditures; provided that (A) such Indebtedness
is Incurred concurrently with or within 270 days after the completion of the applicable acquisition, development, construction,
repair, restoration, replacement, maintenance, upgrade, expansion or improvement or the making of the applicable Capital Expenditure
and (B) such Indebtedness is not Incurred to acquire Capital Stock of any Person; provided, further, that, at the
time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal
amount of such Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of
Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, except
as contemplated by the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the
greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test
Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon
the Section 9.1 Financials most recently delivered on or prior to such date) minus (II) the aggregate amount of
Indebtedness incurred pursuant to Section 10.1(g) and (ii) any Permitted Refinancing Indebtedness Incurred to
Refinance such Indebtedness;
(g) (i) Indebtedness
constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Closing Date (and set forth on Schedule
10.1) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at the time of Incurrence thereof
and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then
outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant
to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted
Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $10,000,000 and (y) 20% of Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence
(measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior
to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any
Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness.
(h) Closing
Date Indebtedness and any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness
in respect of Hedging Agreements Incurred in the ordinary course of business or consistent with past practice and, in each case, at the
time entered into, not for speculative purposes;
(j) (i) Indebtedness
of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted
Subsidiary that survives a merger, consolidation or amalgamation with such Person or any of its Subsidiaries) or Indebtedness attaching
to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Closing Date as the result of an Acquisition
or similar Investment or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary; provided
that
(A) subject
to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred
and is continuing;
(B) subject
to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such
Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower
and the Restricted Subsidiaries shall be in compliance on a pro forma basis, with either (X) a Consolidated EBITDA to Consolidated
Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date
of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of
such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest
Expense Ratio immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total
Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to
the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had
occurred on the first day of such Test Period of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated
Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) such
Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case,
was not created in anticipation thereof;
(D) such
Indebtedness is not guaranteed in any respect by Holdings, the Borrower or any Restricted Subsidiary (other than any such Person that
so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries) except to the extent permitted
under Section 10.5 or Section 10.6;
(E) (x) the
Capital Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such Person
executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and security
arrangements in relation to the Obligations) and a counterpart signature page to the Intercompany Notes, in each case to the extent
required under Section 9.10, 9.11 or 9.14(b), as applicable; provided that the requirements of this clause (E) shall not apply
to any Indebtedness of the type that could have been Incurred under Section 10.1(f) or Section 10.1(g); and
(ii) any
Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(k) (i)
Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition or similar Investment; provided
that
(A) subject
to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred
and is continuing;
(B) subject
to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such
Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower
and the Restricted Subsidiaries shall be in compliance on a pro forma basis with either (X) a Consolidated EBITDA to Consolidated
Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date
of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of
such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest
Expense Ratio immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total
Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to
the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had
occurred on the first day of such Test Period of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated
Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) the
terms of such Indebtedness do not provide for any scheduled repayment (including at maturity), mandatory repayment, redemption, repurchase,
defeasance, acquisition, similar payment or sinking fund obligation prior to the Latest Maturity Date, other than customary prepayments,
repurchases, redemptions, defeasances or similar payments of, or offers to prepay, redeem, repurchase, defease, acquire or similarly pay
upon, a change of control, asset sale event or casualty, eminent domain or condemnation event or on account of the accumulation of excess
cash flow and customary acceleration rights upon an event of default;
(D) if
such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall not be guaranteed
in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section 10.5;
(E) (x) the
Capital Stock of any Person acquired in such Acquisitions or similar Investment (the “acquired Person”) is
pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such acquired Person executes a
supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and a counterpart signature page to the
Intercompany Note (or alternative guarantee and security arrangements in relation to the Obligations), in each case, to the extent
required under Section 9.10, 9.11 or 9.14(b), as applicable;
(F) the
terms of such Indebtedness shall be consistent with the requirements set forth in clause (b) and, if applicable, clause (f), of the
proviso to the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized Officer of the
Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness, together with
a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto,
stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive
evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within
such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees); and
(G) at
the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions being consummated
in connection therewith and the use of the proceeds thereof, the aggregate principal amount of all Indebtedness Incurred by Non-Credit
Parties pursuant to, and then outstanding under, this Section 10.1(k), when aggregated with the aggregate principal amount of (1) all
other Indebtedness Incurred by Non- Credit Parties and then outstanding pursuant to Section 10.1(s) and (2) all Permitted
Refinancing Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to clause (ii) of this Section 10.1(k),
shall not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x) $15,000,000
and (y) 30% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or
prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most
recently delivered on or prior to such date);
(ii) any
Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(l) (i) unsecured
Indebtedness in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services
or progress payments in connection with such goods and services; provided that such obligations are Incurred in connection with
open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing
of money and (ii) unsecured Indebtedness in respect of intercompany obligations of the Borrower or any Restricted Subsidiary in respect
of accounts payable Incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection
with the borrowing of money;
(m) Indebtedness
arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, earn-outs,
deferred purchase price, payment obligations in respect of any non-compete, consulting or similar arrangement, contingent earnout obligations
or similar obligations (including earn-outs), in each case entered into in connection with the Transactions, Acquisitions, other Investments
and the Disposition of any business, assets or Capital Stock permitted hereunder, other than Guarantee Obligations Incurred by any Person
acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing such acquisition, but including in
connection with Guarantee Obligations, letters of credit, surety bonds on performance bonds securing the performance of the Borrower or
any such Restricted Subsidiary pursuant to such agreements;
(n) Indebtedness
in respect of contracts (including trade contracts and government contracts), statutory obligations, performance bonds, bid bonds,
custom bonds, stay and appeal bonds, surety bonds, indemnity bonds, judgment bonds, performance and completion and return of money
bonds and guarantees, financial assurances, bankers’ acceptance facilities and similar obligations or obligations in respect
of letters of credit, bank guarantees or similar instruments related thereto, in each case not in connection with the borrowing of
money, including those incurred to secure health, safety and environmental obligations;
(o) Indebtedness
of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take or pay obligations
contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money;
(p) (i)
Indebtedness representing deferred compensation to officers, directors, managers, employees, consultants or independent contractors
of Holdings (or any Parent Entity thereof or any Equityholding Vehicle), the Borrower and the Restricted Subsidiaries Incurred in
the ordinary course of business and (ii) Indebtedness consisting of obligations of Holdings (or any Parent Entity thereof or
any Equityholding Vehicle), the Borrower or the Restricted Subsidiaries under deferred compensation arrangements to their officers,
directors, managers, employees, consultants or independent contractors or other similar arrangements Incurred by such Persons in
connection with the Transactions, Acquisitions or any other Investment permitted under Section 10.5 or Section 10.6;
(q) unsecured
Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to future, current or former officers,
managers, consultants, directors, employees and independent contractors (or their respective Immediate Family Members) of Holdings, the
Borrower, any of its Subsidiaries or any Parent Entity or Equityholding Vehicle, in each case, to finance the retirement, acquisition,
repurchase or redemption of Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle to the extent such Parent
Entity or any Equityholding Vehicle uses the proceeds to finance the purchase or redemption (directly or indirectly) of its Capital Stock)
or the Capital Stock of the Borrower, in each case to the extent permitted by Section 10.6; provided that, any such Indebtedness
shall reduce availability under Section 10.6 to the extent of any amounts incurred from time to time under this Section 10.1(q),
whether or not outstanding, except in respect of amounts forgiven or cancelled without payment being made;
(r) Cash
Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements,
employees’ credit or purchase cards, overdraft protections and similar arrangements and otherwise in connection with deposit accounts
and repurchase agreements permitted under Section 10.5;
(s) additional
senior, senior subordinated or subordinated Indebtedness of the Borrower and the Restricted Subsidiaries, and Permitted Refinancing
Indebtedness thereof; provided that, after giving pro forma effect to the Incurrence of any such Indebtedness and any
Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and Restricted Subsidiaries
shall be in compliance on a pro forma basis with either (x) a Consolidated EBITDA to Consolidated Interest Expense Ratio, as
such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if
such Incurrence, acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of
not less than 2.00:1.00 or (y) a Consolidated Total Debt to Consolidated EBITDA Ratio of less than or equal to 6.50:1.00, as
such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if
such Incurrence, acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period; provided,
that, at the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions
being consummated in connection therewith and the use of the proceeds thereof, the aggregate principal amount of all Indebtedness
Incurred and then outstanding under this Section 10.1(s) by Non-Credit Parties, when aggregated with the aggregate
principal amount of (1) all other Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to
Section 10.1(k) and (2) Permitted Refinancing Indebtedness Incurred pursuant to, and then outstanding under, this
clause (s) to Refinance Indebtedness of Non-Credit Parties, shall not exceed, except as contemplated by the definition of
“Permitted Refinancing Indebtedness”, the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as
of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such
date); provided, further, that the terms of such Indebtedness shall be consistent with the requirements of clause
(b) and, if applicable, clause (f) of the proviso of the definition of “Permitted Additional Debt”; provided that
a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to
the Incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such
Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms
and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing
requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such
determination (including a reasonable description of the basis upon which it disagrees);
(t) (i)
Indebtedness Incurred in connection with any Sale Leaseback and (ii) any Permitted Refinancing Indebtedness Incurred to
Refinance such Indebtedness;
(u) Indebtedness
in respect of (i) Permitted Additional Debt, the Net Cash Proceeds from which or, in the case of commitments, the new
commitments of which, are required to be applied to (x) prepay the Term Loans and related amounts in the manner set forth in
Section 5.2(a)(i) or (y) permanently reduce Revolving Credit Commitments, Extended Revolving Credit Commitments or
Additional/Replacement Revolving Credit Commitments in the manner set forth in Section 5.2(e)(ii) (and any such Permitted
Additional Debt shall be deemed to have been Incurred pursuant to this clause (i)), (ii) other Permitted Additional Debt; provided that,
in the case of this clause (ii), at the time of Incurrence or provision thereof and after giving pro forma effect thereto and such
other transactions being consummated in connection therewith and the use of the proceeds thereof, assuming that all commitments, if
any, thereunder were fully drawn, the aggregate principal amount of (X) all such Indebtedness Incurred or provided under this
Section 10.1(u)(ii) plus (Y) any Incremental Term Loans (other than those Incremental Term Loans Incurred
under the proviso to Section 2.14(b)), any Incremental Revolving Credit Commitment Increases and any Additional/Replacement
Revolving Credit Commitments (other than those Additional/Replacement Revolving Credit Commitments Incurred or provided under the
proviso to Section 2.14(b)) that, in each case, have been Incurred or provided pursuant to Section 2.14(b)(A), shall not
exceed the sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, after
giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified
Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and
Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under Section 2.14(b)(B) were fully
drawn), the Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio, calculated as of the
last day of the Test Period most recently ended on or prior to the Incurrence of any such Permitted Additional Debt, calculated on a
pro forma basis, as if such Incurrence (and any related transaction) had occurred on the first day of such Test Period, that is no
greater than either (x) 5.25:1.00 or (y) if Incurred in connection with an Acquisition or similar Investment, no greater
than prior Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment; provided, however,
that, in the case of the Incurrence of any Indebtedness under this clause (ii) that does not constitute or is not intended to
constitute First Lien Obligations, in lieu of compliance with the Consolidated First Lien Debt to Consolidated EBITDA Ratio set
forth above, the Borrower shall be in compliance with a Consolidated Total Debt to Consolidated EBITDA Ratio, calculated as of the
last day of the Test Period most recently ended on or prior to the Incurrence of any such Permitted Additional Debt, calculated on a
pro forma basis (but excluding cash proceeds of such Incurrence), as if such Incurrence (and any related transaction) had occurred
on the first day of such Test Period, that is no greater than either (x) 6.50:1.00 or (y) if Incurred in connection with
an Acquisition or similar Investment, no greater than prior Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior
to such Acquisition or similar Investment (the ratio thresholds set forth in this clause (ii), the “Incremental Ratio Debt
Amount”); provided, further, that, in each case of this clause (ii), subject to Section 1.11, no Event
of Default (or, in the case of the Incurrence or provision of Permitted Additional Debt in connection with an Acquisition or similar
Investment, no Event of Default under either Section 11.1 or 11.5) shall have occurred and be continuing at the time of the
Incurrence or provision of any such Indebtedness or after giving pro forma effect thereto and (iii) any Permitted Refinancing
Indebtedness Incurred to Refinance such Indebtedness; provided that, without limitation of the requirements set forth in the
definition of “Permitted Refinancing Indebtedness”, such Permitted Refinancing Indebtedness shall be of the type
described in the definition of “Permitted Additional Debt”;
(v) Indebtedness
of Non-Credit Parties; provided that, at the time of the Incurrence thereof and after giving pro forma effect to such Incurrence
and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding in reliance
on this Section 10.1(v) shall not exceed the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the
Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is
Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
(w) unsecured
Indebtedness in the amount equal to the sum of (i) any Excluded Contribution to the extent not counted for purposes of the Available
Equity Amount or Cure Amount and (ii) the Available RP Capacity Amount; provided that the maturity date of such Indebtedness
is not earlier than the Latest Maturity Date;
(x) Indebtedness
of the Borrower and the Restricted Subsidiaries; provided that, at the time of the Incurrence thereof and after giving pro forma
effect to such Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness the
outstanding under this Section 10.1(x) shall not exceed the greater of (x) $37,500,000 and (y) 75% of Consolidated
EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness
is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
(y) (i)
Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary; provided
that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Subsidiary Guarantor (other than any Indebtedness
in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or
consistent with past practice (and not in connection with the borrowing of money)) shall be evidenced by the Intercompany Note and
(ii) Indebtedness in respect of shares of Disqualified Capital Stock of a Restricted Subsidiary issued to the Borrower or
another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event that
results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer (other than the
incurrence of a lien permitted by Section 10.2) of any such shares of Disqualified Capital Stock (except to the Borrower or
another of the Restricted Subsidiaries or any pledge of such Capital Stock constituting a lien permitted by Section 10.2 (but
not foreclosure thereon)) shall be deemed in each case to be an issuance of such shares of Disqualified Capital Stock (to the extent
such Disqualified Capital Stock is then outstanding) not permitted by this clause;
(z) Indebtedness
in respect of commercial letters of credit obtained in the ordinary course of business;
(aa) Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business;
(bb) customer
deposits and advance payments received in the ordinary course of business from customers for goods or services purchased in the ordinary
course of business;
(cc) Indebtedness
Incurred 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 on a recourse basis;
(dd) Indebtedness
of the Borrower or any Restricted Subsidiary undertaken in connection with cash management and related activities with respect to any
Subsidiary or Joint Venture in the ordinary course of business;
(ee) Indebtedness
arising solely as a result of the existence of any Lien (other than for Liens securing debt for borrowed money) permitted under Section 10.2;
(ff) Indebtedness
of any Receivables Subsidiary arising under a Qualified Receivables Facility;
(gg) Indebtedness to the seller of any business or assets permitted to be acquired by the Borrower or any Restricted Subsidiary under
this Agreement; provided that, at the time of the Incurrence thereof and after giving pro forma effect to such Incurrence and other
transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding in reliance on this
Section 10.1(ii) shall not exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower
and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of such date)
based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(hh) obligations in respect of Disqualified Capital Stock; provided that, at the time of the Incurrence thereof and after giving
pro forma effect to such Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness
then outstanding under this clause (hh) shall not exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of
the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured
as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(ii) endorsement
of instruments or other payment items for deposit in the ordinary course of business;
(jj) performance Guarantees of the Borrower and its Restricted Subsidiaries primarily guaranteeing performance
of contractual obligations of the Borrower or Restricted Subsidiaries to a third party and not primarily for the purpose of guaranteeing
payment of Indebtedness;
(kk) obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any
Subsidiary of the 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) to
the extent constituting Indebtedness, the 2017 Contingent Value Rights;
(mm) unfunded
pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to the extent they
do not result in an Event of Default under Section 11.6; and
(nn) all
customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent
interest on obligations described in each of the clauses of this Section 10.1.
For purposes of
determining compliance with this Section 10.1, in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Indebtedness described above, the Borrower shall, in its sole discretion, classify and reclassify or later divide,
classify or reclassify all or a portion of such item of Indebtedness (or any portion thereof and including as between the
Incremental Base Amount and the Incremental Ratio Debt Amount) in a manner that complies with this Section 10.1 and will only
be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that all
Indebtedness outstanding under the Credit Documents and any Credit Agreement Refinancing Indebtedness Incurred to Refinance (in
whole or in part) such Indebtedness will be deemed to have been Incurred in reliance only on the exception set forth in
Section 10.1(a) (but without limiting the right of the Borrower to classify and reclassify, or later divide, classify or
reclassify, Indebtedness incurred under Section 2.14 or Section 10.1(u) as between the Incremental Base Amount
and the Incremental Ratio Debt Amount). The accrual of interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section 10.1.
At the time of Incurrence,
the Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in
the paragraphs above. It is understood and agreed that any Indebtedness in the form of loans secured by Liens on the Collateral having
a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but without regard to control of remedies)
shall be subject to the MFN Protection set forth in Section 2.14(c) (but subject to the MFN Exceptions to such MFN Protection)
as if such Indebtedness were an Incremental Term Loan.
10.2 Limitation
on Liens. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien upon any property or assets of any kind (real or personal, tangible or intangible) of the Borrower
or any Restricted Subsidiary, whether now owned or hereafter acquired, except:
(a) Liens
created pursuant to (i) the Credit Documents to secure the Obligations (including Liens permitted pursuant to Section 3.8) or
permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage, (ii) the Permitted Additional Debt Documents
securing Permitted Additional Debt Obligations permitted to be Incurred under Section 10.1(u) (provided that such Liens
do not extend to any assets that are not Collateral) and (iii) the documentation governing any Credit Agreement Refinancing Indebtedness
(provided that such Liens do not extend to any assets that are not Collateral); provided that, (A) in the case of Liens
described in subclause (ii) or (iii) above securing Permitted Additional Debt Obligations or Credit Agreement Refinancing Indebtedness
that constitute, or are intended to constitute, First Lien Obligations, the applicable Permitted Additional Debt Secured Parties or parties
to such Credit Agreement Refinancing Indebtedness (or a representative thereof on behalf of such holders) shall have entered into with
the Collateral Agent a Customary Intercreditor Agreement which agreement shall provide that the Liens on the Collateral securing such
Permitted Additional Debt Obligations or Credit Agreement Refinancing Indebtedness shall have the same priority ranking as the Liens on
the Collateral securing the Obligations (but without regard to control of remedies) and (B) in the case of Liens described in subclause
(ii) or (iii) above securing Permitted Additional Debt Obligations or Credit Agreement Refinancing Indebtedness that do not
constitute, or are not intended to constitute, First Lien Obligations, the applicable Permitted Additional Debt Secured Parties or parties
to such Credit Agreement Refinancing Indebtedness (or a representative thereof on behalf of such holders) shall have entered into a Customary
Intercreditor Agreement with the Collateral Agent which agreement shall provide that the Liens on the Collateral securing such Permitted
Additional Debt Obligations or Credit Agreement Refinancing Indebtedness, as applicable, shall rank junior in priority to the Liens on
the Collateral securing the Obligations and any other First Lien Obligations. Without any further consent of the Lenders, the Administrative
Agent and the Collateral Agent shall be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor
Agreement or any amendment (or amendment and restatement) to the Security Documents or a Customary Intercreditor Agreement to the extent
necessary to effect the provisions contemplated by this Section 10.2(a);
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(b)
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Permitted Encumbrances;
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(c) Liens
securing Indebtedness permitted pursuant to Section 10.1(f) or Section 10.1(g) (including the interests of
vendors and lessors under conditional sale and title retention agreements); provided that (i) such Liens attach
concurrently with or within 270 days after the acquisition, lease, repair, replacement, restoration, construction, expansion or
improvement (as applicable) of the property subject to such Liens or the making of the applicable Capital Expenditures,
(ii) other than the property financed by such Indebtedness, such Liens do not at any time encumber any property, except for
replacements thereof and accessions and additions to such property and ancillary rights thereto and the proceeds and the products
thereof and customary security deposits, related contract rights and payment intangibles and other assets related thereto and
(iii) with respect to Financing Lease Obligations, such Liens do not at any time extend to, or cover any assets (except for
accessions and additions to such assets, replacements and products thereof and customary security deposits, related contract rights
and payment intangibles), other than the assets subject to such Financing Lease Obligations and ancillary rights thereto; provided
that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided
by such lender;
(d) Liens
on property and assets existing on the Closing Date or pursuant to agreements in existence on the Closing Date and listed on Schedule
10.2 or, to the extent not listed in such Schedule, such property or assets have a Fair Market Value that does not exceed $2,500,000 in
the aggregate; provided that (i) such Lien does not extend to any other property or asset of the Borrower or any Restricted
Subsidiary, other than (A) after acquired property that is affixed or incorporated into the property covered by such Lien or financed
by Indebtedness permitted by Section 10.1 and (B) the proceeds and products thereof and (ii) such Lien shall secure only
those obligations that such Liens secured on the Closing Date and any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness
permitted by Section 10.1;
(e) the
modification, Refinancing, replacement, extension or renewal (or successive modifications, Refinancings, replacements, extensions or renewals)
of any Lien permitted by clauses (c), (d), (f), (p), (t), (u) and (bb) of this Section 10.2 upon or in the same assets theretofore
subject to such Lien other than (i) after-acquired property that is affixed or incorporated into the property covered by such Lien,
(ii) in the case of Liens permitted by clauses (f), (t), (u) or (bb), after-acquired property subject to a Lien securing Indebtedness
permitted under Section 10.1, the terms of which Indebtedness require or include a pledge of after-acquired property (it being understood
that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition)
and (iii) the proceeds and products thereof;
(f) Liens
existing on the assets, or shares of Capital Stock, of any Person that becomes a Restricted Subsidiary (including by designation as a
Restricted Subsidiary pursuant to Section 9.15), or existing on assets acquired, pursuant to an Acquisition or other similar Investment
permitted under Section 10.5 or Section 10.6 to the extent the Liens on such assets secure Indebtedness permitted by Section 10.1(j);
provided that such Liens attach at all times only to the same assets that such Liens attached to (other than (i) after-acquired
property that is affixed or incorporated into the property covered by such Lien, (ii) after-acquired property subject to a Lien securing
Indebtedness permitted under Section 10.1(j), the terms of which Indebtedness require or include a pledge of after-acquired property
(it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied
but for such acquisition) and (iii) the proceeds and products thereof), and secure only, the same Indebtedness or obligations (or
any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness permitted by Section 10.1) that such Liens secured,
immediately prior to such Acquisition or such other Investment, as applicable;
(g) Liens
arising out of any license, sublicense or cross-license of Intellectual Property permitted under Section 10.4;
(h) Liens
securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary in favor of the Borrower or any Restricted Subsidiary;
(i) Liens
(i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection,
(ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business
and (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right to set off)
and which are within the general parameters customary in the banking industry;
(j) Liens
(i) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant
to Section 10.5 or Section 10.6 to be applied against the purchase price for such Investment (or to secure letters of credit,
bank guarantee or similar instruments posted or issued in respect thereof), and (ii) consisting of an agreement to sell, transfer,
lease or otherwise Dispose of any property in a transaction permitted under Section 10.4, in each case, solely to the extent such
Investment or sale, Disposition, transfer or lease, as the case may be, would have been permitted on the date of the creation of such
Lien;
(k) (i) Liens
arising out of conditional sale, title retention (including any security or quasi- security arising under any retention of title, extended
retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods or, in the
case of an extended retention of title arrangement, receivables resulting from the sale of such goods supplied to the Borrower or any
of the Restricted Subsidiaries in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as
a result of any default or omission by the Borrower or any of the Restricted Subsidiaries), consignment or similar arrangements for sale
of property and bailee arrangements entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business
permitted by this Agreement and (ii) Lien arising by operation of Applicable Law under Article 2 of the Uniform Commercial Code
(or any similar provision under any other Applicable Law) in favor of a seller or buyer of goods;
(l) Liens
deemed to exist in connection with Investments in repurchase agreements permitted under Section 10.5; provided that such Liens
do not extend to any assets other than those that are the subject of such repurchase agreement;
(m) Liens
that are contractual rights of set-off (A) relating to the establishment of depository relations with banks not given in connection
with the Incurrence of Indebtedness, (B) relating to pooled deposit, automatic clearing house or sweep accounts of the Borrower or
any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the
Borrower and the Restricted Subsidiaries or (C) relating to purchase orders and other agreements entered into with customers of the
Borrower or any Restricted Subsidiary in the ordinary course of business; provided that, Liens permitted pursuant to this clause
(m) may be first priority Liens and not subject to any Lien or security interest securing the Obligations;
(n) Liens
(i) solely on any earnest money deposits of cash or Cash Equivalents made by the Borrower or any of the Restricted Subsidiaries in
connection with any letter of intent or purchase agreement permitted hereunder or to secure any letter of credit, bank guarantee or similar
instrument issued or posted in respect thereof and (ii) consisting of an agreement to Dispose of any property in a transaction permitted
under Section 10.4;
(o) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(p) Liens
on property subject to Sale Leasebacks and customary security deposits, related contract rights and payment intangibles related thereto;
(q) the
prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(r) agreements
to subordinate any interest of the Borrower or any Restricted Subsidiary in any accounts receivable or other proceeds arising from inventory
consigned by the Borrower or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business;
(s)
(i) Liens on Capital Stock in Joint Ventures securing obligations of such Joint Ventures and
(ii) to the extent constituting Liens, transfer restrictions, purchase options, rights of first refusal, tag or drag, put or
call or similar rights of minority holders or Joint Ventures partners, in each case under partnership, limited liability coverage,
Joint Venture or similar Organizational Documents;
(t) Liens
with respect to property or assets of any Non-Credit Party securing Indebtedness of a Non-Credit Party permitted under Section 10.1(v);
(u) Liens
not otherwise permitted by this Section 10.2; provided that, at the time of the incurrence thereof and after giving pro forma
effect thereto and the use of proceeds thereof, the aggregate amount of Indebtedness and other obligations then outstanding and secured
thereby (when aggregated with the principal amount of Indebtedness secured by Liens Incurred in reliance on, and then outstanding under,
Section 10.2(e) above in respect of a Refinancing of Indebtedness previously secured under this Section 10.2(u)) does
not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x) $25,000,000
and (y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or
prior to such date such Lien is created, incurred, assumed or suffered to exist (measured as such date) based upon the Section 9.1
Financials most recently delivered on or prior to such date; provided that, if such Liens are on Collateral, then the Borrower
may elect to have the holders of the Indebtedness or other obligations secured thereby (or a representative or trustee on their behalf)
enter into a Customary Intercreditor Agreement providing that the consensual Liens on the Collateral (other than cash and Cash Equivalents)
securing such Indebtedness or other obligations shall rank either equal in priority or junior to the Liens on the Collateral securing
the Obligations. Without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to
negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor Agreement or any amendment (or amendment
and restatement) to the Security Documents or a Customary Intercreditor Agreement to the extent necessary to effect the provisions contemplated
by this Section 10.2(u);
(v) Liens
encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other
brokerage accounts maintained in the ordinary course of business and, at the time of incurrence thereof, not for speculative purposes;
(w) Liens
on cash and Cash Equivalents used to defease or to satisfy or discharge Indebtedness; provided such defeasance or satisfaction
or discharge is permitted under this Agreement;
(x) 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 or consistent with past practice;
(y) Liens securing commercial letters of credit permitted pursuant to Section 10.1(z);
(z) Liens
on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(aa)
Liens securing Hedging Agreements submitted for clearing in accordance with Applicable Law;
(bb)
Liens securing Indebtedness permitted
under Section 10.1; provided that, subject to Section 1.11, after giving pro forma effect to the Incurrence of any
such Liens and the Incurrence of such Indebtedness and to any Acquisition, Investment, Specified Transaction or Specified Restructuring
to be consummated in connection therewith, the Borrower and Restricted Subsidiaries shall be in compliance on a pro forma basis with
(A) in the case of any Indebtedness that constitutes or is intended to constitute First Lien Obligations, a Consolidated First Lien
Debt to Consolidated EBITDA Ratio that is no greater than 5.25:1.00 or (B) in the case of any Indebtedness that that does not constitute
or is not intended to constitute First Lien Obligations, a Consolidated Secured Debt to Consolidated EBITDA Ratio that is no greater
than 6.50:1.00, in each case as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the
date of such Incurrence, as if such Incurrence, Acquisition, Investment, and any Specified Transaction or Specified Restructuring
to be consummated in connection therewith occurred on the first day of such Test Period; provided; further; that, if such Liens are on
Collateral, then the Borrower may elect to have the holders of the Indebtedness or other obligations secured thereby (or a representative
or trustee on their behalf) enter into a Customary Intercreditor Agreement providing that the consensual Liens on the Collateral (other
than cash and Cash Equivalents) securing such Indebtedness or other obligations shall rank either equal in priority or junior to the
Liens on the Collateral securing the Obligations. Without any further consent of the Lenders, the Administrative Agent and the Collateral
Agent shall be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor Agreement or
any amendment (or amendment and restatement) to the Security Documents or a Customary Intercreditor Agreement to the extent necessary
to effect the provisions contemplated by this Section 10.2(bb);
(cc)
with respect to any Foreign Subsidiary,
Liens arising mandatorily by legal requirements (and not as a result of under-capitalization of such Foreign Subsidiary);
(dd) Liens on Escrowed Proceeds for the benefit of the related holders of debt securities or other Indebtedness
permitted to be incurred hereunder (or the underwriters or arrangers thereof) or on cash set aside at the time of the Incurrence of any
Indebtedness or government securities purchased with such cash, in either case to the extent such cash or government securities prefund
the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose;
(ee) Liens on vehicles or equipment of the Borrower or any of the Restricted Subsidiaries granted in the
ordinary course of business;
(ff)
Liens on accounts receivable and related assets, incurred in connection with a Qualified Receivables
Facility;
(gg)
Liens securing obligations in respect of any overdraft and related liabilities arising from treasury,
depository and cash management services or any automated clearing house transfers of funds or in respect of any credit card or similar
services incurred in the ordinary course of business or consistent with past practice;
(hh)
Liens representing (i) any interest or title of a licensor, lessor or sublicensor or sublessor
under any lease or license permitted by this Agreement, (ii) any Lien or restriction that the interest or title of such lessor, licensor,
sublessor or sublicensor may be subject to, or (iii) the interest of a licensee, lessee, sublicensee or sublessee arising by virtue
of being granted a license or lease permitted by this Agreement;
(ii) Liens
granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of Intellectual Property to
secure the damages, if any, of such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(jj) utility
and similar deposits in the ordinary course of business;
(kk) Liens
securing any Hedging Obligations under any Hedging Agreement so long as the Fair Market Value of the Collateral securing such
Hedging Obligations does not exceed the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its
Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Lien is created, incurred, assumed or
suffered to exist (measured as such date) based upon the Section 9.1 Financials most recently delivered on or prior to such
date;
(ll) Liens arising in connection with rights of dissenting equityholders pursuant to Applicable Law in
respect of the Transactions; and
(mm)
Liens arising solely by virtue of any statutory or common law provision or from customary contractual provisions (such as
banks’ general terms and conditions) relating to banker’s liens, rights of set-off or similar rights.
For purposes of determining
compliance with this Section 10.2, (A) Lien need not be incurred solely by reference to one category of Liens permitted by this
Section 10.2 but are permitted to be incurred in part under any combination thereof and of any other available exemption, (B) in
the event that Lien (or any portion thereof) meets the criteria of one or more of the categories of Liens permitted by this Section 10.2,
the Borrower shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with
this definition and (C) in the event that a portion of Indebtedness or other obligations secured by a Lien could be classified as
secured in part pursuant to Section 10.2(bb) above (giving pro forma effect to the Incurrence of such portion of such Indebtedness
or other obligations), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect
thereof) as having been secured pursuant to Section 10.2(bb) above and thereafter the remainder of the Indebtedness or other obligations
as having been secured pursuant to one or more of the other clauses of this Section 10.2.
10.3 Limitation
on Fundamental Changes. Except as expressly permitted by Section 10.4, 10.5 or 10.6, the Borrower will not and will not permit
any of the Restricted Subsidiaries to, consummate any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or Dispose of all or substantially all of its business units, assets or other properties,
except that:
(a) any
Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the
Borrower or the Borrower may Dispose of all or substantially all of its business units, assets and other properties; provided
that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation
where the Borrower is not the continuing or surviving Person, the Person formed by or surviving any such merger, amalgamation or
consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s
assets, the transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the
United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may
be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the
Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to
a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger,
amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger,
amalgamation, consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.11,
no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger,
amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or
Disposition, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or
unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply
to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor,
unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the
Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor
Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to
such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment
to or restatement of the Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s
obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s
certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents
preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents,
(F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent
an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not breach or result in a
default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or Disposition shall
comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise
permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied, the
Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement
(provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or
property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in
Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such
Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any
Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one
or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its business
units, assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition
involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee
of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation,
consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary,
(ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, if the surviving
Person formed by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties is a Credit
Party, then any Indebtedness of any Subsidiary Guarantor assumed by such surviving Person or the transferee of such assets and properties
shall be deemed an Incurrence of Indebtedness upon completion of such transaction and such transaction shall be permitted only if such
Incurrence is permitted under Section 10.1 of this Agreement (without giving effect to Section 10.1(k)) and (iii) if such
merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such
merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) subject to Section 1.11,
no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation,
consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the
Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation,
consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantees and the perfection
and priority of the Liens under the Security Documents and (C) such merger, amalgamation, consolidation or Disposition shall comply
with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.4,
10.5 or 10.6;
(c) any
Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower;
(d) the
Transactions (including the Mergers) may be consummated;
(e) any
Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such
liquidation or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to
the Lenders and (y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.5
or Section 10.6, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by,
the Borrower or another Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form; and
(f) the
Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation, amalgamation or Disposition,
the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (other than 10.4(h)).
10.4 Limitation
on Sale of Assets. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, (i) convey,
sell, lease, assign, transfer, license or otherwise dispose of any of its property, business or assets (including receivables and including
pursuant to a Sale Leaseback), whether now owned or hereafter acquired (each, a “Disposition”) (other than any such
Disposition resulting from a Recovery Event), or (ii) sell to any Person (other than to the Borrower or a Restricted Subsidiary)
any shares owned by it of any of their respective Restricted Subsidiaries’ Capital Stock, except that:
(a) the
Borrower and the Restricted Subsidiaries may sell, lease, assign, transfer, license, abandon, allow the expiration or lapse of, or otherwise
Dispose of, the following: (i) obsolete, worn-out, damaged, uneconomic, no longer commercially desirable, used or surplus assets,
rights and properties and other assets, rights and properties that are held for sale or no longer used, useful or necessary for the operation
of the Borrower’s and its Subsidiaries’ business, (ii) inventory, equipment, service agreements, product sales, securities
and goods held for sale or other immaterial assets in the ordinary course of business, (iii) cash, Cash Equivalents and Investment
Grade Securities in the ordinary course of business (iv) books of business, client lists or related goodwill in connection
with the departure of related employees or producers in the ordinary course of business and (v) any such other assets or Capital
Stock to the extent that the aggregate Fair Market Value of such assets sold in any single transaction or series of related transactions
does not exceed the greater of (x) $1,500,000 and (y) 3% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries
for the Test Period most recently ended on or prior to the date such assets are Disposed (measured as of the date such assets are Disposed)
based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(b) the
Borrower and the Restricted Subsidiaries may (i) enter into non-exclusive licenses or non-exclusive sublicenses of Intellectual Property
including in connection with a research and development agreement in which the other party receives a non-exclusive license to Intellectual
Property that results from such agreement, (ii) exclusively license or exclusively sublicense Intellectual Property if done in the
ordinary course of business or consistent with past practice of the Borrower and its Restricted Subsidiaries and (iii) assign, lease,
sublease, license or sublicense any real or personal property or terminate or allow to lapse any such assignment, lease, sublease, license
or sublicense, other than any Intellectual Property, in the ordinary course of business;
(c) the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise Dispose of other assets for Fair Market Value; provided
that (i) with respect to any Disposition pursuant to this Section 10.4(c) for a purchase price in excess of the
greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test
Period most recently ended on or prior to the date such assets are Disposed (measured as of the date such assets are Disposed) based
upon the Section 9.1 Financials most recently delivered on or prior to such date, not less than 75% of the aggregate
consideration therefor from such Disposition and all other Dispositions made pursuant to this clause (c) since the Closing
Date, on a cumulative basis, received by the Borrower and its Restricted Subsidiaries, as the case may be, is in the form of cash or
Cash Equivalents; provided that, for purposes of determining what constitutes cash under this clause (i), (A) any
liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or
in the footnotes thereto or if accrued or incurred subsequent to the date of such balance sheets, such liabilities would have been
shown on the Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto as if such accrual or
incurrence had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the
Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the
Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the
Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash or Cash
Equivalents, (B) any securities, notes or other obligations received by the Borrower or such Restricted Subsidiary from such
transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash
or Cash Equivalents received) within 180 days following the closing of the applicable Disposition shall be deemed to be cash or Cash
Equivalents and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of
the applicable Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration
received pursuant to this clause (C) that is outstanding at the time such Designated Non-Cash Consideration is received, not in
excess of the greater of (x) $10,000,000 and (y) 20% of
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date
such assets are Disposed (measured as of the date such assets are Disposed) based upon the Section 9.1 Financials most recently
delivered on or prior to such date, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at
the time received and without giving effect to subsequent changes in value, shall be deemed to be cash or Cash Equivalents,
(ii) any non-cash proceeds received in the form of Indebtedness or Capital Stock are pledged to the Collateral Agent to the
extent required under Section 9.11, and (iii) to the extent applicable, the Net Cash Proceeds thereof are promptly offered
to prepay the Term Loans to the extent required by Section 5.2(a)(i);
(d) the
Borrower and the Restricted Subsidiaries may (i) Dispose of, discount, forgive or write off accounts receivable, notes receivable
or other current assets in the ordinary course of business or convert accounts receivable to notes receivable or make other Dispositions
of accounts receivable in connection with the compromise or collection thereof and (ii) sell or transfer accounts receivable so long
as the Net Cash Proceeds of any sale or transfer pursuant to this clause (ii) are offered to prepay the Term Loans pursuant to Section 5.2(a)(i);
(e) the
Borrower and the Restricted Subsidiaries may Dispose of properties, rights or assets (including the Disposition or issuance of Capital
Stock) to the Borrower or to a Restricted Subsidiary; provided that, if the transferor of such property, right or asset is the
Borrower or a Subsidiary Guarantor and the transferee thereof is a Restricted Subsidiary that is not a Subsidiary Guarantor, then the
Indebtedness of such transferor assumed by such transferee shall be deemed an Incurrence of Indebtedness upon completion of such transaction
and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 (without giving effect to Section 10.1(j));
(f) the
Borrower and the Restricted Subsidiaries may Dispose of property (including like- kind exchanges) to the extent that (i) such property
is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are
promptly applied to the purchase price of such replacement property;
(g) the
Borrower and the Restricted Subsidiaries may sell, transfer and otherwise Dispose of Investments in Joint Ventures to the extent required
by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in Joint Venture arrangements and
similar binding arrangements;
(h) the
Borrower and the Restricted Subsidiaries may effect any transaction permitted by Section 10.3, 10.5 or 10.6 and may create, incur,
assume or suffer to exist Liens permitted by Section 10.2;
(i) the
Borrower and the Restricted Subsidiary may transfer property subject to Recovery Events, including foreclosures, condemnation, expropriation,
forced disposition, eminent domain or any similar action with respect to assets;
(j) the
Borrower and the Restricted Subsidiaries may make Dispositions listed on Schedule 10.4 and Dispositions (i) of non-core or obsolete
assets acquired in connection with Acquisitions or other similar Investments that are not used or useful in, or are surplus to, the business
of the Borrower and the Restricted Subsidiaries and (ii) of other assets acquired in connection with Acquisitions or other similar
Investments permitted under this Agreement for Fair Market Value; provided that any such Dispositions referred to in this clause
(ii) shall be made or contractually committed to be made within 365 days of the date such assets were acquired by the Borrower or
such Restricted Subsidiary;
(k) the
Borrower and the Restricted Subsidiaries may unwind or terminate any Hedging Agreement or Cash Management Agreement and allow for the
expiration of any options agreement with respect to any Real Property or personal property;
(l) the
Borrower and the Restricted Subsidiaries may make Dispositions of residential Real Property and related assets in connection with relocation
activities for officers, managers, consultants, directors, employees or independent contractors (or their Immediate Family Members) of
Holdings (or any Parent Entity thereof or any Equityholding Vehicle), the Borrower and the Restricted Subsidiaries;
(m) the
Borrower and the Restricted Subsidiaries may issue directors’ qualifying shares and shares issued to foreign nationals, in each
case as required by Applicable Laws;
(n) the
Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower and
its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(o) the
Borrower and the Restricted Subsidiaries may allow the lapse of, abandon, cancel or cease to maintain or cease to enforce Intellectual
Property rights that are no longer (i) used, useful or necessary for the on-going business of the Borrower and its Restricted Subsidiaries,
(ii) economically practicable or commercially reasonable to maintain or (iii) in the best interest of or material for the operation
of the Borrower’s and the Restricted Subsidiaries’ businesses (including by allowing any registrations or any applications
for registration thereof to lapse), in each case in the ordinary course of business or consistent with past practice in the reasonable
business judgment of the Borrower;
(p) the
Borrower and the Restricted Subsidiaries may surrender, terminate or waive any contract rights or surrender, waive, settle, modify, compromise
or release any contract rights, litigation claims or any other claims of any kind (including in tort) in the ordinary course of business;
(q) the
Borrower and the Restricted Subsidiaries may make Dispositions or issuances of the Capital Stock in, Indebtedness of, or other securities
issued by, an Unrestricted Subsidiary;
(r) the
Borrower and the Restricted Subsidiaries may effect a Sale Leaseback (i) with respect to property that is acquired after the Closing
Date so long as such Sale Leaseback is consummated within 270 days of the acquisition of such property or (ii) if at the time the
lease in connection therewith is entered into, and after giving effect to the entering into of such lease, such lease is otherwise permitted
under this Agreement;
(s) the
Borrower may issue Qualified Capital Stock and, to the extent permitted by Section 10.1, Disqualified Capital Stock;
(t) the
Borrower and the Restricted Subsidiaries may make Dispositions (including those of the type otherwise described herein) after the Closing
Date in an aggregate amount not to exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for the Test Period most recently ended on or prior the date such assets are Disposed (measured as of such
date) based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(u) to
the extent allowable under Section 1031 of the Code or any comparable or successor provision, any exchange of like property (excluding
any boot thereon) for use in a Similar Business;
(v) sales
or transfers of accounts receivable, or participations therein and related assets, in connection with any Qualified Receivables Facility;
(w) sales
or dispositions of Capital Stock of any Foreign Subsidiary in order to qualify members of the governing body of such Subsidiary if required
by Applicable Law;
(x) samples,
including time-limited evaluation software, provided to customers or prospective customers;
(y) de minimis amounts of equipment provided to employees;
(z) the
Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with the Borrower or any
Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Capital Stock,
(iii) transfer any intercompany Indebtedness to the Borrower or any Restricted Subsidiary (subject to applicable subordination terms
if Indebtedness of a Credit Party is transferred to a non-Credit Party), (iv) settle, discount, write off, forgive or cancel any
intercompany Indebtedness or other obligation owing by Holdings, the Borrower or any Restricted Subsidiary, (v) settle, discount,
write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of any Parent
Entity, Holdings, the Borrower or any Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights
and settle or waive contractual or litigation claims; and
(aa) the
Borrower and the Restricted Subsidiaries may make Dispositions of any asset between or among the Borrower and/or its Restricted Subsidiaries
as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to clauses (a) through
(s) above.
10.5 Limitation
on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, make any Investment, except (each
of the following exceptions, the “Permitted Investments”):
(a) extensions
of trade credit, asset purchases (including purchases of inventory, Intellectual Property, supplies, materials or equipment or other
similar items), the lease or sublease of any asset and the licensing or sublicensing or contribution of Intellectual Property pursuant
to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
(b) Investments
in assets constituting, or at the time of making such Investments were, cash or Cash Equivalents;
(c) loans
and advances to officers, managers, directors, employees, consultants and independent contractors of Holdings (or any Parent Entity thereof),
the Borrower or any of its Restricted Subsidiaries (i) to finance the purchase of Capital Stock of Holdings (or any Parent Entity
thereof or any Equityholding Vehicle); provided that the amount of such loans and advances used to acquire such Capital Stock shall
be contributed to the Borrower in cash as common equity, (ii) for reasonable and customary business related travel expenses, entertainment
expenses, moving expenses and similar expenses or payroll expenses, in each case incurred in the ordinary course of business, and (iii) for
additional purposes not contemplated by subclause (i) or (ii) above; provided that, after giving pro forma effect to
the making of any such loan or advance, the aggregate principal amount of all loans and advances outstanding under this Section 10.5(c)(iii) shall
not exceed the greater of (x) $7,500,000 and (y) 15% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries
for the Test Period most recently ended on or prior to the date such Investment is made (measured as of such date) based upon the Section
9.1 Financials most recently delivered on or prior to such date;
(d) Investments
(i) existing on the Closing Date or (ii) contemplated on the Closing Date or made pursuant to binding agreements in effect
on the Closing Date and, in each case, listed on Schedule 10.5 and (iii) in the case of each of clauses (i) and (ii), any
modification, replacement, renewal, extension or reinvestment thereof, so long as the aggregate amount of all Investments pursuant
to this Section 10.5(d) is not increased at any time above the amount of such Investments or binding agreements existing
or contemplated on the Closing Date, except pursuant to the terms of such Investment or binding agreements existing or contemplated
as of the Closing Date (including as a result of the accrual or accretion of original issue discount or the issuance of
payment-in-kind obligations) or as otherwise permitted by this Section 10.5 or Section 10.6;
(e) Investments
in Hedging Agreements permitted by Section 10.1(i) and Cash Management Agreements permitted by Section 10.1;
(f) Investments
received (i) in connection with, or as a result of, any bankruptcy, workout, reorganization or recapitalization of suppliers, trade
creditors or customers or in settlement or compromise of delinquent obligations and disputes with, or judgments against, or other disputes
with, customers, trade creditors or suppliers, including pursuant to any plan of reorganization or similar arrangement upon bankruptcy
or insolvency of any customer, trade creditor or supplier, (ii) in satisfaction of judgments against other Persons, (iii) as
a result of the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment
or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Person who are
not Affiliates;
(g) Investments
to the extent that the payment for such Investments is made solely with the Capital Stock (other than Disqualified Capital Stock) of
Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower;
(h) Investments
constituting non-cash proceeds of sales, transfers and other Dispositions of assets to the extent permitted by Sections 10.3 and 10.4
(other than clause (h));
(i) (i) Investments
by or among the Borrower or any Restricted Subsidiary in the Borrower or any other Restricted Subsidiary (including guarantees of
obligations of any Restricted Subsidiary and any prepayments, repurchases, redemptions, defeasances, acquisitions and other similar
payments of any Indebtedness of any such Person not prohibited by Section 10.7) and (ii) Investments by the Borrower or
any Restricted Subsidiary in any Unrestricted Subsidiary or Joint Venture as valued at the Fair Market Value of such Investment at
the time each such Investment is made; provided that the aggregate amount of such Investment (as so valued) shall not exceed
the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the
Test Period most recently ended on or prior to the date such Investment is made (measured as of such date) based upon the Section
9.1 Financials most recently delivered on or prior to such date;
(j) Investments
consisting of advances, loans, rebates and extensions of credit in the nature of accounts receivable, notes receivable security deposits
and prepayments (including prepayments of expenses) arising and trade credit granted in the ordinary course of business or consistent
with past practice, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors
and other deposits, prepayments and other credits to suppliers in the ordinary course of business or consistent with past practice;
(k) the
Borrower may make a loan to Holdings (or any Parent Entity thereof or any Equityholding Vehicle) that could otherwise be made as a Restricted
Payment (other than a Restricted Investment) to Holdings (or any Parent Entity thereof or any Equityholding Vehicle) under Section 10.6,
so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause
of Section 10.6;
(l) Investments
in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary
trade arrangements with customers;
(m) advances
of payroll payments to employees, consultants or independent contractors or other advances of salaries or compensation to officers, managers,
employees, consultants or independent contractors, in each case in the ordinary course of business;
(n) Guarantees
by the Borrower or any Restricted Subsidiary of leases or subleases (other than Financing Lease Obligations), Contractual Obligations
or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(o) Investments
made to acquire, purchase, repurchase, redeem, acquire or retire Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding
Vehicle) or the Borrower owned by any employee stock ownership plan or key employee stock ownership plan of Holdings (or any Parent Entity
thereof or any Equityholding Vehicle) or the Borrower;
(p) Investments constituting Permitted Acquisitions;
(q) any
additional Investments (including Investments in Minority Investments, Investments in Unrestricted Subsidiaries and Investments
in Joint Ventures or similar entities that do not constitute Restricted Subsidiaries), as valued at the Fair Market Value of such Investment
at the time each such Investment is made; provided that the aggregate amount of such Investment (as so valued) shall not cause
the aggregate amount of all such Investments made pursuant to this Section 10.5(q) measured at the time such Investment is
made, to exceed, after giving pro forma effect to such Investment, the sum of (i) the greater of (x) $25,000,000 and (y) 50%
of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior the date such
Investment is made (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such
date, (ii) the Available Equity Amount at such time and (iii) the Available Amount at such time; provided, however,
that if any Investment pursuant to this Section 10.5(q) is made in any Person that is not a Restricted Subsidiary at the date
of the making of such Investment and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Borrower or a Restricted Subsidiary, in each case, after such date, such Investment shall thereafter be deemed to
have been made pursuant to Section 10.5(i)(i) above and shall cease to have been made pursuant to this Section 10.5(q) for
so long as such Person continues to be a Restricted Subsidiary;
(r) Investments arising as a result of Sale Leasebacks;
(s) Investments
held by any Person acquired by the Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged, consolidated or
amalgamated with or into the Borrower or merged, consolidated or amalgamated with or into a Restricted Subsidiary in accordance with Section 10.3
after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger,
consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(t) Investments
consisting of Indebtedness, fundamental changes, Dispositions, Restricted Payments (other than Restricted Investments) and debt payments
permitted under Sections 10.1, 10.3 (but only any lettered paragraphs thereof), 10.4 (other than 10.4(e) or 10.4(h) (as such
Section 10.4(h) relates to Section 10.5)), 10.6 (other than 10.6(c)(i)) and 10.7;
(u) the
forgiveness, capitalization or conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary
and permitted by Section 10.1;
(v) Restricted
Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the
requirements of Sections 9.10, 9.11 and 9.14, 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 permitted by this
Section 10.5, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger consideration
contributed to it contemporaneously with the closing of such transactions, such new Restricted Subsidiary shall not be required to
take the actions set forth in Sections 9.10, 9.11 and 9.14 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);
(w) Investments
consisting of earnest money deposits required in connection with purchase agreements or other Acquisitions;
(x) Investments
consisting of loans and advances to Holdings (or any Parent Entity or any Equityholding Vehicle) and its Subsidiaries in connection with
the reimbursement of expenses incurred on behalf of the Borrower and its Restricted Subsidiaries in the ordinary course of business;
(y) Investment
Grade Securities maturing no more than 24 months from the date of acquisition;
(z) 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 Borrower or any of its Restricted Subsidiaries;
(aa)
non-cash or non-Cash Equivalent Investments in connection with tax planning and reorganization activities; provided that,
after giving pro forma effect to any such activities, the Liens on the Collateral securing the Obligations would not be materially impaired;
(bb) loans and advances to customers in the ordinary course of business in respect of the payment of insurance premiums;
(cc)
any Investment made in connection with the Transactions, including the Mergers, the transactions set forth in the Acquisition Agreement
and any transactions in connection with the Existing Debt Refinancing;
(dd)
Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business;
(ee)
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 and sublicensees;
(ff) Capital
Expenditures permitted or not restricted under this Agreement;
(gg)
deposits in the ordinary course of business to secure the performance of Non-Financing Lease Obligations or utility contracts,
or in connection with obligations in respect of tenders, statutory obligations, surety, stay and appeal bonds, bids, licenses, leases,
government contracts, trade contracts, performance and return-of-money bonds, completion guarantees and other similar obligations (exclusive
of obligations for the payment of borrowed money) incurred in the ordinary course of business;
(hh)
Investments made in the ordinary course of business in connection with (i) obtaining, maintaining or renewing client and customer
contracts and (ii) loans or advances made to, and guarantees with respect to obligations of, independent operators, distributors,
suppliers, licensors, sublicensors, licensees and sublicensees.
(ii) additional
Investments so long as, subject to Section 1.11, (x) no Event of Default shall have occurred and be continuing or would result
therefrom and (y) after giving pro forma effect to such Investment, the Borrower and the Restricted Subsidiaries would be in compliance,
on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of
the Test Period most recently ended on or prior to the date of the making of such Investment, as if such Investment and any other transactions
being consummated in connection therewith occurred on the first day of such Test Period, of no greater than 4.75:1.00;
(jj) Investments in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant
to this Section 10.5(jj) that are at that time outstanding, not to exceed the greater of $15,000,000 and 30% of Consolidated EBITDA
of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date of such Investment (measured
as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date; provided, however,
that if any Investment pursuant to this Section 10.5(jj) is made in any Person that is not a Restricted Subsidiary at the date of
the making of such Investment and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated
into, the Borrower or a Restricted Subsidiary, in each case, after such date, such investment shall thereafter be deemed to have been
made pursuant to Section 10.5(i) above and shall cease to have been made pursuant to this Section 10.5(jj) for so long
as such Person continues to be a Restricted Subsidiary;
(kk)
to the extent not required to be applied
to prepay the Term Loans in accordance with Section 5.2(a)(i), Investments made in accordance with clause (v) of the definition
of “Net Cash Proceeds” with the proceeds received in connection with a Recovery Prepayment Event;
(ll)
Investments resulting from pledges and deposits permitted by Sections 10.2(a)(i), 10.2(b) (with
respect to clause (d) of the definition of “Permitted Encumbrances”) and 10.1(n);
(mm) any Investment in any Subsidiary or any Joint Venture in connection with intercompany cash management
arrangements or related activities arising in the ordinary course of business or consistent with past practice;
(nn)
Investments in deposit accounts and securities accounts in the ordinary course of business;
(oo)
Investments solely to the extent such Investments reflect an increase in the value of Investments
otherwise permitted under this Section 10.5;
(pp)
the acquisition of additional Capital Stock of Restricted Subsidiaries from minority equityholders
(it being understood that to the extent that any Restricted Subsidiary that is not a Credit Party is acquiring Capital Stock from minority
equityholders, then this clause (pp) shall not in and of itself create, or increase the capacity under, any basket for Investments by
Credit Parties in any Restricted Subsidiary that is not a Credit Party);
(qq)
Investments in Capital Stock in any Subsidiary resulting
from any sale, transfer or other Disposition by the Borrower or any Subsidiary permitted by Section 10.4, including as a result
of any contribution from any Parent Entity or distribution to any Subsidiary of such Capital Stock;
(rr)
Term Loans repurchased by the
Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with this Agreement;
(ss)
Guarantee obligations of the 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 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;
(tt)
Investments in any Receivables Subsidiary that, in the good faith determination of the Borrower are
necessary or advisable to effect any Qualified Receivables Facility or any repurchase obligation in connection therewith;
(uu)
additional Investments in an aggregate amount not to exceed the portion, if any, of the Restricted
Payment Amount, on the relevant date of determination that the Borrower elects to apply pursuant to this clause (uu); and
(vv)
Acquisitions by the Borrower of obligations of one or more directors, officers, employees, member
or management or consultants of Holdings, the Borrower or its Subsidiaries in connection with such Person’s acquisition of Capital
Stock of any Parent Entity or Equityholding Vehicle, so long as no cash is actually advanced by the Borrower or any of its Subsidiaries
to such Person in connection with the acquisition of any such obligations.
10.6 Limitation
on Restricted Payments. The Borrower will not pay any dividends (other than dividends payable solely in the Qualified Capital Stock
of the Borrower) or return any capital to its equity holders or make any other distribution, payment or delivery of property or cash to
its equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of
any class of its Capital Stock or the Capital Stock of any Parent Entity or any Equityholding Vehicle now or hereafter outstanding (or
any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds
for any of the foregoing purposes (but excluding, in each case, the payment of compensation in the ordinary course of business to equity
holders of any such Capital Stock who are employees of the Borrower or any Restricted Subsidiary), or permit the Borrower or any of the
Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5)
any shares of any class of the Capital Stock of any Parent Entity of the Borrower or any Equityholding Vehicle or the Capital Stock of
the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to
any of the Capital Stock of any Parent Entity of the Borrower or any Equityholding Vehicle or the Capital Stock of the Borrower) or make
any Restricted Investment (all of the foregoing, “Restricted Payments”); provided that:
(a) (i) the
Borrower may (or may pay Restricted Payments to permit any Parent Entity thereof or any Equityholding Vehicle to) redeem, repurchase,
retire or otherwise acquire in whole or in part any Capital Stock (“Treasury Capital Stock”) of the Borrower or any
Restricted Subsidiary or any Capital Stock of any Parent Entity or Equityholding Vehicle, in exchange for another class of Capital Stock
or rights to acquire its Capital Stock or with proceeds from equity contributions or sales or issuances (other than to the Borrower or
a Restricted Subsidiary) of new shares of such Capital Stock to the extent contributed to the Borrower (in each case other than Disqualified
Capital Stock, “Refunding Capital Stock”) substantially concurrently with such contribution or sale or issuance; provided
that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such Refunding Capital Stock
are at least as advantageous to the Lenders as those contained in the Capital Stock redeemed thereby and (ii) the Borrower, and any
Restricted Subsidiary may pay Restricted Payments payable solely in the Capital Stock (other than Disqualified Capital Stock not otherwise
permitted by Section 10.1) of such Person;
(b) so
long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may redeem, acquire, retire or
repurchase (and the Borrower may declare and pay Restricted Payments to any Parent Entity thereof or any Equityholding Vehicle, the
proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or
equity appreciation or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s
Parent Entities or any Equityholding Vehicle to so redeem, retire, acquire or repurchase their Capital Stock (or any options or
warrants or equity appreciation or similar rights issued with respect to any of its Capital Stock)) held by future, current or
former officers, managers, consultants, directors, employees and independent contractors (or their respective Controlled Investment
Affiliates or Immediate Family Members) of any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the
Subsidiaries of the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in
accordance with any equity option or equity appreciation or similar rights plan, any management, director and/or employee equity
ownership or incentive plan, equity subscription plan or subscription agreement, employment termination agreement or any other
employment agreements or equity holders’ agreement (including, for the avoidance of doubt, any principal or interest payable
on any Indebtedness Incurred by the Borrower or any Parent Entity or Equityholding Vehicle in connection with any such redemption,
acquisition, retirement or repurchase); provided that, except with respect to non-discretionary repurchases, acquisitions,
retirements or redemptions pursuant to the terms of any equity option or equity appreciation rights plan, any management, director
and/or employee equity ownership or incentive plan, equity subscription plan or subscription agreement, employment termination
agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of
all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of
such Capital Stock) so redeemed, acquired, retired or repurchased, does not exceed the sum of (i) $10,000,000 in any calendar
year (which shall increase to $20,000,000 in any calendar year following the consummation of a Qualifying IPO); notwithstanding the
foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving pro forma effect to
any carry forward) may be carried forward to succeeding calendar years and utilized to make payments pursuant to this
Section 10.6(b) plus (ii) all proceeds obtained by any Parent Entity or any Equityholding Vehicle (and
contributed to the Borrower) or the Borrower after the Closing Date from the sale of such Capital Stock to other future, current or
former officers, managers, consultants, employees, directors and independent contractors (or their respective Controlled Investment
Affiliates or Immediate Family Members) in connection with any plan or agreement referred to above in this clause
(b) plus (iii) all Net Cash Proceeds obtained from any key-man life insurance policies received by the Borrower (or
any Parent Entity or Equityholding Vehicle to the extent contributed to the Borrower) after the Closing Date less
(iv) the amount of any previous Restricted Payment made pursuant to clauses (ii) and (iii) of this
Section 10.6(b); and provided, further, that, the cancellation of Indebtedness owing to the Borrower or any
Restricted Subsidiary from any future, current or former employees, officers, managers, directors, consultants or independent
contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent Entity of the Borrower,
any Equityholding Vehicle, Holdings or any of the Restricted Subsidiaries in connection with a redemption, acquisition, retirement
or repurchase of its Capital Stock will not be deemed to constitute a Restricted Payment for purposes of this Agreement; provided
that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to
this Section 10.6(b) shall reduce the amounts available pursuant to this Section 10.6(b);
(c) (i) to
the extent constituting Restricted Payments, (other than Restricted Investments), the Borrower and any Restricted Subsidiary may make
Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Restricted Payments to the Borrower and
to Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and
any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests);
(d) to
the extent constituting Restricted Payments, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly
permitted by any provision of Section 10.3 and 10.4 (other than 10.4(h)), and the Borrower may pay Restricted Payments to any Parent
Entity thereof or any Equityholding Vehicle as and when necessary to enable such Parent Entity or Equityholding Vehicle to effect the
transactions permitted by such section;
(e) the
Borrower may redeem, acquire, retire or repurchase Capital Stock of any Parent Entity or any Equityholding Vehicle of the Borrower or
the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion
of the exercise price of such options or warrants, and the Borrower may pay Restricted Payments to a Parent Entity or Equityholding Vehicle
thereof as and when necessary to enable such Parent Entity or Equityholding Vehicle to effect such repurchases;
(f) in
addition to the foregoing Restricted Payments (i) the Borrower may make additional Restricted Payments, so long as (x) no
Event of Default shall have occurred and be continuing or would result therefrom and (y) after giving pro forma effect to such
Restricted Payment, the Borrower would be in compliance, on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA
Ratio, calculated as of the last day of the Test Period most recently ended on or prior to the date of payment of such Restricted
Payment, as if such Restricted Payment and any other transactions being consummated in connection therewith occurred on the first
day of such Test Period, of no greater than 4.25:1.00, (ii) the Borrower may make additional Restricted Payments in an
aggregate amount not to exceed an amount equal to the Available Amount at the time such Restricted Payment is paid, so long as no
Event of Default shall have occurred and be continuing or would result therefrom, (iii) the Borrower may make additional
Restricted Payments in an aggregate amount not to exceed an amount equal to the Available Equity Amount at the time such Restricted
Payment is paid and (iv) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the
Borrower may make additional Restricted Payments in an aggregate amount not to exceed the portion, if any, of the Restricted Payment
Amount, on the relevant date of determination, that the Borrower elects to apply pursuant to this clause (iv); provided that
any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to this
Section 10.6(f) shall reduce the amounts available pursuant to this Section 10.6(f);
(g) the
Borrower may make and pay Restricted Payments:
(i) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower to pay) any tax liability
in respect of income attributable to Holdings, the Borrower and its Subsidiaries, but not in excess of the tax liability that Holdings
and/or the Borrower would incur if it filed tax returns as the parent of a consolidated, combined, unitary or aggregate group for itself
and its Subsidiaries (and net of any payment already made and to be made by the Borrower to a taxing authority to satisfy such tax liability);
provided that a Restricted Payment attributable to any taxes attributable to an Unrestricted Subsidiary shall be permitted only
to the extent such Unrestricted Subsidiary distributed cash to the Borrower or its Restricted Subsidiaries;
(ii) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any Equityholding
Vehicle to pay) its operating expenses incurred in the ordinary course (including related to maintenance of organizational existence),
general administrative costs and other overhead costs and expenses (including administrative, legal, accounting, professional and similar
fees and expenses provided by third parties, including the Borrower’s proportionate share of such amount relating to such Parent
Entity being a Public Company), plus any indemnification claims made by employees, managers, consultants, independent contractors,
directors or officers of any Parent Entity of the Borrower or any Equityholding Vehicle;
(iii) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any Equityholding
Vehicle to pay) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, required to maintain its (or any
of its Parent Entities’ or Equityholding Vehicles’) corporate or other legal existence;
(iv) the
proceeds of which shall be used to make Investments contemplated by Section 10.5(c);
(v) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any Equityholding
Vehicle to pay) fees and expenses (other than to Affiliates of the Borrower) related to any successful or unsuccessful equity issuance
or offering or Incurrence of Indebtedness, Refinancing, Disposition or acquisition or Investment transaction permitted by this Agreement;
(vi) to
the extent not constituting a Restricted Investment, the proceeds of which shall be used to finance Investments that would otherwise
be permitted to be made pursuant to Section 10.5 or as a Restricted Investment pursuant to Section 10.6 if made by the
Borrower or a Restricted Subsidiary; provided that (i) such Restricted Payment shall be made substantially concurrently
with the closing of such Investment, (ii) such Parent Entity shall, immediately following the closing thereof, cause
(A) all property acquired (whether assets or Capital Stock) to be contributed to the capital of the Borrower or one of the
Restricted Subsidiaries or (B) the merger, consolidation or amalgamation of the Person formed or acquired with or into the
Borrower or one of the Restricted Subsidiaries (to the extent not prohibited by Section 10.3) in order to consummate such
Investment and (iii) such Parent Entity and its Affiliates (other than the Borrower or a Restricted Subsidiary) receives no
consideration or other payment in connection with such transaction except to the extent the Borrower or a Restricted Subsidiary
could have otherwise given such consideration or made such payment in compliance with this Agreement; and
(vii) the
proceeds of which shall be used to pay customary salary, bonus, severance and other benefits payable to directors, officers, managers,
employees, consultants or independent contractors of any Parent Entity of the Borrower or any Equityholding Vehicle to the extent such
salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, including
the Borrower’s proportionate share of such amount relating to such Parent Entity being a Public Company;
(h) the
Borrower may (or may make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to) (i) pay cash in lieu of
fractional shares in connection with any Restricted Payment (including in connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Capital Stock), share split, reverse share split or combination thereof or any Acquisition or other
similar Investment and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of
fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the
Borrower may pay (or may make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to pay) Restricted Payments
in an amount equal to withholding or similar taxes payable or expected to be payable by any future, current or former employee, director,
manager, consultant or independent contractor (or any of their respective Immediate Family Members) of any Parent Entity of the Borrower,
any Equityholding Vehicle, the Borrower or any Subsidiary of the Borrower in connection with the exercise or vesting of Capital Stock
or other equity awards or any repurchases, redemptions, acquisitions, retirements or withholdings of Capital Stock in connection with
any exercise of Capital Stock or other equity options or warrants or the vesting of Capital Stock or other equity awards if such Capital
Stock represent all or a portion of the exercise price of, or withholding obligation with respect to, such options or, warrants or other
Capital Stock or equity awards;
(j) the
Borrower may make payments (or make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to make such payments)
described in Sections 10.11(c), (e), (h), (i), (j), (l) and (s) (subject to the conditions set out therein);
(k) the
Borrower may make Restricted Payments and distributions within sixty (60) days after the date of declaration thereof, if at the date of
declaration of such payment, such payment would have complied with the other provisions of this Section 10.6;
(l) so
long as no Event of Default is continuing or would result therefrom, after a Qualifying IPO, the Borrower may make Restricted Payments
to any Parent Entity of the Borrower or any Equityholding Vehicle so that such Parent Entity or Equityholding Vehicle can make Restricted
Payments to its equity holders in an aggregate per annum amount not exceeding 6.0% of the Net Cash Proceeds of such Qualifying IPO; provided
that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to this
Section 10.6(l) shall reduce the amounts available pursuant to this Section 10.6(l);
(m) the
Borrower and any Restricted Subsidiary may pay and make any Restricted Payment in connection with (i) the Transactions or Restricted
Payments necessary to consummate the Transactions, including (A) in respect of any payments required to be made after the Closing
Date in connection with, or necessary to consummate, the Transactions (including, for the avoidance of doubt, and to the extent constituting
a Restricted Payment, payments in respect of the 2017 Contingent Value Rights, the Deferred Blocker Consideration and the Deferred Company
Consideration), (B) the payment of the Transaction Expenses related thereto or used to fund amounts owed to Affiliates (including
those made to any Parent Entity of the Borrower or Equityholding Vehicle to permit payment by such Parent Entity or Equityholding Vehicle),
(C) in respect of working capital adjustments or purchase price adjustments or to satisfy indemnity and other similar obligations,
in each case as set forth in the Acquisition Agreement, (D) to holders
of restricted stock, restricted stock units or similar equity awards and (E) to dissenting equityholders in connection with, or
as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential)
with respect thereto (including any accrued interest) in connection with the Transactions or any other Acquisition or other similar Investment,
(ii) working capital adjustments or purchase price adjustments in connection with any Acquisition or other similar Investment and
(iii) the satisfaction of indemnity and other similar obligations in connection with any Acquisition or other similar Investment;
provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available
pursuant to this Section 10.6(m) shall reduce the amounts available pursuant to this Section 10.6(m);
(n) the
Borrower may make payments made to optionholders or holders of profits interests of the Borrower or any Parent Entity or any Equityholding
Vehicle in connection with, or as a result of, any distribution being made to shareholders of the Borrower or any Parent Entity or any
Equityholding Vehicle (to the extent such distribution is otherwise permitted hereunder), which payments are being made to compensate
such optionholders or holders of profits interests as though they were shareholders at the time of, and entitled to share in, such distribution
(it being understood that no such payment may be made to an optionholder or holder of profits interests pursuant to this clause to the
extent such payment would not have been permitted to be made to such optionholder or holder of profits interests if it were a shareholder
pursuant to any other paragraph of this Section 10.6, and any payment hereunder shall reduce payments available under such other
paragraph);
(o) the
Borrower may pay Restricted Payments to pay for the redemption, acquisition, retirement or repurchase, in each case for nominal value,
of Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower from a former investor of a
business acquired in an Acquisition or other similar Investment or a current or former employee, officer, director, manager or consultant
of a business acquired in an Acquisition or other similar Investment (or their Controlled Investment Affiliates or Immediate Family Members),
which Capital Stock was issued as part of an earn-out or similar arrangement in the acquisition of such business, and which redemption,
acquisition, retirement or repurchase relates the failure of such earn-out to fully vest;
(p) the
Borrower may make distributions, by Restricted Payment or otherwise, or other transfer or Disposition of shares of Capital Stock of Unrestricted
Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are Cash Equivalents); and
(q) the
Borrower may make payments or distributions to satisfy dissenters’ rights pursuant to or in connection with an acquisition, merger,
consolidation, amalgamation or transfer of assets that complies with Section 10.3;
(r) Holdings
may make Restricted Payments constituting interest payments on Disqualified Capital Stock, to the extent such Disqualified Capital Stock
constitutes Indebtedness, was Incurred in compliance with Section 10.1 and such Restricted Payments are included in the calculation
of Consolidated Interest Expense;
(s) the
Borrower may make Restricted Payments in an aggregate amount that does not exceed the aggregate amount of Excluded Contributions
received since the Closing Date (not otherwise building Available Equity Amount or constituting a Cure Amount or used to
incur Indebtedness); provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the
unused amounts available pursuant to this Section 10.6(s) shall reduce the amounts available pursuant to this
Section 10.6(s);
(t) the
Borrower may make distributions or payments of Receivables Fees and purchases of Receivables in connection with any Qualified Receivables
Facility or any repurchase obligation in connection therewith;
(u) the
Restricted Subsidiaries may make Restricted Payments in connection with the acquisition of additional Capital Stock in any Restricted
Subsidiary from minority equityholders; and
(v) so
long as no Event of Default is continuing or would result therefrom, after a Qualifying IPO, the Borrower may make Restricted Payments
to any Parent Entity of the Borrower or any Equityholding Vehicle so that such Parent Entity or Equityholding Vehicle can make Restricted
Payments to its equity holders in an aggregate per annum amount not exceeding 7.0% of the Market Capitalization; provided that
any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to this Section 10.6(w) shall
reduce the amounts available pursuant to this Section 10.6(w).
The amount of all Restricted
Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the assets or securities proposed to
be transferred or issued by the Borrower or any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. For the
avoidance of doubt, this Section 10.6 shall not restrict the making of any AHYDO Catch-Up Payment with respect to, and required by
the terms of, any Indebtedness of the Borrower or any of the Restricted Subsidiaries permitted to be incurred under the terms of this
Agreement. Indebtedness Incurred under Section 10.1(q) shall reduce availability under this Section 10.6 in an amount equal
to the aggregate principal amount incurred from time to time under Section 10.1(q), whether or not outstanding, except in respect
of amounts forgiven or cancelled without payment being made.
10.7 Limitations on Debt Payments and Amendments.
(a) The
Borrower will not, and will not permit any of the Restricted Subsidiaries to, prepay, repurchase, redeem or otherwise defease or
make similar payments in respect of any Junior Debt prior to its stated maturity (it being understood that payments of regularly
scheduled interest, fees, expenses, indemnification obligations and, so long as no Event of Default under Section 11.1 or 11.5
is continuing or would result therefrom, AHYDO Catch-Up Payments shall be permitted); provided, however, the Borrower
or any Restricted Subsidiary may prepay, repurchase, redeem, defease, acquire or otherwise make payments on any such Indebtedness
(i) with the proceeds of any Permitted Refinancing Indebtedness in respect of such Indebtedness, (ii) by converting or
exchanging any such Indebtedness to Capital Stock of Holdings or any of its Parent Entities and (iii) (A) so long as
(x) no Event of Default has occurred and is continuing or would result therefrom and (y) after giving pro forma effect to
such prepayment, repurchase, redemption, defeasance, acquisition or other payment, the Borrower would be in compliance, on a pro
forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most
recently ended on or prior to the date of any such payment, as if such prepayment, repurchase, redemption, defeasance, acquisition
or other payment and any other transactions being consummated in connection therewith occurred on the first day of such Test Period,
of no greater than 4.25:1.00 after giving pro forma effect thereto, (B) in an aggregate amount not to exceed the Available
Amount at the time of such prepayment, repurchase, redemption, defeasance, acquisition or other payment, so long as no Event of
Default has occurred and is continuing or would result therefrom, (C) in an aggregate amount not to exceed the Available Equity
Amount at the time of such prepayment, redemption, repurchase, defeasance, acquisition or other payment, (D) in an aggregate
amount not to exceed the portion, if any, of the Restricted Payment Amount, on the relevant date of determination that the Borrower
elects to apply pursuant to this clause (D), (E) any purchase, repurchase, redemption, defeasance or other acquisition or
retirement of Junior Debt Incurred pursuant to Section 10.1(j) (other than Indebtedness Incurred (I) to provide all
or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person
became a Restricted Subsidiary or was otherwise acquired by the Borrower or a Restricted Subsidiary or (II) otherwise in
connection with or contemplation of such acquisition), so long as such purchase, repurchase, redemption, defeasance or other
acquisition or similar payment is made or deposited with a trustee or other similar representative of the holders of such Junior
Debt contemporaneously with, or substantially simultaneously with, the closing of the Acquisition under which such Junior Debt is
Incurred, (F) any mandatory redemption, repurchase, retirement, termination or cancellation of Disqualified Capital Stock (to
the extent such Disqualified Capital Stock constitutes Indebtedness and was Incurred in compliance with Section 10.1,
(G) [reserved] and (H) the payment, redemption, repurchase, retirement, termination or cancellation of Indebtedness within
60 days of the date of the Redemption Notice if, at the date of any payment, redemption, repurchase, retirement, termination or
cancellation notice in respect thereof (the “Redemption Notice”), such payment, redemption, repurchase,
retirement termination or cancellation would have complied with another provision of this Section 10.7(a); provided that
such payment, redemption, repurchase, retirement termination or cancellation shall reduce capacity under such other provision.
Notwithstanding the foregoing
and for the avoidance of doubt, nothing in this Section 10.7 shall prohibit (i) the repayment, prepayment, repurchase, redemption
or other payment of intercompany subordinated Indebtedness owed among the Borrower and/or the Restricted Subsidiaries, in either case
unless an Event of Default has occurred and is continuing and the Borrower has received a notice from the Collateral Agent instructing
it not to make or permit the Borrower and/or the Restricted Subsidiaries to make any such repayment or prepayment or (ii) substantially
concurrent transfers of credit positions in connection with intercompany debt restructurings so long as such Indebtedness is permitted
by Section 10.1 after giving pro forma effect to such transfer.
(b) The
Borrower will not, and will not permit any of the Restricted Subsidiaries to, waive, amend or modify any term or condition in any Subordinated
Indebtedness Documentation (or, in each case, any documentation governing any Permitted Refinancing Indebtedness in respect thereof)
to the extent that any such waiver, amendment or modification, taken as a whole, would be materially adverse to the interests of the
Lenders.
10.8 Negative
Pledge Clauses. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into or permit to exist any
Contractual Obligation (other than this Agreement, any other Credit Document, any Permitted Additional Debt Documents related to any secured
Permitted Additional Debt or any document governing any secured Credit Agreement Refinancing Indebtedness and any documentation governing
any Permitted Refinancing Indebtedness Incurred to Refinance any such Indebtedness) that limits the ability of the Borrower or any Guarantor
to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties with respect to the
Obligations or under the Credit Documents; provided that the foregoing shall not apply to Contractual Obligations that in any material
respect:
(i) (x) exist
on the Closing Date and (to the extent not otherwise permitted by this Section 10.8) are listed on Schedule 10.8 hereto and (y) to
the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness or other obligations,
are set forth in any agreement evidencing any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness or obligation
so long as such Permitted Refinancing Indebtedness does not materially expand the scope of such Contractual Obligation (as determined
in good faith by the Borrower),
(ii) are
binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Borrower, so long
as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower,
(iii) represent
Indebtedness of a Restricted Subsidiary of the Borrower that is not a Credit Party to the extent such Indebtedness is permitted by Section 10.1,
(iv) arise
pursuant to agreements entered into with respect to any sale, transfer, lease, license or other Disposition permitted by Section 10.4,
including customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been entered into for
the sale, transfer, lease, license or other Disposition of the Capital Stock of such Subsidiary, and applicable solely to assets under
such sale, transfer, lease, license or other Disposition,
(v) are
customary provisions in Joint Venture agreements, partnership agreements, limited liability company organizational governance document,
and other similar agreements applicable to partnerships, limited liability companies, Joint Ventures and similar Persons permitted by
Section 10.5 or Section 10.6 and applicable solely to such Persons or the transfer of ownership therein,
(vi) are
negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 10.1, but solely to the
extent any negative pledge relates to the property financed by or the subject of such Indebtedness,
(vii) are
customary restrictions on leases, subleases, service agreements, product sales, licenses and sublicenses (including with respect to Intellectual
Property) or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto,
(viii) comprise
restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 10.1 to the extent that such
restrictions apply only to the specific property or assets securing such Indebtedness,
(ix) are
customary provisions restricting subletting or assignment or transfers of any lease governing a leasehold interest of the Borrower or
any Restricted Subsidiary,
(x) are
customary provisions restricting assignment of any agreement (or the assets subject thereto) entered into in the ordinary course of business,
(xi) are
restrictions on cash or other deposits or net worth imposed (including by customers) under agreements entered into in the ordinary course
of business,
(xii) are imposed by Applicable Law,
(xiii) are
customary net worth provisions contained in real property leases entered into by Subsidiaries of the Borrower, so long as the Borrower
has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Borrower and
its Subsidiaries to meet their ongoing obligation;
(xiv) comprise
restrictions imposed by any agreement governing Indebtedness entered into after the Closing Date and permitted under Section 10.1
that are, taken as a whole, in the good-faith judgment of the Borrower, no more restrictive with respect to the Borrower or any Restricted
Subsidiary than customary market terms for Indebtedness of such type (and, in any event, are no more restrictive than the restrictions
contained in this Agreement), so long as the Borrower shall have determined in good faith that such restrictions will not materially impair
its obligation or ability to make any payments required hereunder,
(xv) arise
in connection with purchase money obligations for property acquired in the ordinary course of business or Financing Lease Obligations;
(xvi) arise
in connection with any agreement or other instrument of a Person or relating to Indebtedness or Capital Stock of a Person, which Person
is acquired by or merged, consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries, or any other transaction
is entered into with any such Acquisition, merger, consolidation or amalgamation, in existence at the time of such Acquisition or at the
time it merges, consolidates or amalgamates with or into the Borrower or any of its Restricted Subsidiaries or assumed in connection with
the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or
the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired or redesignated;
(xvii) are
restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement
to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that
such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are the subject
to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of
the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xviii) are
provisions restricting the granting of a security interest in Intellectual Property contained in licenses or sublicenses by the Borrower
and its Restricted Subsidiaries of such Intellectual Property, which licenses and sublicenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such Intellectual Property);
(xix) arise
in connection with cash or other deposits imposed by agreement permitted under Section 10.2, Section 10.5 or Section 10.6
entered into in the ordinary course of business;
(xx) 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 or
restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property
of such Subsidiary;
(xxi) restrictions
created in connection with any Qualified Receivables Facility that, in the good faith determination of the Borrower, are necessary or
advisable to effect such Qualified Receivables Facility; and
(xxii) are
any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xxi) of this Section 10.8;
provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings
are, in the good-faith judgment of the Borrower, no more restrictive in any material respect with respect to such encumbrance and other
restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.
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10.9
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Passive Holding Company; Etc.
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(a) Holdings
will not conduct, transact or otherwise engage in any material business or material operations other than (i) the ownership
and/or acquisition of the Capital Stock (other than Disqualified Capital Stock) of the Borrower, (ii) the maintenance of its
legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (iii) to the extent
applicable, participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and
the Borrower, (iv) the performance of its obligations under and in connection with the Credit Documents and any documents
relating to other Indebtedness permitted under Section 10.1, (v) any public offering of its Capital Stock or any other
issuance or registration of its Capital Stock for sale or resale not prohibited by Section 10, including the costs, fees and
expenses related thereto, (vi) any transaction that Holdings is permitted to enter into or consummate under this
Section 10 and any transaction between Holdings and the Borrower or any Restricted Subsidiary permitted under this
Section 10, including (a) making any dividend or distribution or other transaction similar to a Restricted Payment (other
than a Restricted Investment) not prohibited by Section 10.6 (or the making of a loan to its Parent Entities or any
Equityholding Vehicle in lieu of any such Restricted Payment (other than a Restricted Investment) or distribution or other
transaction similar to a Restricted Payment (other than a Restricted Investment)) or holding any cash received in connection with
Restricted Payments (other than Restricted Investments) made by the Borrower in accordance with Section 10.6 pending
application thereof by Holdings in the manner contemplated by Section 10.6 (including the redemption in whole or in part of any
of its Capital Stock (other than Disqualified Capital Stock) in exchange for another class of Capital Stock (other than Disqualified
Capital Stock) or rights to acquire its Capital Stock (other than Disqualified Capital Stock) or with proceeds from substantially
concurrent equity contributions or issuances of new shares of its Capital Stock (other than Disqualified Capital Stock)),
(b) making any Investment to the extent (1) payment therefor is made solely with the Capital Stock of Holdings (other than
Disqualified Capital Stock), the proceeds of Restricted Payments (other than Restricted Investments) received from the Borrower
and/or proceeds of the issuance of, or contribution in respect of the, Capital Stock (other than Disqualified Capital Stock) of
Holdings and (2) any property (including Capital Stock) acquired in connection therewith is contributed to the Borrower or a
Subsidiary Guarantor (or, if otherwise permitted by Section 10.5 or Section 10.6, a Restricted Subsidiary) or the Person
formed or acquired in connection therewith is merged with the Borrower or a Restricted Subsidiary and (c) the
(w) provision of guarantees in the ordinary course of business in respect of obligations of the Borrower or any of its
Subsidiaries to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners; provided, for the
avoidance of doubt, that such guarantees shall not be in respect of debt for borrowed money, (x) Incurrence of Indebtedness of
Holdings contemplated by Sections 10.1(p) and 10.1(q), (y) Incurrence of guarantees and the performance of its other
obligations in respect of Indebtedness Incurred pursuant to Sections 10.1(a), 10.1(k) and 10.1(s) and Permitted Additional
Debt Incurred pursuant to Section 10.1(u) and (z) granting of Liens to the extent the Indebtedness contemplated by
subclause (y) is permitted to be secured under Sections 10.2(a), 10.2(u) and 10.2(bb), (vii) incurring fees, costs
and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying
taxes, (viii) providing indemnification to officers and directors and as otherwise permitted in Section 10,
(ix) activities incidental to the consummation of the Transactions, (x) organizational activities incidental to
Acquisitions or similar Investments consummated by the Borrower, including the formation of acquisition vehicle entities and
intercompany loans and/or investments incidental to such Acquisitions or similar Investments in each case consummated substantially
contemporaneously with the consummation of the applicable Acquisitions or similar Investments; provided that in no event
shall any such activities include the incurrence of a Lien on any of the assets of Holdings, (xi) the making of any loan to any
officers or directors contemplated by Section 10.5, the making of any Investment in the Borrower or any Subsidiary Guarantor
or, to the extent otherwise allowed under Section 10.5 or Section 10.6, a Restricted Subsidiary and (xii) activities
incidental to the businesses or activities described in clauses (i) to (xi) of this Section 10.9.
(b) Except
in connection with the Transactions, Holdings will not consummate any merger, consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its assets and other
properties, except that Holdings may merge, amalgamate or consolidate with or into any other Person (other than the Borrower) or, in
connection with a Qualifying IPO, liquidate into the issuing entity, or otherwise Dispose of all or substantially all of its assets
and property; provided that (i) Holdings shall be the continuing or surviving Person or, in the case of a merger,
amalgamation or consolidation where Holdings is not the continuing or surviving Person or where Holdings has been liquidated, or in
connection with a Disposition of all or substantially all of its assets, the Person formed by or surviving any such merger,
amalgamation or consolidation or the Person into which Holdings has been liquidated or to which Holdings has transferred such assets
shall, in each case, be an entity organized or existing under the laws of the United States, any state thereof, the District of
Columbia or any territory thereof (Holdings or such Person, as the case may be, being herein referred to as the “Successor
Holdings”), (ii) the Successor Holdings (if other than Holdings) shall expressly assume all the obligations of
Holdings under this Agreement and the other applicable Credit Documents pursuant to a supplement hereto or thereto in form
reasonably satisfactory to the Administrative Agent, (iii) each Subsidiary Guarantor, unless it is the other party to such
merger, amalgamation, consolidation, liquidation or Disposition or unless the Successor Holdings is Holdings, shall have by a
supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Holdings’ obligations under this
Agreement, (iv) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation,
consolidation, liquidation or Disposition or unless the Successor Holdings is Holdings, shall have by a supplement to the applicable
Credit Documents confirmed that its obligations thereunder shall apply to the Successor Holdings’ obligations under this
Agreement, (v) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation,
consolidation, liquidation or Disposition or unless the Successor Holdings is Holdings, shall have by an amendment to or restatement
of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Holdings’ obligations under
this Agreement, (vi) Holdings shall have delivered to the Administrative Agent an officer’s certificate stating that such
merger, amalgamation, consolidation, liquidation or Disposition and any supplements to the Credit Documents preserve the
enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents, (vii) the
Successor Holdings shall, immediately following such merger, amalgamation, consolidation, liquidation or Disposition, directly or
indirectly, own all Subsidiaries owned by Holdings immediately prior to such merger, amalgamation, consolidation, liquidation or
Disposition and (viii) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be
provided to the effect that such merger, amalgamation, consolidation, liquidation, or Disposition does not breach or result in a
default under this Agreement or any other Credit Document; provided, further, that if the foregoing are satisfied, the
Successor Holdings (if other than Holdings) will succeed to, and be substituted for, Holdings under this Agreement.
10.10 Consolidated
First Lien Debt to Consolidated EBITDA Ratio. Solely with respect to the Revolving Credit Facility and subject to the following proviso,
beginning with the Test Period ending December 31, 2017, the Borrower will not permit the Consolidated First Lien Debt to Consolidated
EBITDA Ratio as of the last day of any Test Period to be greater than 8.15:1.00; provided, however, that the Borrower shall
be required to be in compliance with this Section 10.10 with respect to any Test Period only if the sum of (A) the aggregate
principal amount of all Revolving Credit Loans and Swingline Loans plus (B) the aggregate Letter of Credit Obligations (other than
(i) those Cash Collateralized in an amount equal to the Stated Amount thereof or otherwise backstopped on terms reasonably acceptable
to the Administrative Agent and the applicable Letter of Credit Issuer and (ii) without duplication of amounts described in clause
(i) above, Letter of Credit Obligations, the aggregate Stated Amount of which do not exceed the greater of (x) $5,000,000 and
(y) the Stated Amount of Existing Letters of Credit outstanding on the Closing Date), in each case outstanding on the last day of
such Test Period, exceeds 35.0% of the amount of the Total Revolving Credit Commitment in effect on such date and.
10.11 Transactions
with Affiliates. The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, enter into any transaction with
any Affiliate of the Borrower involving aggregate payments or consideration in excess of the greater of (x) $2,500,000 and (y) 5%
of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date
such transaction occurs (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such
date except:
(a) such
transactions that are made on terms, when taken as a whole, not materially less favorable to the Borrower or such Restricted Subsidiary
as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a
Person that is not an Affiliate;
(b) if
such transaction is among Holdings, the Borrower and one or more Subsidiary Guarantors or any Restricted Subsidiary or any entity that
becomes a Restricted Subsidiary as a result of such transaction;
(c) the
payment of Transaction Expenses, including the payment of all fees, expenses, bonuses and awards and the consummation of the Transactions;
(d) the
issuance of Capital Stock of any Parent Entity, any Equityholding Vehicle or the Borrower to the management of such Parent Entity, the
Borrower or any of its Subsidiaries pursuant to arrangements described in clause (m) below;
(e) the
payment of indemnities and other similar amounts and reasonable expenses incurred by the Investors and their respective Affiliates in
connection with the management or monitoring of, or the provision of other services rendered to, any Parent Entity of the Borrower, any
Equityholding Vehicle, the Borrower or any of its Subsidiaries;
(f) equity
issuances, repurchases, retirements, redemptions or other acquisitions or retirements of Capital Stock by any Parent Entity of the Borrower,
any Equityholding Vehicle or the Borrower permitted under Section 10.6 and any actions by the Borrower and its Restricted Subsidiaries
to permit the same;
(g) loans,
guarantees and other transactions by any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
to the extent permitted under Section 10 (other than by reliance on this Section 10.11);
(h) the
entry into, performance under, and making of any payments in respect of any employment, compensation and severance arrangements and health,
disability and similar insurance or benefit plans or supplemental executive retirement benefit plans or arrangements between any Parent
Entity of the Borrower, the Borrower and the Restricted Subsidiaries and their respective directors, officers, managers, employees, consultants
or independent contractors (including management and/or employee benefit plans or agreements, stock/equity/option plans, management equity
plans, subscription agreements or similar agreements pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar
rights with current or former employees, officers, managers, directors, consultants or independent contractors (or their respective Controlled
Investment Affiliates or Immediate Family Members) and stock option or incentive plans and other compensation arrangements) in the ordinary
course of business or as otherwise approved by the Board of Directors of any Parent Entity of the Borrower or the Borrower;
(i) the
payment of customary fees, compensation and reasonable out-of-pocket costs to, and benefits, indemnities and reimbursements and employment
and severance arrangements provided on behalf of, or for the benefit of, future, current or former, directors, managers, consultants,
officers, employees and independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) of
any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries in the ordinary course of business
to the extent attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(j) transactions
pursuant to permitted agreements in existence on the Closing Date and set forth on Schedule 10.11 or any amendment thereto to the extent
such an amendment is not adverse, taken as a whole, to the interests of the Lenders in any material respect as compared to the applicable
agreement in effect on the Closing Date (in the good-faith judgment of the Borrower);
(k) Restricted
Payments permitted under Section 10.6, and Investments permitted under Section 10.5;
(l) payments
(including reimbursement of out-of-pocket fees and expenses) by the Borrower and any Restricted Subsidiaries to the Investors and any
of their respective Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other investment
banking activities (including in connection with acquisitions or Dispositions, whether or not consummated), which payments are approved
by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors of any Parent
Entity of the Borrower, Holdings or the Borrower in good faith;
(m) any
issuance or transfer of Capital Stock, or other payments, awards or grants in cash, securities, Capital Stock or otherwise pursuant to,
or the funding of, employment arrangements, equity options and equity ownership plans approved by the Board of Directors of any Parent
Entity of the Borrower, any Equityholding Vehicle or the Borrower, as the case may be and the granting and performing of customary registration
rights;
(n) the
issuance and sale of any Qualified Capital Stock and any purchase by any Parent Entity of the Borrower of the Qualified Capital Stock
of the Borrower; provided that, to the extent required by Section 9.11, any Capital Stock of the Borrower so purchased shall
be pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to the Pledge Agreement;
(o) transactions
with wholly owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of
business in a manner consistent with prudent business practice followed by companies in the industry of the Borrower and its Subsidiaries;
(p) transactions
with customers, clients, suppliers, Joint Venture partners or purchasers or sellers of goods or services, in each case in the ordinary
course of business;
(q) any
contribution by any Parent Entity or Equityholding Vehicle to the capital of the Borrower;
(r) transactions
with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business and in a
manner consistent with prudent business practice followed by companies in the industry of the Borrower and its Subsidiaries;
(s) any
transaction between or among Holdings, the Borrower or any Restricted Subsidiary and any Affiliate of Holdings, the Borrower or a Joint
Venture or similar Person that would constitute an Affiliate transaction solely because Holdings, the Borrower or a Restricted Subsidiary
owns Capital Stock in or otherwise controls such Affiliate, Joint Venture or similar Person or due to the fact that a director of such
Joint Venture or similar Person is also a director of the Borrower or any Restricted Subsidiary (or any Parent Entity);
(t) Affiliate
repurchases of the Loans or Commitments to the extent permitted under this Agreement and the holding of such Loans or Commitments and
the payments and other transactions contemplated under this Agreement in respect thereof;
(u) customary
transactions effected as part of any Qualified Receivables Facility that are otherwise permitted under this Agreement;
(v) the
entering into, and payments by, any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
pursuant to tax sharing agreements among any such Parent Entity, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
on customary terms; provided that payments by Borrower and the Restricted Subsidiaries under any such tax sharing agreements shall
not exceed the excess (if any) of the amount they would pay on a standalone basis over the amount they actually pay to Governmental Authorities;
(w) transactions
in which the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent a letter from an Independent
Financial Advisor stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of view or
meets the requirements of clause (a) of this Section 10.11;
(x) payments,
loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors or
consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of the Restricted
Subsidiaries or any Parent Entity or Equityholding Vehicle and employment agreements, stock option plans and other compensatory arrangements
with any such employees, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) which,
in each case, are approved by the Borrower in good faith;
(y) (i) Investments
by any of the Permitted Holders in securities of any Parent Entity, the Borrower or any Restricted Subsidiary (and payment of
out-of-pocket expenses incurred by such Permitted Holders in connection therewith) so long as the Investment is being offered
generally to other investors on the same or more favorable terms and (ii) payments to Permitted Holders in respect of
securities or loans of the Borrower or any of the Restricted Subsidiaries contemplated in the foregoing subclause (i) or that
were acquired from Persons other than any Parent Entity, the Borrower or any Restricted Subsidiary, in each case, in accordance with
the terms of such securities or loans;
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(z)
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pledges of Capital Stock of Unrestricted Subsidiaries;
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(aa) the existence and performance of agreements and transactions with any Unrestricted Subsidiary that
were entered into prior to the designation of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction
was permitted at the time that it was entered into with such Restricted Subsidiary (and not entered into in contemplation of such designation)
and transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary
as a Restricted Subsidiary (and not entered into in contemplation of such designation); and
(bb) the existence of, and performance under, customary obligations under the terms of any equityholders
agreement, principal investors agreement (including any registration rights or purchase agreement related thereto) to which any Parent
Entity, Equityholding Vehicle, the Borrower or any Restricted Subsidiary is a party as of the Closing Date (as such agreement may be amended
or otherwise modified from time to time) and any similar agreements relating to the Capital Stock of any of the foregoing which the relevant
parties may enter into after the Closing Date (except to the extent the performance of such obligations is otherwise prohibited under
the terms of this Agreement).
SECTION 11. Events
of Default. Upon the occurrence of any of the following specified events (each an “Event of Default”):
11.1 Payments.
The Borrower shall (a) default in the payment when due of any principal of the Loans or (b) default, and such default shall
continue for five or more Business Days, in the payment when due of any interest on the Loans or any fees or of any other amounts owing
hereunder or under any other Credit Document (other than any amount referred to in clause 11.1(a)); or
11.2 Representations,
Etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or in any other Credit Document or any
certificate, statement, report or other document delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue
in any material respect on the date as of which made or deemed made; or
11.3 Covenants.
Any Credit Party shall (a) default in the due performance or observance by it of any term, covenant or agreement contained in Section 9.1(e)(i),
Section 9.5 (with respect to the existence of the Borrower only) or Section 10; provided that with respect to Section 10.10,
(i) an Event of Default (a “Financial Performance Covenant Event of Default”) shall not occur until the expiration
of the 10th Business Day subsequent to the date the certificate calculating compliance with Section 10.10 as of the last day of any
fiscal quarter is required to be delivered pursuant to Section 9.1(d) (without giving pro forma effect to any grace period for
such delivery) with respect to such fiscal quarter or fiscal year, as applicable, and (ii) any default under Section 10.10 shall
not constitute an Event of Default with respect to any Loans or Commitments hereunder, other than the Revolving Credit Loans and the Revolving
Credit Commitments, until the date on which the Revolving Credit Loans (if any) have been accelerated, and the Revolving Credit Commitments
have been terminated, in each case, by the Required Revolving Credit Lenders, or (b) default in the due performance or observance
by it of any term, covenant or agreement (other than those referred to in Section 11.1, Section 11.2 and clause (a) of
this Section 11.3) contained in this Agreement or any other Credit Document and such default shall continue unremedied for a period
of at least 30 days after receipt of written notice by the Borrower from the Administrative Agent or the Required Lenders; or
11.4 Default
Under Other Agreements. (a) The Borrower or any of the Restricted Subsidiaries shall (i) fail to make any required
payment with respect to any Indebtedness (other than any Indebtedness described in Section 11.1) in excess of $20,000,000
beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created or
(ii) fail to observe or perform any agreement or condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist (other than, (i) with
respect to Indebtedness consisting of any Hedging Agreements, termination events or equivalent events pursuant to the terms of such
Hedging Agreements and (ii) secured Indebtedness that becomes due solely as a result of the sale, transfer or other Disposition
(including as a result of Recovery Event) of the property or assets securing such Indebtedness), the effect of which default or
other event or condition 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, any such Indebtedness to become due prior to its stated maturity; provided that such
failure remains unremedied or has not been waived (including in the form of an amendment) by the holders of such Indebtedness or
(b) without limiting the provisions of clause (a) above, any such Indebtedness shall be declared to be due and payable, or
required to be prepaid prior to the stated maturity thereof other than by (x) a regularly scheduled required prepayment or
(y) as a mandatory prepayment or redemption; provided that this clause (b) shall not apply to (A) Indebtedness
outstanding under any Hedging Agreements that becomes due pursuant to a termination event or equivalent event under the terms of
such Hedging Agreements, (B) secured Indebtedness that becomes due as a result of a Disposition or a Recovery Event with
respect to the property or assets securing such Indebtedness or (C) Indebtedness that is convertible into Capital Stock and
converts to Capital Stock in accordance with its terms; or
11.5 Bankruptcy,
Etc. Holdings, the Borrower or any Specified Subsidiary shall commence a voluntary case, proceeding or action concerning itself under
the Bankruptcy Code; or an involuntary case, proceeding or action is commenced against Holdings, the Borrower or any Specified Subsidiary
under the Bankruptcy Code and the petition is not dismissed within 60 days after commencement of the case, proceeding or action; or Holdings,
the Borrower or any Specified Subsidiary commences any other proceeding or action under any other Debtor Relief Law of any jurisdiction
whether now or hereafter in effect relating to Holdings, the Borrower or any Specified Subsidiary; or a custodian (as defined in the Bankruptcy
Code), receiver, receiver manager, trustee or similar person is appointed for, or takes charge of, all or substantially all of the property
of Holdings, the Borrower or any Specified Subsidiary; or there is commenced against Holdings, the Borrower or any Specified Subsidiary
under any other Debtor Relief Law any such proceeding or action that remains undismissed for a period of 60 days; or any order of relief
or other order approving any such case or proceeding or action is entered; or Holdings, the Borrower or any Specified Subsidiary suffers
any appointment of any custodian, receiver, receiver manager, trustee or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or Holdings, the Borrower or any Specified Subsidiary makes a general assignment for
the benefit of creditors; or
11.6 ERISA.
(a) With respect to any Pension Plan, the failure by Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate
to satisfy the minimum funding standard required for any plan year or part thereof, whether or not waived, under Section 412 of the
Code; with respect to any Multiemployer Plan, the failure to make any required contribution or payment; a determination that any Pension
Plan is in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA or any Multiemployer
Plan is in “endangered or critical status” within the meaning of Section 432 of the Code or Section 305 of ERISA;
any Pension Plan is or shall have been terminated or is the subject of termination proceedings by the PBGC under Title IV of ERISA (including
the giving of written notice thereof); a determination that a Pension Plan or Multiemployer Plan is “insolvent” within the
meaning of Section 4245 of ERISA; with respect to any Multiemployer Plan, notification by the administrator of such Multiemployer
Plan that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred or will be assessed Withdrawal Liability
to such Multiemployer Plan; the PBGC provides written notice of its intent to terminate any Pension Plan or to appoint a trustee to administer
any Pension Plan in a manner that results in a liability under Title IV of ERISA to the Borrower, any Restricted Subsidiary thereof or
any ERISA Affiliate; an event shall have occurred or a condition shall exist entitling the PBGC to provide written notice of its intent
to terminate any Pension Plan; the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred or is reasonably likely
to incur a liability to or on account of a Pension Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064 or 4069 of ERISA
or Section 4971 or 4975 of the Code (including the receipt by Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate
of written notice thereof); any termination of a Foreign Plan has occurred that gives rise to liability for Holdings, the Borrower or
any Restricted Subsidiary; or any non-compliance with the funding requirements under Applicable Law for any Foreign Plan has occurred;
(b) there could result from any event or events set forth in clause (a) of this Section 11.6 the imposition of a Lien,
the granting of a security interest, or a liability, or the reasonable likelihood of incurring a Lien, security interest or liability;
and (c) such Lien, security interest or liability will or would be reasonably likely to have a Material Adverse Effect; or
11.7 Guarantee.
The Guarantee or any material provision thereof shall cease to be in full force or effect or any Guarantor thereunder or any Credit Party
shall deny or disaffirm in writing any Guarantor’s obligations under the Guarantee; or
11.8 Security
Document. Any Security Document or any material provision thereof shall cease to be in full force or effect (other than pursuant to
the terms hereof or thereof or as a result of acts or omissions of the Administrative Agent, the Collateral Agent or any Lender), or any
grantor, pledgor or mortgagor thereunder or any Credit Party shall deny or disaffirm in writing any grantor’s, pledgor’s or
mortgagor’s obligations under such Security Document; or
11.9 Judgments.
One or more judgments or decrees shall be entered against Holdings, the Borrower or any of the Restricted Subsidiaries for the payment
of money in an aggregate amount in excess of $20,000,000 for all such judgments and decrees for Holdings, the Borrower and the Restricted
Subsidiaries (to the extent not paid or fully covered by insurance provided by a carrier not disputing coverage) and any such judgments
or decrees shall not have been satisfied, vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof;
or
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11.10
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Change of Control. A Change of Control shall occur;
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then, and in any such event, and at any time thereafter,
if any Event of Default shall then be continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the Borrower, take any or all of the following actions: (i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately, (ii) require that the Letter of Credit Obligations be Cash Collateralized as provided in Section 3.8(b) and
(iii) declare the principal of and any accrued interest and fees in respect of all Loans and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower without prejudice to the rights of any Agent or any Lender to enforce its claims
against the Borrower, except as otherwise specifically provided for in this Agreement (provided that, if an Event of Default specified
in Section 11.5 with respect to the Borrower shall occur, no written notice by the Administrative Agent shall be required and the
Commitments shall automatically terminate and all amounts in respect of all Loans and all Obligations shall automatically become forthwith
due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower).
Notwithstanding the foregoing,
during any period during which solely a Financial Performance Covenant Event of Default has occurred and is continuing, the Administrative
Agent may with the consent of, and shall at the request of, the Required Revolving Credit Lenders take any of the foregoing actions described
in the immediately preceding paragraph solely as they relate to the Revolving Credit Lenders (versus the Lenders), the Revolving Credit
Commitments (versus the Commitments), the Revolving Credit Loans and the Swingline Loans (versus the Loans), and the Letters of Credit.
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11.11
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Borrower’s Right to Cure.
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(a) Financial
Performance Covenant. Notwithstanding anything to the contrary contained in this Section 11, in the event that the Borrower
reasonably expects to fail (or has failed) to comply with the requirements of the Financial Performance Covenant as of the end of
any Test Period, at any time during the last fiscal quarter of such Test Period through and until the expiration of the 10th
Business Day subsequent to the date the financial statements are required to be delivered pursuant to Section 9.1(a) or
Section 9.1(b) with respect to such fiscal quarter (the “Cure Deadline”), the Borrower (or any Parent
Entity thereof) shall have the right to issue Capital Stock (other than Disqualified Capital Stock) for cash or otherwise receive
cash contributions to (or, in the case of any Parent Entity of Holdings, receive equity interests in Holdings for its cash
contributions to) the Capital Stock (other than Disqualified Capital Stock) of the Borrower (collectively, the “Cure
Right”), and upon the receipt by the Borrower of the net proceeds of such issuance or contribution (the “Cure
Amount”) pursuant to the exercise by the Borrower of such Cure Right; provided such Cure Amount is received by the
Borrower on or before the applicable Cure Deadline, compliance with the Financial Performance Covenant for such Test Period shall be
recalculated giving pro forma effect to the following pro forma adjustments:
(i) Consolidated
EBITDA shall be increased with respect to such applicable fiscal quarter with respect to which such Cure Amount is received by the Borrower
and any Test Period that includes such fiscal quarter, solely for the purpose of determining whether an Event of Default has occurred
and is continuing as a result of a violation of the Financial Performance Covenant and, subject to clause (c) below, not for any
other purpose under this Agreement, by an amount equal to the Cure Amount and any prepayment of Indebtedness with the Cure Amount shall
be disregarded for purposes of measuring the Financial Performance Covenant for such Test Period;
(ii) if,
after giving pro forma effect to such increase in Consolidated EBITDA, the Borrower shall then be in compliance with the requirements
of the Financial Performance Covenant, the Borrower shall be deemed to have satisfied the requirements of the Financial Performance Covenant
as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and
the applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for purposes of this Agreement;
and
(iii) Consolidated
First Lien Debt in the Test Period for which the Cure Amount is deemed applied shall be decreased solely to the extent proceeds of the
Cure Amount are applied to prepay any Indebtedness (provided that any such Indebtedness so prepaid shall be a permanent repayment of such
Indebtedness and termination of commitments thereunder) included in the calculation of Consolidated First Lien Debt;
provided
that the Borrower shall have notified the Administrative Agent in writing of the exercise of such Cure Right within five Business Days
of the receipt of the Cure Amounts.
(b) Limitation
on Exercise of Cure Right. Notwithstanding anything herein to the contrary, (i) in each four fiscal-quarter period there shall
be no more than two fiscal quarters with respect to which the Cure Right is exercised, (ii) there shall be no more than five exercises
of Cure Right in the aggregate, (iii) the Cure Amount shall be no greater than the amount required for purposes of complying with
the Financial Performance Covenant as of the end of such fiscal quarter (such amount, the “Necessary Cure Amount”);
provided that, if the Cure Right is exercised prior to the date financial statements are required to be delivered for such fiscal
quarter then the Cure Amount shall be equal to the amount reasonably determined by the Borrower in good faith that is required for purposes
of complying with the Financial Performance Covenant for such fiscal quarter (such amount, the “Expected Cure Amount”),
(iv) subject to clause (c) below, all Cure Amounts shall be disregarded for purposes of determining the Applicable Margin,
any baskets, with respect to the covenants contained in the Credit Documents, any “incurrence” based financial ratio or the
usage of the Available Amount or the Available Equity Amount and (v) no borrowing shall be made under the Revolving Credit Facility
(or Letters of Credit issued, increased or extended) following a breach of the Financial Maintenance Covenant until the Cure Amount has
actually been received by the Borrower.
(c) Expected
Cure Amount. Notwithstanding anything herein to the contrary, to the extent that the Expected Cure Amount is (i) greater than
the Necessary Cure Amount, then such difference may be used for the purposes of determining any baskets (other than any previously contributed
Cure Amounts), with respect to the covenants contained in the Credit Documents, the Available Amount or the Available Equity Amount and
(ii) less than the Necessary Cure Amount, then not later than the applicable Cure Deadline, the Borrower must receive the cash proceeds
of the Cure Amount or a cash capital contribution to Holdings, which cash proceeds received by Borrower shall be equal to the shortfall
between such Expected Cure Amount and such Necessary Cure Amount.
SECTION 12. The
Administrative Agent and the Collateral Agent.
(a) Each
Lender hereby irrevocably designates and appoints UBS AG, Stamford Branch (together with any successor Administrative Agent pursuant to
Section 12.11) as Administrative Agent as the agent of such Lender under this Agreement and the other Credit Documents, and each
such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Credit Document
or otherwise exist against the Administrative Agent.
(b) Each
Lender hereby appoints UBS AG, Stamford Branch (together with any successor Collateral Agent pursuant to Section 12.11) as the Collateral
Agent hereunder and authorizes the Collateral Agent to (i) take such action on its behalf and to exercise all rights, powers and
remedies and perform the duties as are expressly delegated to the Collateral Agent under such Credit Documents and (ii) exercise
such powers as are reasonably incidental thereto. For purposes of the exculpatory, liability-limiting, indemnification and other similar
provisions of this Section 12, references to the “Administrative Agent” shall be deemed to include the Collateral
Agent in its capacity as such. Each Lender hereby appoints the Collateral Agent to enter into, and sign for and on behalf of the Lenders
as Secured Parties, the Security Documents for the benefit of the Lenders and the Secured Parties.
(c) Each
Lead Arranger and each Joint Bookrunner, in its capacity as such, shall not have any obligations, duties or responsibilities under this
Agreement but shall be entitled to all benefits of this Section 12.
12.2 Limited
Duties. Under the Credit Documents, the Administrative Agent (i) is acting solely on behalf of the Lenders (except to the limited
extent provided in Section 2.5(e)), with duties that are entirely administrative in nature, notwithstanding the use of the defined
term “Administrative Agent,” the terms “agent,” “administrative agent” and “collateral agent”
and similar terms in any Credit Document to refer to the Administrative Agent, which terms are used for title purposes only, (ii) is
not assuming any obligation under any Credit Document other than as expressly set forth therein or any role as agent, fiduciary or trustee
of or for any Lender or any other Secured Party and (iii) shall have no implied functions, responsibilities, duties, obligations
or other liabilities under any Credit Document, and each Lender hereby waives and agrees not to assert any claim against the Administrative
Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above.
12.3 Binding
Effect. Each Lender agrees that (i) any action taken by the Administrative Agent or the Required Lenders (or, if expressly required
hereby, a greater proportion of the Lenders) or the Required Revolving Credit Lenders in accordance with the provisions of the Credit
Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of Required Lenders (or, where so
required, such greater proportion) or the Required Revolving Credit Lenders and (iii) the exercise by the Administrative Agent or
the Required Lenders (or, where so required, such greater proportion) or the Required Revolving Credit Lenders of the powers set forth
herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the
Secured Parties.
12.4 Delegation
of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact, or through their respective Related Parties, and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The exculpatory provisions of this Section 12 shall apply to any such sub-agent and to the Related Parties
of the Administrative Agent and any such sub agent. The Administrative Agent shall not be responsible for the negligence or misconduct
of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the
Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
12.5 Exculpatory
Provisions. Neither the Administrative Agent nor any of its respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall (a) be liable for any action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Credit Document, including, for the avoidance of doubt, any action taken by it in good
faith in connection with the entry into, or any amendment of, or any action taken in connection with, any Customary Intercreditor
Agreement contemplated by the terms hereof (except for its or such Person’s own gross negligence or willful misconduct as
determined in a final and non-appealable decision of a court of competent jurisdiction), (b) be responsible for or have any
duty to ascertain or inquire into (i) any recitals, statements, representations or warranties contained in this Agreement or
any other Credit Document or in any certificate, report, statement, agreement or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with, this Agreement or any other Credit Document, (ii) the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Credit Document, (iii) the
creation, perfection priority of any Lien purported to be created by the Credit Documents, (iv) any failure of the Borrower,
any Guarantor or any other Credit Party to perform its obligations hereunder or thereunder or the occurrence of any Default or
(v) the value or the sufficiency of any Collateral, (c) be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (d) have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the
Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of
the Lenders as shall be expressly provided for herein or in the other Credit Documents), provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative
Agent to liability or that is contrary to any Credit Document or Applicable Law, including for the avoidance of doubt any action
that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any Debtor Relief Law and (e) except as expressly set forth
herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the properties, books or records of the Borrower. The Administrative Agent
shall have no responsibility, duty or liability for monitoring or enforcing the list of, or prohibitions on assignments or
participations to, Disqualified Lenders or for any assignment or participation to a Disqualified Lender.
12.6 Reliance
by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex, electronic mail message or teletype message, statement,
order or other document or conversation believed by it to be genuine and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat the Lender specified in the Register with respect to any amount
owing hereunder as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have
been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Credit Document unless it shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the other Credit Documents in accordance with a request of
the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.
12.7 Notice
of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the
event that the Administrative Agent receives such a written notice, the Administrative Agent shall give notice thereof to the
Lenders and the Collateral Agent. The Administrative Agent shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders (except to
the extent that this Agreement requires that such action be taken only with the approval of the Required Lenders or each of the
Lenders, as applicable).
12.8 Non-Reliance
on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its
respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Borrower, any Guarantor or any other
Credit Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents
to the Administrative Agent 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 appraisal of and investigation
into the business, operations, property, financial and other condition and creditworthiness of the Borrower, any Guarantor and any other
Credit Party and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties, and based
on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other Credit Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrower, any Guarantor
and any other Credit Party. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative
Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information
concerning the business, assets, operations, properties, financial condition, prospects or creditworthiness of the Borrower, any Guarantor
or any other Credit Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
12.9 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent required to be reimbursed by the Borrower
and not so reimbursed by the Borrower, and without limiting the obligation of the Borrower to do so), ratably according to their respective
portions of the Total Credit Exposure in effect on the date on which indemnification is sought (or, if indemnification is sought after
the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their
respective portions of the Total Credit Exposure in effect immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at
any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative
Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative
Agent’s gross negligence or willful misconduct as determined in a final and non-appealable decision of a court of competent jurisdiction.
The agreements in this Section 12.9 shall survive the payment of the Loans and all other amounts payable hereunder.
12.10 Agent
in Its Individual Capacity. Each of UBS AG, Stamford Branch and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower, any Guarantor and any other Credit Party as though UBS AG, Stamford Branch was not the
Administrative Agent hereunder and under the other Credit Documents. With respect to the Loans made by it, UBS AG, Stamford Branch shall
have the same rights and powers under this Agreement and the other Credit Documents as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include UBS AG, Stamford Branch
in its individual capacity.
12.11 Successor
Agent. The Administrative Agent and/or the Collateral Agent may resign as the Administrative Agent and/or Collateral Agent, as
the case may be, upon 20 days’ prior written notice to the Lenders, the Letter of Credit Issuer, the Swingline Lender, the
other Agents and the Borrower. If the Administrative Agent and/or Collateral Agent becomes a Defaulting Lender, then such
Administrative Agent or Collateral Agent, as the case may be, may be removed as the Administrative Agent or Collateral Agent, as the
case may be, at the reasonable request of the Borrower and the Required Lenders. If the Administrative Agent and/or Collateral Agent
shall resign or be removed as the Administrative Agent and/or the Collateral Agent under this Agreement and the other Credit
Documents, then (a) the Required Lenders shall appoint from among the Lenders a successor for the Lenders within 30 days, or
(b) in the case of a resignation, the Administrative Agent and/or the Collateral Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent and/or the Collateral Agent, as applicable, selected from among the Lenders. In either case, the
successor shall be approved by the Borrower (which approval shall not be unreasonably withheld and shall not be required if an Event
of Default under Section 11.1 or 11.5 shall have occurred and be continuing), whereupon such successor shall succeed to the
rights, powers and duties of the Administrative Agent and/or the Collateral Agent, and the term “Administrative
Agent,” and/or “Collateral Agent,” as applicable, shall mean such successor effective upon such
appointment and approval, and the former Administrative Agent’s and/or Collateral Agent’s rights, powers and duties as
the Administrative Agent and/or the Collateral Agent shall be terminated without any other or further act or deed on the part of
such former Administrative Agent and/or Collateral Agent or any of the parties to this Agreement or any Lenders or other holders of
the Loans. If no successor has accepted appointment as Administrative Agent and/or the Collateral Agent by the date which is 30 days
following the retiring Administrative Agent’s and/or Collateral Agent’s notice of resignation, as the case may be,
(x) the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor
as provided for above and (y) the retiring Collateral Agent’s resignation shall nevertheless thereupon become effective
at such time as a successor Collateral Agent shall have been appointed, and such successor Collateral Agent shall have accepted such
appointment, in accordance with the terms of this Section 12.11 and upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may reasonably request, in order to continue the perfection of
the Liens granted or purported to be granted by the Security Documents. After any retiring or removed Administrative Agent’s
and/or the Collateral Agent’s resignation or removal as the Administrative Agent and/or Collateral Agent, the provisions of
this Section 12 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative
Agent and/or Collateral Agent under this Agreement and the other Credit Documents.
Any resignation or replacement
by UBS AG, Stamford Branch as Administrative Agent pursuant to this Section shall also constitute its resignation or replacement
as Letter of Credit Issuer and Swingline Lender. If UBS AG, Stamford Branch resigns or is replaced as Letter of Credit Issuer, it shall
retain all the rights, powers, privileges and duties of the Letter of Credit Issuer hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation or replacement as Letter of Credit Issuer and all Letter of Credit Obligations with respect
thereto, including the right to require the Lenders to make Revolving Credit Loans or fund risk participations in Unpaid Drawings pursuant
to Sections 3.3 and 3.4. At the time such resignation or replacement shall become effective, the Borrower shall pay to UBS AG, Stamford
Branch all accrued and unpaid fees pursuant to Sections 4.1(b) and 4.1(d). After such resignation or replacement, UBS AG, Stamford
Branch shall not be required to issue additional Letters of Credit or amend or renew existing Letters of Credit or issue additional Swingline
Loans. If UBS AG, Stamford Branch resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder
with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require
the Lenders to make Revolving Credit Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.1(d)(ii).
Upon the appointment by the Borrower of a successor Letter of Credit Issuer or Swingline Lender hereunder (which successor shall in all
cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Letter of Credit Issuer or Swingline Lender, as applicable, (b) the retiring Letter
of Credit Issuer and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other
Credit Documents, and (c) the successor Letter of Credit Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to UBS AG, Stamford Branch to effectively
assume the obligations of UBS AG, Stamford Branch with respect to such Letters of Credit.
12.12 Withholding
Tax. To the extent the Administrative Agent reasonably believes that it is required by any Applicable Law, the Administrative
Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or
expanding the obligations of the Credit Parties under Section 5.4, if the United States Internal Revenue Service or any
authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax
from amounts paid to or for the account of any Lender (because the appropriate form was not delivered, was not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason), such Lender shall indemnify the Administrative Agent fully for
all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including penalties and interest,
together with all expenses incurred, including legal expenses, allocated staff costs and any out-of-pocket expenses. The agreements
in this Section 12.12 shall survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder. The Administrative Agent shall be entitled to set off any amounts owing to it under Section 12.12 against
any amounts otherwise payable to the applicable Lender.
12.13 Duties
as Collateral Agent and as Paying Agent. Without limiting the generality of Section 12.1 above, the Collateral Agent shall have
the sole and exclusive right and authority (to the exclusion of the Lenders each Hedge Bank and each Cash Management Bank), and is hereby
authorized, to (i) act as the disbursing and collecting agent for the Secured Parties with respect to all payments and collections
arising in connection with the Credit Documents (including in any proceeding described in Section 11.5 or any other proceeds under
any other Debtor Relief Laws, and each Person making any payment in connection with any Credit Document to any Secured Party is hereby
authorized to make such payment to the Collateral Agent, (ii) file and prove claims and file other documents necessary or desirable
to allow the claims of the Secured Parties with respect to any Obligation in any proceeding described in Section 11.5 or any other
proceeds under any other Debtor Relief Laws (but not to vote, consent or otherwise act on behalf of such Secured Party), (iii) act
as collateral agent for each Secured Party for purposes of the perfection of all Liens created by such agreements and all other purposes
stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or
desirable to maintain the perfection and priority of the Liens created or purported to be created by the Credit Documents, (vi) except
as may be otherwise specified in any Credit Document, exercise all remedies given to the Collateral Agent and the other Secured Parties
with respect to the Collateral, whether under the Credit Documents, applicable requirements of law or otherwise, (vii) negotiate
the form of any Mortgage and (viii) execute any amendment, consent or waiver under the Security Documents on behalf of the Secured
Parties, to the extent consented to in accordance with Section 13.1 and the terms thereof; provided, however, that
the Collateral Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Collateral Agent and the
other Secured Parties for purposes of the perfection of all Liens with respect to the Collateral, including any deposit account maintained
by a Credit Party with, and cash and Cash Equivalents held by such Secured Party and may further authorize and direct the Secured Parties
to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject
thereto to the Collateral Agent, and each Secured Party hereby agrees to take such further actions to the extent, and only to the extent,
so authorized and directed.
12.14 Authorization
to Release Liens and Guarantees. The Administrative Agent and the Collateral Agent are hereby irrevocably authorized by each of the
Lenders to effect any release or subordination of Liens or the Guarantees contemplated by Section 13.17 without further action or
consent by the Lenders.
12.15 Intercreditor
Agreements. The Collateral Agent is hereby authorized to enter into any Customary Intercreditor Agreement to the extent contemplated
by the terms hereof, and the parties hereto acknowledge that such Customary Intercreditor Agreement is binding upon them. Each Lender
(a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Customary Intercreditor Agreement
and (b) hereby authorizes and instructs the Collateral Agent to enter into the Customary Intercreditor Agreement and to subject the
Liens on the Collateral securing the Obligations to the provisions thereof. In addition, each Lender hereby authorizes the Collateral
Agent to enter into (i) any amendments to any Customary Intercreditor Agreement, and (ii) any other intercreditor arrangements,
in the case of clauses (i), and (ii) to the extent required to give effect to the establishment of intercreditor rights and privileges
as contemplated and required by Section 10.2 of this Agreement.
Each Lender acknowledges
and agrees that any of the Agents (including UBS AG, Stamford Branch) (or one or more of their respective Affiliates) may (but are
not obligated to) act as the “Representative” or like term for the holders of Credit Agreement Refinancing Indebtedness
under the security agreements with respect thereto and/or under a Customary Intercreditor Agreement. Each Lender waives any conflict
of interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against any Agent or any of its
affiliates any claims, causes of action, damages or liabilities of whatever kind or nature relating thereto.
12.16 Secured
Cash Management Agreements and Secured Hedge Agreements. Except as otherwise expressly set forth herein or in any Guarantee or any
Security Document, no Cash Management Bank or Hedge Bank that obtains the benefits of any Guarantee or any Collateral by virtue of the
provisions hereof or of any Guarantee or any Security Document shall have any right to notice of any action or to consent to, direct or
object to any action hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the release or
impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Credit
Documents. Notwithstanding any other provision of this Section 12 to the contrary, the Administrative Agent shall not be required
to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash
Management Agreements and Secured Hedging Agreements unless the Administrative Agent has received written notice of such Obligations,
together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge
Bank, as the case may be.
12.17 Administrative
Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding
relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Obligations
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the Letter of Credit Issuer and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, Letter of Credit Issuer and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders, Letter of Credit Issuer and the Administrative Agent under Sections 4.1 and 13.5) allowed
in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender
and the Letter of Credit Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and Letter of Credit Issuer, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any
other amounts due the Administrative Agent under Sections 4.1 and 13.5.
Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the Letter of Credit Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or Letter of Credit Issuer or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Letter
of Credit Issuer in any such proceeding.
The
Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all
or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the
Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or
more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the
Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any
similar laws in any other jurisdictions to which a Credit Party is subject, (b) at any other sale or foreclosure or acceptance
of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by
judicial action or otherwise) in accordance with any Applicable Law. In connection with any such credit bid and purchase, the
Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with
respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would
vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in
allocating the contingent interests) in the asset or assets so purchased (or in the Capital Stock or debt instruments of the
acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the
Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents
providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with
respect to such acquisition vehicle or vehicles, including any disposition of the assets or Capital Stock thereof shall be governed,
directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving
pro forma effect to the limitations on actions by the Required Lenders contained in clauses (i) through (vii) of
Section 13.1 of this Agreement, (iii) the Administrative Agent shall be authorized to assign the relevant Obligations to
any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a
pro rata portion of any Capital Stock and/or debt instruments issued by such an acquisition vehicle on account of the assignment of
the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and
(iv) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any
reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle
exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned
to the Lenders pro rata and the Capital Stock and/or debt instruments issued by any acquisition vehicle on account of the
Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured
Party or any acquisition vehicle to take any further action.
SECTION 13. Miscellaneous.
13.1 Amendments
and Waivers. Except as expressly set forth in this Agreement, neither this Agreement nor any other Credit Document (other than the
Fee Letter), nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this
Section 13.1. Except with respect to any amendment, modification or waiver contemplated in clause (i) below, which shall only
require the consent of the Lenders expressly set forth therein and not the Required Lenders or any other majority or required percentage
of Lenders of any Class of Loans or Commitments, the Required Lenders may, or, with the written consent of the Required Lenders,
the Administrative Agent and/or the Collateral Agent shall, from time to time, (a) enter
into with the relevant Credit Party or Credit Parties written amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Agreement or the other Credit Documents or changing in any manner the rights
of the Lenders or the Credit Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders,
the Administrative Agent and/or the Collateral Agent, as the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Credit Documents or any Default or Event of Default and its consequences; provided, however, that
no such waiver, amendment, supplement or modification shall directly:
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(i)
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without the written consent of each Lender directly and adversely affected thereby:
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(A) reduce
or forgive the principal of any Loan (it being understood that a waiver of any condition precedent set forth in Section 6 and 7 or
waiver or amendment of any Default, Event of Default or mandatory prepayment shall not constitute a reduction or forgiveness of principal);
(B) extend
the date of any scheduled amortization payment (including any scheduled Initial Term Loan Repayment Date or any date scheduled for
the repayment of any installment of Incremental Term Loans) or the final scheduled maturity date of any Loan (other than as a result
of waiving the conditions precedent set forth in Sections 6 and 7 or other than as a result of a waiver or amendment of any Default,
Event of Default or mandatory prepayment (which shall not constitute an extension, forgiveness or postponement of any maturity
date)); provided that the foregoing shall
not apply to extensions effected in accordance with Section 2.15;
(C) reduce
the amount of any fee payable hereunder or reduce the stated interest rate applicable to the Loans (it being understood that any change
(x) to the definition of “Consolidated First Lien Debt to Consolidated EBITDA Ratio” or (y) in the component definitions
thereof shall not constitute a reduction in the rate); provided that only the consent of the Required Lenders shall be necessary
(i) to waive any obligation of the Borrower to pay interest at the “default rate,” (ii) to amend Section 2.8(c) or
(iii) to waive any requirement of Section 2.14(b);
(D) extend
the date for the payment of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default
increase in interest rates and other than as a result of a waiver or amendment of any Default, Event of Default or mandatory prepayment
(which shall not constitute an extension, forgiveness or postponement of any date for payment of principal, interest or fees));
(E) extend
the final expiration date of any Lender’s Commitment (provided that any Lender, upon the request of the Borrower, may extend
the final expiration date of its Commitments without the consent of any other Lender, including the Required Lenders); provided
that the foregoing shall not apply to extensions effected in accordance with Section 2.15;
(F) extend
the final expiration date of any Letter of Credit beyond the date specified in Section 3.1(b);
(G) increase the aggregate amount of any Commitment of any Lender (other than (i) with
respect to any Incremental Facility to which such Lender has agreed, (ii) as a result of waiving the conditions precedent set forth
in Sections 6 and 7 or (iii) as a result of a waiver or amendment of any Default or Event of Default (which shall not constitute
an extension or increase of any commitment));
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(H)
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decrease or forgive any Repayment Amount; or
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(I) amend
the application of proceeds under Section 5.4 of the Security Agreement or Section 12(b) of the Pledge Agreement; or
(ii) reduce
the percentages specified in the definition of the term “Required Revolving Credit Lenders” without the written consent
of all Revolving Credit Lenders, or
(iii) amend,
modify or waive any provision of this Section 13.1 or reduce the percentages specified in the definition of the term “Required
Lenders” or consent to the assignment or transfer by the Borrower of its rights and obligations under any Credit Document to which
it is a party (except as permitted pursuant to Section 10.3), in each case without the written consent of each Lender, or
(iv) amend,
modify or waive any provision of Section 12 without the written consent of then- current Administrative Agent and/or the Collateral
Agent, as applicable, or
(v) amend,
modify or waive any provision of Section 2.16 (to the extent applicable to it) or Section 3 without the written consent of the
Letter of Credit Issuer, or
(vi) amend,
modify or waive any provisions hereof relating to Swingline Loans without the written consent of the Swingline Lender, or
(vii) subject
to any applicable Customary Intercreditor Agreement, release all or substantially all of the value of the Guarantors under the Guarantee
(except as expressly permitted by the Guarantee), or release all or substantially all of the Collateral under the Security Documents (except
as expressly permitted by the Security Documents), in each case without the prior written consent of each Lender.
provided,
further, that (A) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties
under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments
of any other Class) may be effected by an agreement or agreements in writing entered into by Holdings, the Borrower, and the requisite
percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such
Class of Lenders were the only Class of Lenders hereunder at the time and (B) any provision of this Agreement or any
other Credit Document may be amended by an agreement in writing entered into by Holdings, the Borrower and the Administrative Agent to
cure any ambiguity, omission, defect or inconsistency (including, without limitation, amendments, supplements or waivers to any of the
Security Documents, guarantees, intercreditor agreements or related documents executed by any Credit Party or any other Subsidiary in
connection with this Agreement if such amendment, supplement or waiver is delivered in order to cause such Security Documents, guarantees,
intercreditor agreements or related documents to be consistent with this Agreement and the other Credit Documents) so long as, in each
case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall
not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating
that the Required Lenders object to such amendment; provided that the consent of the Lenders or the Required Lenders, as the case
may be, shall not be required to make any such changes necessary to be made in connection with (w) any borrowing of Incremental
Term Loans to effect the provisions of Section 2.14, (x) the
provision of any Incremental Revolving Credit Commitment Increase or any Additional/Replacement Revolving Credit Commitments, (y) in
connection with an amendment that addresses solely a re-pricing transaction in which any Class of Term Loans is refinanced with
a replacement Class of term loans bearing (or is modified in such a manner such that the resulting term loans bear) a lower Effective
Yield for which only the consent of the Lenders holding Term Loans subject to such permitted repricing transaction that will continue
as a Lender in respect of the repriced tranche of Term Loans or modified Term Loans or (z) changes otherwise to effect the provisions
of Section 2.14, 2.15, 2.17 or 10.2(a) and (C) Holdings, the Borrower and the Administrative Agent may, without the input
or consent of the other Lenders, (i) negotiate the form of any Mortgage as may be necessary or appropriate in the opinion of the
Collateral Agent and (ii) effect changes to this Agreement that are necessary and appropriate to provide for the mechanics contemplated
by the offering process set forth in Section 13.6(g)(i)(B) herein.
Notwithstanding the foregoing,
only the consent of the Required Revolving Credit Lenders shall be required to (and only the Required Revolving Credit Lenders shall have
the ability to) waive, amend, supplement or modify the covenant set forth in Section 10.10 (including any defined terms as they relate
thereto).
Notwithstanding the foregoing,
the Administrative Agent and the Collateral Agent may, without the consent of any Lender, enter into any amendment to the Security Documents
or a Customary Intercreditor Agreement contemplated by Section 10.2(a) or 10.2(u).
To the extent notice has been
provided to the Administrative Agent pursuant to the definition of Credit Agreement Refinancing Indebtedness, Permitted Additional Debt
or Permitted Refinancing Indebtedness or pursuant to Sections 2.14(c), 10.1(k)(i) or 10.1(s) with respect to the inclusion of
any Previously Absent Financial Maintenance Covenant, this Agreement shall be automatically and without further action on the part of
any Person hereunder and notwithstanding anything to the contrary in this Section 13.1 deemed modified to include such Previously
Absent Financial Maintenance Covenant on the date of the Incurrence of the applicable Indebtedness to the extent required by the terms
of such definition or section.
13.2 Notices;
Electronic Communications. Notices and other communications provided for herein shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:
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(a)
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if to the Borrower, Holdings or any other Credit Party, to it at:
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c/o Wirepath LLC
1800 Continental Boulevard, Suite 200
Charlotte, NC 28273
Attention: [*****]
Tel: [*****]
Electronic mail: [*****]
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(b)
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if to the Administrative Agent, Collateral Agent or Swingline Lender to it at:
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UBS AG, Stamford Branch
Attention: Structured Finance Processing
600 Washington Blvd., 9th Floor Stamford, CT 06901
Facsimile: [*****]
Telephone: [*****]
Email: [*****]
and
(c) if
to a Lender or Letter of Credit Issuer, to it at its address (or fax number) set forth on Schedule 13.2 or in the Assignment and Acceptance, Incremental
Agreement or documents relating to any Refinancing pursuant to which such Lender shall have become a party hereto.
All notices and other communications
given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt
if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch by certified or registered
mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 13.2 or in
accordance with the latest unrevoked direction from such party given in accordance with this Section 13.2. Notices and other communications
may also be delivered by e-mail to the email address of a representative of the applicable Person provided from time to time by such Person.
The Borrower hereby agrees,
unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below has not been provided by
the Administrative Agent to the Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative Agent all information,
documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit Documents or to the Lenders
under Section 9, including all notices, requests, financial statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (i) is or relates to a Notice of Borrowing or a notice pursuant to Section 2.6,
(ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides
notice of any Default or Event of Default under this Agreement or any other Credit Document or (iv) is required to be delivered to
satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder (all
such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications
in an electronic/soft medium that is properly identified in a format reasonably acceptable to the Administrative Agent to an electronic
mail address as directed by the Administrative Agent. In addition, the Borrower agrees, and agrees to cause its Subsidiaries, to continue
to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Credit Documents
but only to the extent requested by the Administrative Agent.
The Borrower hereby acknowledges that
(a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks or
another similar electronic system (the “Platform”) and (b) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material non- public information with respect to
Holdings (or any Parent Entity thereof) or the Borrower or any of their respective securities) (each, a “Public
Lender”). The Borrower hereby agrees that (x) by marking Borrower Materials “PUBLIC,” the Borrower shall
be deemed to have authorized the Agents and the Lenders to treat the Borrower Materials as not containing any material non-public
information with respect to Holdings (or any Parent Entity thereof) or the Borrower or any of their respective securities for
purposes of United States federal securities laws (provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 13.16); (y) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public
Investor”; and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.”
Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the
Borrower notifies the Administrative Agent promptly that any such document contains material non-public information: (1) the
Credit Documents, (2) notification of changes in the terms of the Credit Facilities and (3) all information delivered
pursuant to Section 9.01(a) and (b).
Each Public Lender agrees
to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender’s compliance procedures and Applicable Law, including United States federal securities laws, to make reference
to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to Holdings (or any Parent Entity thereof) or the Borrower or any of their respective securities
for purposes of United States federal securities laws.
THE PLATFORM IS PROVIDED
“AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANT
THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS
OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE
ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE
AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY OTHER AGENT OR ANY OTHER PERSON FOR DAMAGES
OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR NOTICES THROUGH THE PLATFORM, ANY OTHER ELECTRONIC PLATFORM OR ELECTRONIC
MESSAGING SERVICE, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL DECISION BY A COURT OF COMPETENT JURISDICTION
TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT.
The Administrative Agent agrees
that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery
of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that receipt of notice to it
(as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery
of the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees to notify the Administrative Agent in writing
(including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent
by electronic transmission and that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right
of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Credit Document in any other manner
specified in such Credit Document.
The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices, Notices of Borrowing and Letter of
Credit Requests) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. All telephonic notices to the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
The words “execution,”,
“execute” “signed,” “signature,” and words of like import in or related to any document to be signed
in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Acceptances, amendments
or other modifications, Notices of Borrowing, waivers and consents) shall be deemed to include electronic signatures, the electronic matching
of assignment terms and contract formations on electronic platforms approved by the Administrative Agent or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary
the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly
agreed to by the Administrative Agent pursuant to procedures approved by it; provided, further, that electronic signatures
from Lenders (including assignees) delivered pursuant to procedures in effect on the site maintained by the Administrative Agent with
respect to the Facilities as of the Closing Date shall be acceptable to the Administrative Agent. For the avoidance of doubt, delivery
of an executed counterpart of a signature page by facsimile or other electronic imaging means (e.g. “.pdf” or “.tif”)
shall be effective as delivery of a manually executed counterpart, and shall not be considered an electronic signature.
13.3 No
Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent, the Collateral
Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Credit Documents shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by law.
13.4 Survival
of Representations and Warranties. All representations and warranties made hereunder, in the other Credit Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
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13.5
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Payment of Expenses; Indemnification.
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(a) The
Borrower agrees (i) to pay or reimburse each of the Agents, the Lead Arrangers and the Joint Bookrunners for all their
reasonable and documented or invoiced out-of-pocket costs and expenses (without duplication) associated with the syndication of the
Initial Term Loan Facility and the Revolving Credit Facility and incurred in connection with the development, preparation, execution
and delivery of, and any amendment, supplement, modification to, waiver and/or enforcement of this Agreement and the other Credit
Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges of Davis
Polk & Wardwell LLP and, to the extent necessary, a single firm of local counsel in each appropriate local jurisdiction
(which may include a single special counsel acting in multiple jurisdictions) or otherwise retained with the Borrower’s
consent (such consent not to be unreasonably withheld or delayed), and (ii) to pay or reimburse each of the Agents for all
their reasonable and documented or invoiced out-of-pocket costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit Documents and any such other documents, including the reasonable
fees, disbursements and other charges of one firm or counsel to the Agents, and, to the extent necessary, a single firm of local
counsel in each appropriate local jurisdiction (which may include a single special counsel acting in multiple jurisdictions) or
otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld or delayed), and (iii) to
pay, indemnify and hold harmless each Lender, each Agent, the Letter of Credit Issuer, the Swingline Lender, each Lead Arranger and
each Joint Bookrunner and their respective Related Parties (without duplication) (the “Indemnified Parties”) from
and against any and all losses, claims, damages, liabilities or penalties (collectively, “Losses”) of any kind or
nature whatsoever and the reasonable and documented and invoiced out-of-pocket expenses, joint or several, to which any such
Indemnified Party may become subject, in each case to the extent of any such Losses and related expenses, to the extent arising out
of, resulting from, or in connection with any action, claim, litigation, investigation or other proceeding (including any inquiry or
investigation of the foregoing) (any of the foregoing, a “Proceeding”) (regardless of whether such Indemnified
Party is a party thereto or whether or not such Proceeding was brought by the Borrower, its equity holders, affiliates or creditors
or any other third person) and, subject to Section 13.5(e) to reimburse each such Indemnified Party promptly for any
reasonable and documented and invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to or
defending any of the foregoing (which in the case of legal fees shall be limited to the reasonable and documented or invoiced out-
of-pocket fees, expenses, disbursements and other charges of a single firm of counsel for all Indemnified Parties, taken as a whole
and, to the extent necessary, a single firm of local counsel in each appropriate local jurisdiction (which may include a single
special counsel acting in multiple jurisdictions) (and, in the case of an actual or perceived conflict of interest where the
Indemnified Party affected by such conflict notifies the Borrower of any existence of such conflict and in connection with the
investigating, responding to or defending any of the foregoing has retained its own counsel, of one other firm of counsel for such
affected Indemnified Party)), relating to the Transactions or the execution, delivery, enforcement, performance and administration
of this Agreement, the other Credit Documents and any such other documents or the use of the proceeds of the Loans or Letters of
Credit (all the foregoing in this clause (iii), collectively, the “indemnified liabilities”); provided
that this clause (iii) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from
any non-Tax claim; and provided, further, that the Borrower shall have no obligation hereunder to any Indemnified
Party with respect to indemnified liabilities to the extent arising from (a) the gross negligence, bad faith or willful
misconduct of such Indemnified Party or any of its Related Parties as determined in a final and non-appealable decision of a court
of competent jurisdiction, (b) a material breach of the obligations of such Indemnified Party or any of its Related Parties
under the terms of this Agreement or any other Credit Document by such Indemnified Party or any of its Related Parties as determined
in a final and non-appealable decision of a court of competent jurisdiction, (c) in addition to clause (b) above, in the
case of any Proceeding initiated by Holdings, the Borrower or any Restricted Subsidiary against the relevant Indemnified Party, a
breach of the obligations of such Indemnified Party or its Related Parties under the terms of this Agreement or any other Credit
Document as determined in a final and non- appealable decision by a court of competent jurisdiction, or (d) any Proceeding
brought by any Indemnified Party against any other Indemnified Party that does not involve an act or omission by Holdings, the
Borrower or its Restricted Subsidiaries; provided that each of the Agents, the Letter of Credit Issuer, the Swingline Lender,
the Lead Arrangers and the Joint Bookrunners, in each case to the extent fulfilling their respective roles in their capacities as
such, shall remain indemnified in respect of such a Proceeding, to the extent that none of the exceptions set forth in clause (a),
(b) or (c) of the immediately preceding proviso applies to such Person at such time. All amounts payable under this
Section 13.5(a) shall be paid within 30 days after receipt by the Borrower of written demand and an invoice relating
thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the
Loans and all other amounts payable hereunder and the termination of the Obligations.
(b) No
Credit Party nor any Indemnified Party shall have any liability for any special, punitive, indirect or consequential damages (including
any loss of profits, business or anticipated savings) in connection with this Agreement or any other Credit Document or arising out of
its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing shall not limit
the Borrower’s indemnification and reimbursement obligations to the Indemnified Parties pursuant to Section 13.5(a)(iii), to
the extent that such special, punitive, indirect or consequential damages are included in any claim by a third party unaffiliated with
any of the Indemnified Parties with respect to which the applicable Indemnified Party is entitled to indemnification under Section 13.5(a)(iii).
No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent that such damages have resulted from
the willful misconduct, bad faith or gross negligence of any Indemnified Party or any of its Related Parties as determined by a final
and non-appealable decision of a court of competent jurisdiction.
(c) No
Credit Party shall be liable for any settlement of any Proceeding effected without written consent of the Borrower (which consent
shall not be unreasonably withheld or delayed, it being understood that the withholding of consent due to non-satisfaction of any of
the conditions described in clauses (i) and (ii) of paragraph (d) below (with “the Borrower” being substituted
for “Indemnified Party” in each such clause) shall be deemed reasonable), but if settled with the Borrower’s
written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction for the plaintiff in any
such Proceeding, each Credit Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Losses
and reasonable and documented or invoiced legal or other out-of-pocket expenses by reason of such settlement or judgment in
accordance with and to the extent provided in the other provisions of this Section 13.5. If any Person has reimbursed any
Indemnified Party for any legal or other expenses in accordance with such request and there is a final and non-appealable
determination by a court of competent jurisdiction that the Indemnified Party was not entitled to indemnification or contribution
rights with respect to such payment pursuant to this Section 13.5, then the Indemnified Party shall promptly refund such
amount.
(d) No
Credit Party shall without the prior written consent of any Indemnified Party (which consent shall not be unreasonably withheld or delayed,
it being understood that the withholding of consent due to non- satisfaction of any of the conditions described in clauses (i) and
(ii) of this sentence shall be deemed reasonable), effect any settlement of any pending or threatened Proceeding in respect of which
indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release
of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability or claims that are
the subject matter of such Proceeding and (ii) does not include any statement as to or any admission of fault, culpability, wrongdoing
or a failure to act by or on behalf of any Indemnified Party.
(e) In
case any proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified
Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any proceeding; provided, however, that the
failure to do so will not relieve the Borrower from any liability that it may have to such Indemnified Party hereunder, except to the
extent that the Borrower is materially prejudiced by such failure. Notwithstanding the above, following such notification, the Borrower
may elect in writing to assume the defense of such proceeding, and, upon such election, the Borrower will not be liable for any legal
costs subsequently incurred by such Indemnified Party (other than reasonable costs of investigation and providing evidence) in connection
therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Party in a timely manner,
(ii) counsel provided by the Borrower reasonably determines its representation of such Indemnified Party would present it with a
conflict of interest or (iii) the Indemnified Party reasonably determines that there are actual conflicts of interest between the
Borrower and the Indemnified Party, including situations in which there may be legal defenses available to the Indemnified Party which
are different from or in addition to those available to the Borrower.
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13.6
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Successors and Assigns; Participations and Assignments.
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(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except that (i) except
as set forth in Section 10.3, the 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 the 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 this
Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter
of Credit), Participants (to the extent provided in Section 13.6(d)) and, to the extent expressly contemplated hereby, the Indemnified
Parties) 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 13.6(b)(ii), 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 its Commitments and the Loans at the time owing to it) with
the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the
Borrower; provided that no consent of the Borrower shall be required (x) for an assignment of any Term Loan to a Lender,
an Affiliate of a Lender or an Approved Fund (unless increased costs would result therefrom) or (y) if an Event of Default
under Section 11.1 or an Event of Default with respect to the Borrower under Section 11.5 has occurred and is continuing; provided, further,
that the Borrower shall be deemed to have consented to any such assignment of a Term Loan unless it shall object thereto by written
notice to the Administrative Agent within ten Business Days after having received written notice thereof; provided, further, that it
shall be understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in
order for such assignment to comply with Applicable Law, the Borrower would be required to obtain the consent of, or make any filing
or registration with, any Governmental Authority, and
(B) (i) in
the case of Term Loans or Commitments in respect of Term Loans, the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of any Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund or to any Purchasing
Borrower Party or any Affiliated Lender and (ii) in the case of Revolving Credit Commitments, Revolving Credit Loans, Additional/Replacement
Revolving Credit Commitments or Additional/Replacement Revolving Credit Loans, the Administrative Agent, the Swingline Lender and the
Letter of Credit Issuer.
Notwithstanding the foregoing
or anything to the contrary set forth herein, any assignment of any Loans to a Purchasing Borrower Party or any Affiliated Lender shall
also be subject to the requirements of Section 13.6(g).
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(ii)
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Assignments shall be subject to the following additional conditions:
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(A) except
in the case of (i) an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) an assignment of the
entire remaining amount of the assigning Lender’s Commitments or Loans of the applicable Class, the amount of the Commitments
or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not be less than, in the case of Revolving Credit
Commitments or Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments or Additional/Replacement Revolving
Credit Loans, $5,000,000 (or an integral multiple of $1,000,000 in excess thereof), or, in the case of Initial Term Loan
Commitments, Incremental Term Loan Commitments or Term Loans, $1,000,000 (or an integral multiple of $1,000,000 in excess
thereof), unless each of the Borrower and the Administrative Agent otherwise consents; provided that no such consent of the
Borrower shall be required if an Event of Default under Section 11.1 or Section 11.5 with respect to the Borrower has
occurred and is continuing; provided, further, that contemporaneous assignments to a single assignee made by
Affiliated Lenders or related Approved Funds or by a single assignor to related Approved Funds shall be aggregated for purposes of
meeting the minimum assignment amount requirements stated above;
(B) subject
to the terms of Section 13.7(c), the parties to each assignment shall (x) execute and deliver to the Administrative Agent an
Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent or (y) if previously agreed
with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Acceptance, in each case, together
with a processing fee of $3,500 (it being understood that such recordation fee shall not apply to any assignment by any of the Lead Arrangers,
Joint Bookrunners or any of their respective Affiliates hereunder in connection with the primary syndication of the Initial Term Loan
Facility); provided that the Administrative Agent may, in its sole discretion, elect to waive or reduce such processing and recordation
fee in the case of any assignment, including assignments effected pursuant to the provisions of Section 13.7;
(C) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax form required by Section 5.4 and an administrative
questionnaire in a form approved by the Administrative Agent in which the assignee designates one or more credit contacts to whom all
syndicate- level information (which may contain material non-public information about the Credit Parties and their Related Parties or
their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance
procedures and Applicable Laws, including Federal and state securities laws; and
(D) each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned, except that this clause (D) shall not prohibit any Lender from
assigning all or a portion of its rights and obligations among separate tranches of Loans (if any) on a non-pro rata basis.
Notwithstanding the foregoing
or anything to the contrary set forth herein (i) any assignment of any Loans or Commitments to a Purchasing Borrower Party or an
Affiliated Lender shall also be subject to the requirements set forth in Section 13.6(g) and (ii) no natural person may
be an Eligible Assignee with respect to any Loans or Commitments.
For the purpose of this Section 13.6(b),
the term “Approved Fund” has the following meaning:
“Approved
Fund” means any Person (other than a natural person) that is primarily engaged or advises funds or other investment
vehicles that are engaged in making, purchasing, holding or investing in commercial loans, bonds and similar extensions of credit or
securities in the ordinary course of business and that is administered, advised or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
(iii) Subject
to acceptance and recording thereof pursuant to Section 13.6(b)(vi), from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be
a party hereto, but shall continue to be entitled to the benefits and subject to the requirements of Sections 2.10, 2.11, 5.4 and 13.5);
provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute
a waiver or release of any claim of any other party hereto against such Defaulting Lender arising from such Lender’s having been
a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this
Section 13.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations
in accordance with Section 13.6(d).
(iv) By
executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed
to confirm to 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 its Initial Term
Loan Commitment, Incremental Term Loan Commitment, Revolving Credit Commitment and Additional/Replacement Revolving Credit
Commitment, and the outstanding balances of its Loans, in each case without giving pro forma effect to assignments thereof which
have not become effective, are as set forth in such Assignment and Acceptance, (B) except as set forth in (A) above, such
assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto, or
the financial condition of Holdings, the Borrower or any Subsidiary or the performance or observance by Holdings, the Borrower or
any Subsidiary of any of its obligations under this Agreement, any other Credit Document or any other instrument or document
furnished pursuant hereto; (C) such assignee represents and warrants that (x) it is legally authorized to enter into such
Assignment and Acceptance and (y) to the extent that such assignee has received, upon its request, a list of Disqualified
Lenders, it is not a Disqualified Lender or an Affiliate of a Disqualified Lender; (D) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 8.9 or
delivered pursuant to Section 9.1 and such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (E) such assignee will independently and without reliance
upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under
this Agreement; (F) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement and the other Credit Documents as are delegated to the
Administrative Agent and the Collateral Agent, respectively, 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.
(v) The
Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s
Office in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the Loans (and interest thereon) and any payment made by the
Letter of Credit Issuer under any Letter of Credit owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).
Further, the Register shall contain the name and address of the Administrative Agent and the lending office through which each such Person
acts under this Agreement. The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative
Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register,
as in effect at the close of business on the preceding Business Day, shall be available for inspection by (x) the Borrower and each
Letter of Credit Issuer, (y) any Agent and (z) any Lender (solely with respect to its own outstanding Loans and Commitments),
in each case, at any reasonable time and from time to time upon reasonable prior notice.
(vi) Upon
its receipt of and, if required, consent to, a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee,
the assignee’s completed administrative questionnaire and any tax form required by Section 5.4 (unless the assignee shall already
be a Lender hereunder) and any written consent to such assignment required by Section 13.6(b)(i), the Administrative Agent shall promptly
accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless and until it has been recorded in the Register as provided in this paragraph.
(c) Notwithstanding
any provision to the contrary, any Lender may assign to one or more wholly owned special purpose funding vehicles (each, an “SPV”)
all or any portion of its funded Loans (without the corresponding Commitment), without the consent of any Person or the payment of a fee,
by execution of a written assignment agreement in a form agreed to by such assigning Lender and such SPV, and may grant any such SPV the
option, in such SPV’s sole discretion, to provide the Borrower all or any part of any Loans that such assigning Lender would otherwise
be obligated to make pursuant to this Agreement. Such SPVs shall have all the rights which a Lender making or holding such Loans would
have under this Agreement, but no obligations. Any such assigning Lender shall remain liable for all its original obligations under this
Agreement, including its Commitment (although the unused portion thereof shall be reduced by the principal amount of any Loans held by
an SPV). Notwithstanding such assignment, the Administrative Agent and the Borrower may deliver notices to such assigning Lender (as agent
for the SPV) and not separately to the SPV unless the Administrative Agent and the Borrower are requested in writing by the SPV to deliver
such notices separately to it. Notwithstanding anything herein to the contrary, (i) neither the grant to the SPV nor the exercise
by any SPV of such option will increase the costs or expenses or otherwise change the obligations of the Borrower under this Agreement
and the other Credit Documents, except, in the case of Sections 2.10, 2.11, 3.5 or 5.4, where (A) the increase or change results
from a change in any Applicable Law after the SPV becomes an SPV and the assigning Lender notifies the Borrower in writing of such increase
or change no later than ninety (90) days after such change in Applicable Law becomes effective or (B) the grant was made with the
Borrower’s prior written consent, (ii) the assigning Lender shall for all purposes, including the approval of any amendment,
waiver or other modification of any provision of any Credit Document and the receipt of any notices provided by the Administrative Agent
and the Borrower (as agent for the SPV) remain the Lender of record hereunder and (iii) no SPV shall be liable for any indemnity
or similar payment obligation under this Agreement (all liability for which shall remain with the assigning Lender). The Borrower shall,
at the request of any such assigning Lender, execute and deliver to such Person as such assigning Lender may designate, a Note, substantially
in the form of Exhibit F-1 or F-2, in the amount of such assigning Lender’s original Note to evidence the Loans of such assigning
Lender and related SPV.
(d) (i) Any
Lender may, without the consent of the Borrower, the Administrative Agent, the Collateral Agent, any Letter of Credit Issuer or the
Swingline Lender, sell participations to one or more banks or other entities, other than to any Disqualified Lender (to the extent
that the list of Disqualified Lenders has been made available to the Lenders), Holdings, the Borrower or any of its Subsidiaries,
(each, 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 Borrower, the Administrative Agent, the Collateral Agent, the Letter
of Credit Issuer 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 a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement or any other Credit Document; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 13.1 that affects such Participant. Subject to paragraph (d)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits (and subject to the requirements) of Sections
2.10, 2.11, 5.4 and 13.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 13.6(b). To the extent permitted by Applicable Law, each Participant also shall be entitled to the benefits of
Section 13.8(b) as though it were a Lender; provided such Participant agrees to be subject to
Section 13.8(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Sections 2.10, 2.11, 3.5
or 5.4 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless
(A) the entitlement to a greater payment resulted from a change in any Applicable Law after the Participant became a Participant
and the participating Lender notifies the Borrower in writing of such entitlement to a greater payment no later than ninety (90) days
after such change in Applicable Law becomes effective or (B) the sale of the participation to such Participant is made with the Borrower’s
prior written consent. Each Lender having sold a participation in any of its Obligations, acting as a non-fiduciary agent of the Borrower
solely for this purpose, shall establish and maintain at its address a record of ownership, in which such Lender shall register by book
entry (A) the name and address of each such Participant (and each change thereto, whether by assignment or otherwise) and (B) the
rights, interest or obligation of each such Participant in any Obligation, in any Commitment and in any right to receive any interest
or principal payment hereunder (such register, a “Participant Register”); provided that no Lender shall have
any obligation to disclose all or any portion of its Participant Register (including the identity of any Participant or any information
relating to a Participant’s interest in any Obligation or Commitment) to any Person except to the extent that such disclosure is
necessary to establish that such Obligation or Commitment is in registered form under Section 5f.103-1(c) of the United States
Treasury Regulations. The entries in the Participant Register shall be conclusive, absent manifest error, and the parties shall treat
the Person listed in the Participant Register as the Participant for all purposes of this Agreement, notwithstanding notice to the contrary.
(e) Any
Lender may, without the consent of the Borrower, the Collateral Agent or the Administrative Agent, at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank or any other central bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. In order to facilitate
such pledge or assignment, the Borrower hereby agrees that, upon request of any Lender at any time and from time to time after the Borrower
has made its initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower’s own expense, a Note evidencing
the Loans owing to such Lender.
(f) Subject
to Section 13.16, the Borrower authorizes each Lender to disclose to any Participant, secured creditor of such Lender or assignee
(each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s possession
concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower and its Affiliates pursuant
to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower and its Affiliates in connection with such
Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement.
(g) (i) Notwithstanding
anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of its Term Loans to any
Purchasing Borrower Party or any Affiliated Lender in accordance with Section 13.6(b) (which assignment, if to a
Purchasing Borrower Party, will not, except for purposes of making the calculations set forth in Section 5.2(a)(ii), constitute
a prepayment of Loans for any purposes of this Agreement and the other Credit Documents); provided that:
(A) with
respect to any assignment to a Purchasing Borrower Party, no Event of Default has occurred or is continuing or would result therefrom;
(B) with
respect to any such assignment to a Purchasing Borrower Party, either (x) such Purchasing Borrower Party shall offer to all Lenders
within any Class of Term Loans (but not, for the avoidance of doubt, to every Class) to buy the Term Loans within such Class on
a pro rata basis based on the then outstanding principal amount of all Term Loans of such Class, pursuant to procedures to be reasonably
agreed between the Administrative Agent and the Borrower or (y) such assignment shall be effected pursuant to an open market purchase;
(C) the
assigning Lender and Purchasing Borrower Party or Non-Debt Fund Affiliate purchasing such Lender’s Term Loans, as applicable, shall
execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit I or such other form
as shall be reasonably acceptable to the Borrower and the Administrative Agent (an “Affiliated Lender Assignment and Acceptance”)
in lieu of an Assignment and Acceptance;
(D) for
the avoidance of doubt, Lenders shall not be permitted to assign Revolving Credit Commitments, Revolving Credit Loans, Additional/Replacement
Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments, Extended Revolving Credit Commitments or Extended Revolving
Credit Loans to any Purchasing Borrower Party or any Affiliated Lender;
(E) any
Term Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness of such assignment
and will thereafter no longer be outstanding for any purpose hereunder;
(F) no
Purchasing Borrower Party may use the proceeds from Revolving Credit Loans, Extended Revolving Credit Loans or Swingline Loans or Additional/Replacement
Revolving Credit Loans (or any other revolving credit facility that is effective in reliance on Section 10.1(a) or Section 10.1(u))
to purchase any Term Loans;
(G) no
Term Loan may be assigned to a Non-Debt Fund Affiliate pursuant to this Section 13.6(g) if, after giving pro forma effect to
such assignment, Non-Debt Fund Affiliates in the aggregate would own in excess of 25% of the Term Loans of any Class then outstanding
(determined as of the time of such purchase);
(H) any
purchases or assignments of Loans by a Purchasing Borrower Party or a Non-Debt Fund Affiliate made through “dutch auctions”
shall (i) be conducted pursuant to procedures to be established by the applicable “auction agent” that are consistent
with this Section 13.6(g) and are otherwise reasonably acceptable to the Borrower and (ii) require that such Person clearly
identify itself as a Purchasing Borrower Party or an Affiliated Lender, as the case may be, in any assignment and acceptance agreement
executed in connection with such purchases or assignments; and
(I) with
respect to any assignment to a Purchasing Borrower Party, the assigning Lender waives any right to bring actions (whether in contract,
tort or otherwise) against the Administrative Agent in its capacity as such or to challenge the Administrative Agent’s attorney-client
privilege.
(ii) Notwithstanding
anything to the contrary in this Agreement, no Non-Debt Fund Affiliate shall have any right to (A) attend (including by
telephone) any meeting or discussions (or portion thereof) among the Administrative Agent, the Collateral Agent or any Lender to
which representatives of the Credit Parties are not invited, (B) receive any information or material prepared by the
Administrative Agent, the Collateral Agent or any Lender or any communication by or among the Administrative Agent, the Collateral
Agent and/or one or more Lenders, except to the extent such information or materials have been made available to any Credit Party or
its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in
respect of its Loans required to be delivered to Lenders pursuant to Sections 2, 3, 4 and 5 of this Agreement) or (C) make or
bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its
capacity as a Lender, against the Administrative Agent or the Collateral Agent with respect to any duties or obligations or alleged
duties or obligations of such Agent under the Credit Documents or to challenge such Agent’s attorney-client
privilege.
(iii) By
its acquisition of Term Loans, a Non-Debt Fund Affiliate shall be deemed to have acknowledged and agreed that if a case under the Bankruptcy
Code is commenced against any Credit Party, such Credit Party shall seek (and each Non-Debt Fund Affiliate shall consent) to provide
that the vote of any Non-Debt Fund Affiliate (in its capacity as a Lender) with respect to any plan of reorganization or liquidation
of such Credit Party shall not be counted except that such Non-Debt Fund Affiliate’s vote (in its capacity as a Lender) may be
counted to the extent any such plan of reorganization or liquidation proposes to treat the Obligations held by such Non-Debt Fund Affiliate
in a manner that is less favorable to such Non-Debt Fund Affiliate than the proposed treatment of similar Obligations held by Lenders
that are not Affiliates of the Borrower; each Non-Debt Fund Affiliate hereby irrevocably appoints the Administrative Agent (such appointment
being coupled with an interest) as such Non-Debt Fund Affiliate’s attorney-in-fact, with full authority in the place and stead
of such Non-Debt Fund Affiliate and in the name of such Non-Debt Fund Affiliate (solely in respect of Loans and participations therein
and not in respect of any other claim or status such Non-Debt Fund Affiliate may otherwise have) from time to time in the Administrative
Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary
to carry out the provisions of this clause (iii);
(iv) Any
Lender may assign all or a portion of the Term Loans of any Class (but not any Revolving Credit Commitments, Revolving Credit Loans,
Additional/Replacement Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments, Extended Revolving Credit Loans or
Extended Revolving Credit Commitments) held by it to a Debt Fund Affiliate in accordance with Section 13.6(b).
(h) Notwithstanding
anything in Section 13.1 or the definition of “Required Lenders” to the contrary, for purposes of determining
whether the Required Lenders or any other requisite Class vote required by this Agreement have (i) consented (or not consented)
to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Credit Document or any departure
by any Credit Party therefrom, (ii) otherwise acted on any matter related to any Credit Document, or (iii) directed or required
the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect
to or under any Credit Document, (A) all Term Loans held by any Non-Debt Fund Affiliate shall be deemed to be not outstanding for
all purposes of calculating whether the Required Lenders (or requisite vote of any Class of Lenders) have taken any actions and (B) the
aggregate amount of Term Loans held by Debt Fund Affiliates will be excluded to the extent in excess of 49.9% of the amount required to
constitute “Required Lenders” (including in respect of a specific Class) (any such excess amount shall be deemed to be not
outstanding on a pro rata basis among all Debt Fund Affiliates).
(i) Upon
any contribution of Term Loans to the Borrower or any Restricted Subsidiary and upon any purchase of Term Loans by a Purchasing Borrower
Party, (A) the aggregate principal amount (calculated on the face amount thereof) of such Term Loans shall automatically be cancelled
and retired or extinguished by the Borrower on the date of such contribution or purchase (and, if requested by the Administrative Agent,
with respect to a contribution of Term Loans, any applicable contributing Lender shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant
to which the respective Lender assigns its interest in such Loans to the Borrower for immediate cancellation) and (B) the Administrative
Agent shall record such cancellation or retirement or extinguishment in the Register.
(j) The
Administrative Agent shall not (a) be required to serve as the auction agent for, or have any other obligations to participate in
(other than mechanical administrative duties), or facilitate any, “dutch auction” unless it is reasonably satisfied
with the terms and restrictions of such auction or (b) have any obligation to participate in, arrange, sell or otherwise facilitate,
and will have no liability in connection with, any open market purchases by any Purchasing Borrower Party.
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13.7
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Replacements of Lenders Under Certain Circumstances.
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(a) The
Borrower, at its sole expense, shall be permitted to replace any Lender (or any Participant) that (i) requests reimbursement
for amounts owing pursuant to Section 2.10, 2.11, 3.5 or 5.4, (ii) is affected in the manner described in
Section 2.10(a)(iii) and as a result thereof any of the actions described in such Section is required to be taken or
(iii) becomes a Defaulting Lender, with a replacement bank, financial institution or other institutional lender or investor
that is an Eligible Assignee; provided that (A) such replacement does not conflict with any Applicable Law, (B) no
Event of Default shall have occurred and be continuing at the time of such replacement, (C) the Borrower shall repay (or such
replacement bank, financial institution or other institutional lender or investor shall purchase, at par) all Loans and pay all
other amounts (other than any disputed amounts) owing to such replaced Lender hereunder (including, for the avoidance of doubt,
pursuant to Section 2.10, 2.11, 3.5 or 5.4, as the case may be) and under the other Credit Documents prior to the date of
replacement of such Lender, (D) such replacement bank, financial institution or other institutional lender or investor (if not
already a Lender) and the terms and conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent,
(E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 13.6 and
(F) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any
other Lender shall have against the replaced Lender or that the replaced Lender shall have against the Borrower and the other
parties for indemnity, contribution, payment of disputed and other unpaid amounts and otherwise.
(b) If
any Lender (such Lender a “Non-Consenting Lender”) has failed to consent to a proposed amendment, modification, supplement,
waiver, discharge or termination, which pursuant to the terms of Section 13.1 requires the consent of all of the Lenders affected
or each Lender and with respect to which the Required Lenders shall have granted their consent, then, provided no Event of Default
has occurred and is continuing, the Borrower shall have the right (unless such Non-Consenting Lender grants such consent), at its own
cost and expense, to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans and Commitments to
one or more Eligible Assignees reasonably acceptable to the Administrative Agent; provided that (i) all Obligations of the
Borrower under this Agreement owing to such Non-Consenting Lender being replaced shall be paid in full (including any applicable premium
under Section 5.1(b)) to such Non- Consenting Lender concurrently with such assignment, (ii) the replacement Lender shall purchase
the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest
thereon, (iii) the replacement Lender shall consent to the proposed amendment, modification, supplement, waiver, discharge or termination,
(iv) all Lenders required to have consented to such proposed amendment, modification, supplement, waiver, discharge or termination
(other than Non-Consenting Lenders which are simultaneously replaced) shall have consented thereto, and (v) the assignment of such
Non-Consenting Lenders Loans to one or more Eligible Assignees does not otherwise conflict with Applicable Law. In connection with any
such assignment, the Borrower, the Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply
with Section 13.6(a).
(c) Notwithstanding
anything herein to the contrary, each party hereto agrees that any assignment pursuant to the terms of this Section 13.7 may be effected
pursuant to an Assignment and Acceptance executed by the Borrower, the Administrative Agent and the assignee and that the Lender making
such assignment need not be a party thereto.
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13.8
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Adjustments; Set-off.
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(a) Except as otherwise set forth herein, if any Lender (a “Benefited Lender”)
shall at any time receive any payment of all or part of the Loans of any Class and/or the participations in letter of credit
obligations or swingline loans held by it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section 11.5, or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender’s Loans of such
Class or participations in letter of credit obligations or swingline loans, as applicable, such Benefited Lender shall
(i) notify the Administrative Agent of such fact, and (ii) purchase for cash at face value from the other Lenders a
participating interest in such portion of each such other Lender’s Loans of such Class or participations in letter of
credit obligations or swingline loans, as applicable, or shall provide such other Lenders with the benefits of any such collateral,
or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably in accordance with the aggregate principal of their respective Loans of the applicable Class or
participations in letter of credit obligations or swingline loans, as applicable; provided that, (A) if all or any portion of
such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but without interest and (B) the provisions of this
paragraph shall not be construed to apply to (x) any payment made by Holdings, the Borrower or any other Credit Party pursuant
to and in accordance with the express terms of this Agreement and the other Credit Documents, (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Loans, Commitments or participations in a
Letter of Credit Obligations or Swingline Loans to any assignee or participant or (z) any disproportionate payment obtained by
a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans
or Commitments of that Class or any increase in the Applicable Margin (or other pricing term, including any fee, discount or
premium) in respect of Loans or Commitments of Lenders that have consented to any such extension to the extent such transaction is
permitted hereunder. Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable
Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Credit Party rights
of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Credit
Party in the amount of such participation.
(b) After
the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by Applicable
Law, each Lender, the Swingline Lender and each Letter of Credit Issuer shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by Applicable Law, upon any amount becoming due and payable
by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise) to setoff and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, as the case may be; provided
that, in the event that any Defaulting Lender shall exercise any such right of set-off, (x) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending
such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative
Agent, the Swingline Lender, each Letter of Credit Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised
such right of set-off. Each Lender, the Swingline Lender and each Letter of Credit Issuer agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Person; provided that the failure to give such notice
shall not affect the validity of such set-off and application. Notwithstanding anything in this Section 13.8(b) to the contrary,
no Lender, no Swingline Lender and no Letter Credit Issuer will exercise, or attempt to exercise, any right of set off, banker’s
lien or the like against any deposit account or property of the Borrower or any other credit party held or maintained by such Lender,
Swingline Lender or Letter of Credit Issuer, as applicable, in each case to the extent the deposits or other proceeds of such exercise,
or attempt to exercise, any right of set off, banker’s lien or the like are, or are intended to be or are otherwise are held out
to be applied to the Obligations hereunder or otherwise secured by the Collateral, without the prior written consent of the Collateral
Agent.
13.9 Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile
or other electronic transmission (i.e., a “pdf” or “tif”)), and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with
Holdings, the Borrower and each Agent.
13.10 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13.11 Integration.
This Agreement and the other Credit Documents represent the agreement of Holdings, the Borrower, the Administrative Agent, the Collateral
Agent, the Letter of Credit Issuer and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Collateral Agent, the Administrative Agent, the Letter of Credit Issuer or any Lender relative to
subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents.
13.12 GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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13.13
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Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
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(a) submits
for itself and its property in any legal action or proceeding relating to this Agreement and the other Credit Documents to which it is
a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of
the State of New York located in the County of New York, the courts of the United States of America for the Southern District of New York
and appellate courts from any thereof;
(b) consents
that any such action or proceeding shall be brought in such courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the applicable party at its respective address set forth in Section 13.2
or at such other address of which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in
this Section 13.13 any special, exemplary, punitive or consequential damages.
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13.14
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Acknowledgments. Each of Holdings and the Borrower hereby acknowledges that:
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(a) it
has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Credit Documents;
(b) none
of the Administrative Agent, the Collateral Agent, any Lead Arranger, any Joint Bookrunner or any Lender has any fiduciary relationship
with or duty to Holdings or the Borrower arising out of or in connection with this Agreement or any of the other Credit Documents, and
the relationship between the Administrative Agent, the Collateral Agent and the Lenders, on one hand, and Holdings or the Borrower on
the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no
Joint Venture is created hereby or by the other Credit Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among Holdings, the Borrower and the Lenders.
13.15 WAIVERS
OF JURY TRIAL. HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, EACH LETTER OF CREDIT ISSUER, THE
SWINGLINE LENDER AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16 Confidentiality.
Each Agent, each Letter of Credit Issuer, the Swingline Lender and each Lender shall hold all non-public information furnished by or on
behalf of Holdings and the Borrower and their Subsidiaries in connection with such Lender’s evaluation of whether to become a Lender
hereunder or obtained by such Lender, such Agent or the Letter of Credit Issuer pursuant to the requirements of this Agreement (“Confidential
Information”) confidential in accordance with its customary procedure for handling confidential information of this nature and,
in the case of a Lender that is a bank, in accordance with safe and sound banking practices and in any event may make disclosure (a) as
required or requested by any Governmental Authority or representative thereof or regulatory authority having jurisdiction over it (including
any self-regulatory authority or representative thereof) or pursuant to legal process or otherwise as required by Applicable Law based
on the reasonable advice of counsel, (b) to (i) any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights and obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any
swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement
or payments hereunder; provided that, in the case of each of clauses (i) and (ii), the relevant Person is advised of and agrees
to be bound by the provisions of this Section 13.16 or other provisions at least as restrictive as this Section 13.16, (c) to
such Lender’s or such Agent’s or the Letter of Credit Issuer’s trustees, attorneys, professional advisors or independent
auditors or Related Parties, in each case who need to know such information in connection with the administration of the Credit Documents
and are informed of the confidential nature of such information or are subject to customary confidentiality obligations of professional
practice or who agree in writing to be bound by the terms of this paragraph (or language substantially similar to this paragraph) (and
to the extent a person’s compliance is within the control of an Agent, Letter of Credit Issuer or Lender, such Agent, Letter of
Credit Issuer or Lender will be responsible for such compliance), (d) with the written consent of the Borrower, (e) to the extent
such Confidential Information (i) becomes publicly available other than as a result of a breach of this Section 13.16, (ii) becomes
available to any Agent, any Lender, the Letter of Credit Issuer or any of their respective Affiliates on a non-confidential basis from
a source that is not subject to these confidentiality provisions or (iii) to the extent such information is independently developed
by such Agent, Lender, Letter of Credit Issuer, or Affiliate without the use of confidential information in breach of this Section 13.16
or (f) for purposes of establishing a “due diligence” defense; provided that unless specifically prohibited by
Applicable Law or court order, each Lender, each Agent and the Letter of Credit Issuer shall notify the Borrower of any request by any
Governmental Authority or representative thereof (other than any such request in connection with an audit or examination of the financial
condition of such Lender, such Agent or the Letter of Credit Issuer by such Governmental Authority) for disclosure of any such non-public
information prior to disclosure of such information; and provided, further, that, in no event shall any Lender, any Agent
or the Letter of Credit Issuer be obligated or required to return any materials furnished by Holdings, the Borrower or any Subsidiary
of the Borrower. Each Lender, each Agent and the Letter of Credit Issuer agrees that it will not provide to prospective Transferees, pledgees
referred to in Section 13.16 or to prospective direct or indirect contractual counterparties under Hedging Agreements to be entered
into in connection with Loans made hereunder any of the Confidential Information unless such Person is advised of and agrees to be bound
by the provisions of this Section 13.16. The confidentiality provisions contained herein shall not prohibit disclosures to any trustee,
administrator, collateral manager, servicer, backup servicer, lender, rating agency or secured party of any SPV in connection with the
evaluation, administration, servicing of, or the reporting on, the assets or securitization activities of such SPV; provided that
any such Person is advised of and agrees to be bound by the provisions of this Section 13.16.
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13.17
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Release of Collateral and Guarantee Obligations; Subordination of Liens.
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(a) The
Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any Collateral shall be
automatically released (i) in full, as set forth in clause (b) below, (ii) upon the sale, transfer or other
Disposition (including any disposition by means of a distribution or Restricted Payment) of such Collateral (including as part of or
in connection with any other sale, transfer or other Disposition permitted hereunder) to any Person other than another Credit Party,
to the extent such sale, transfer or other Disposition is made in compliance with the terms of this Agreement (and the Collateral
Agent may rely conclusively on a certificate to that effect provided to it by any Credit Party upon its reasonable request without
further inquiry), (iii) to the extent such Collateral is comprised of property leased to a Credit Party by a Person that is not a
Credit Party, upon termination or expiration of such lease, (iv) if the release of such Lien is approved, authorized or
ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance
with Section 13.1), (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the
release of such Guarantor from its obligations under the Guarantee (in accordance with the second succeeding sentence and
Section 25 of the Guarantee), (vi) as required by the Collateral Agent to effect any sale, transfer or other disposition
of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents and
(vii) to the extent such Collateral otherwise becomes Excluded Capital Stock or Excluded Property. Any such release shall not
in any manner discharge, affect, or impair the Obligations or any Liens (other than those being released) upon (or Obligations
(other than those being released) of the Credit Parties in respect of) all interests retained by the Credit Parties, including the
proceeds of any disposition, all of which shall continue to constitute part of the Collateral except to the extent otherwise
released in accordance with the provisions of the Credit Documents. Additionally, the Lenders hereby irrevocably agree that the
Guarantors shall be released from the Guarantee upon consummation of any transaction permitted hereunder resulting in such
Subsidiary ceasing to constitute a Restricted Subsidiary, or otherwise becoming an Excluded Subsidiary (including in connection with
any designation of an Unrestricted Subsidiary), or, in the case of a Previous Holdings, in accordance with the conditions set forth
in the definition of Holdings. The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to
execute and deliver any instruments, documents, and agreements necessary or desirable to evidence and confirm the release of any
Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any
Lender. Any representation, warranty or covenant contained in any Credit Document relating to any such Collateral or Guarantor shall
no longer be deemed to be repeated.
(b) Notwithstanding
anything to the contrary contained herein or any other Credit Document, when all Obligations (other than (i) Hedging Obligations
in respect of any Secured Hedging Agreements, (ii) Cash Management Obligations in respect of any Secured Cash Management Agreements
and (iii) any contingent obligations or contingent indemnification obligations not then due and payable) have been paid in full,
all Commitments have terminated or expired and no Letter of Credit shall be outstanding that is not Cash Collateralized or back-stopped
on terms reasonably satisfactory to the Letter of Credit Issuer, upon request of the Borrower, the Administrative Agent and/or the Collateral
Agent, as applicable, shall (without notice to, or vote or consent of, any Secured Party) take such actions as shall be required to release
its security interest in all Collateral, and to release all obligations under any Credit Document, whether or not on the date of such
release there may be any (i) Hedging Obligations in respect of any Secured Hedging Agreements, (ii) Cash Management Obligations
in respect of any Secured Cash Management Agreements and (iii) any contingent obligations or contingent indemnification obligations
not then due and payable. Any such release of Obligations shall be deemed subject to the provision that such Obligations shall be reinstated
if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor,
or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower
or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(c) Notwithstanding
anything to the contrary contained herein or in any other Credit Document, upon reasonable request of the Borrower in connection with
any Liens permitted by the Credit Documents, the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party)
take such actions as shall be required to give effect to (by means of an acknowledgment reasonably satisfactory to the Administrative
Agent), or to subordinate the Lien on any Collateral to, any Lien permitted under Sections 10.2(c), (e) (solely as it relates to
clauses (c) and (f) of Section 10.2), (f), (l), (m), (n), (o), (q), (r), (s), (v), (w), (x), (y), (aa), (ff) and clauses
(d), (e), (f), (g), (i) and (n) of the definition of “Permitted Encumbrances.” In addition, notwithstanding
anything to the contrary contained herein or in any other Credit Document, upon reasonable request of the Borrower, the Administrative
Agent and the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party) enter into subordination or intercreditor
agreements with respect to Indebtedness to the extent the Administrative Agent or Collateral Agent is otherwise contemplated herein as
a party to such subordination or intercreditor agreements, in each case to the extent consistent with the provisions of Section 12.15.
(d) Notwithstanding
the foregoing or anything in the Credit Documents to the contrary, at the direction of the Required Lenders, the Administrative Agent
may, in exercising remedies, take any and all necessary and appropriate action to effectuate a credit bid of all Loans (or any lesser
amount thereof) for the Credit Parties’ assets in a bankruptcy, foreclosure or other similar proceeding, forbear from exercising
remedies upon an Event of Default, or in a proceeding under any Debtor Relief Law, enter into a settlement agreement on behalf of all
Lenders.
13.18 USA
PATRIOT ACT. Each Lender hereby notifies the Borrower and each Credit Party that pursuant to the requirements of the PATRIOT Act,
it is required to obtain, verify and record information that identifies the Borrower and each Credit Party, which information includes
the name and address of the Borrower and each Credit Party and other information that will allow such Lender to identify the Borrower
and Credit Parties in accordance with the PATRIOT Act.
13.19 Legend.
THE TERM LOANS WILL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE
DATE AND YIELD TO MATURITY OF THESE TERM LOANS MAY BE OBTAINED BY WRITING TO THE BORROWER AT THE ADDRESS SET FORTH IN SECTION 13.2.
13.20 Payments
Set Aside. To the extent that any payment by or on behalf of Holdings or the Borrower is made to any Agent or any Lender, or any Agent
or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees
to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from
time to time in effect.
13.21 Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial
Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion
powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:the application of
any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to
it by any party hereto that is an EEA Financial Institution; and
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(b)
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the effects of any Bail-in Action on any such liability, including, if applicable:
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(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 EEA 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 Credit
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 EEA Resolution
Authority.
13.22 Execution
by Target, Amplify and Subsidiaries. Notwithstanding any other provision contained herein, the Target, Amplify, Surviving
Company and the Subsidiaries of the Target, Amplify and Surviving Company shall have no rights or obligations under any of the
Credit Documents until the consummation of the Mergers, and any covenants hereunder relating to the Target, Amplify and the
Subsidiaries of the Target and Amplify in any Credit Document shall not become effective until such time. Upon consummation of the
Mergers, the signature pages to this Agreement and each other Credit Documents executed on behalf of the Target, Amplify and
any of their respective Subsidiaries shall be deemed released.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each of the parties hereto
has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
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CRACKLE PURCHASER CORP., as Holdings
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[SIGNATURE PAGE TO CREDIT AGREEMENT]
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CRACKLE MERGER SUB I
CORP., as initial Borrower prior to the consummation of the Amplify Merger
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WIREPATH LLC, after giving effect to the Amplify Merger, as Borrower
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[SIGNATURE PAGE TO CREDIT AGREEMENT]
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UBS AG, STAMFORD BRANCH
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as Administrative
Agent, Collateral Agent, Letter of Credit Issuer and Lender
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as Letter of Credit Issuer and Lender
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[SIGNATURE PAGE TO CREDIT AGREEMENT]
[SIGNATURE PAGE TO CREDIT AGREEMENT]
Exhibit 10.6
Execution Version
INCREMENTAL AGREEMENT
NO. 3
TO CREDIT AGREEMENT
INCREMENTAL AGREEMENT NO.
3 TO CREDIT AGREEMENT, dated as of August 1, 2019 (this “Agreement”), by and among each of the Initial 2019 Incremental
Term Loan Lenders (as defined below), the Incremental Revolving Credit Commitment Increase Lender (as defined below), the Borrower (as
defined below), each Guarantor as of the date hereof, each Letter of Credit Issuer as of the date hereof, and UBS AG, Stamford Branch
(“UBS”), as the Administrative Agent, Collateral Agent and Swingline Lender.
WHEREAS, reference is hereby
made to the Credit Agreement, dated as of August 4, 2017 (as amended by the Amendment Agreement, dated as of November 1, 2017,
as further amended by the Incremental Agreement No. 1, dated as of February 5, 2018, as further amended by the Incremental
Agreement No. 2, dated as of October 31, 2018, and as further amended, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among Crackle Purchaser LLC (formerly known as Crackle Purchaser Corp.),
a Delaware limited liability company (“Holdings”), Wirepath LLC, a Delaware limited liability company (the “Borrower”),
the Lenders and Letter of Credit Issuers from time to time party thereto, UBS, as the Administrative Agent, Collateral Agent and Swingline
Lender, and the other parties thereto;
WHEREAS, the Borrower desires
(i) pursuant to Section 2.14 of the Credit Agreement, to obtain Incremental Term Loans under the Credit Agreement in an aggregate
principal amount of $390,000,000 from the Initial 2019 Incremental Term Loan Lender (the “2019 Incremental Term Loans”),
(ii) pursuant to Section 2.14 of the Credit Agreement, to obtain an Incremental Revolving Credit Commitment Increase under
the Credit Agreement in an aggregate principal amount of $10,000,000 from the Incremental Revolving Credit Commitment Increase Lender
and (iii) to make certain other amendments to the Credit Agreement;
WHEREAS, pursuant to the
Agreement and Plan of Merger, dated as of May 8, 2019 (together with all exhibits, annexes, schedules and other disclosure letters
thereto, collectively, as modified, amended, supplemented, consented to or waived, the “Acquisition Agreement”), by
and among Wirepath Home Systems, LLC, a North Carolina limited liability company and a subsidiary of the Borrower (“Parent”),
Copper Merger Sub Inc., a Delaware corporation and direct wholly owned subsidiary of Parent (“Merger Sub”), and Control4
Corporation, a Delaware corporation (the “Target”), the Borrower intends to acquire (the “Acquisition”),
indirectly all of the capital stock and the other equity interests of the Target from the equityholders thereof (collectively, the “Target
Equityholders”), and it is agreed that such Acquisition shall be a “Permitted Acquisition” and a “Limited
Condition Acquisition” under the Credit Agreement;
WHEREAS, in connection with
the foregoing, (i) Merger Sub will merge with and into the Target (the “Merger”), with the Target being the surviving
entity, (ii) except with respect to any equity holders of the Target and its subsidiaries, including management of the Target and
its subsidiaries, who roll over equity interests of the Target or cash proceeds from the 2019 Transactions (as defined below) into equity
interests in a parent of Holdings, the Target Equityholders will receive cash in exchange for their capital stock and other equity interests
in the Target (the “Acquisition Consideration”) and the Target will become a wholly owned indirect subsidiary of the
Borrower;
WHEREAS, immediately after
giving effect to the Merger, the principal, accrued and unpaid interest, fees, premium, if any, and other amounts, other than (i) contingent
obligations not then due and payable and that by their terms survive the termination of the Existing Credit Facility (as defined below)
and (ii) certain existing letters of credit outstanding under the Existing Credit Facility that on the Closing Date will be grandfathered
into, or backstopped by, the Revolving Credit Facility or cash collateralized in a manner reasonably satisfactory to the issuing banks
thereof, under that certain Amended and Restated Loan and Security Agreement, dated as of June 17, 2013 (as amended, restated, supplemented
or otherwise modified from time to time, the “Existing Credit Agreement”), between Silicon Valley Bank, a California
corporation, and the Target, will be repaid in full in cash in connection with the 2019 Transactions and all commitments to extend credit
under the Existing Credit Agreement will be terminated and any security interests and guarantees in connection therewith shall be terminated
and/or released (the foregoing transactions, collectively, the “Refinancing”);
WHEREAS, the proceeds of
the 2019 Incremental Term Loans will be used by the Borrower, together with cash on hand, on the Third Incremental Agreement Effective
Date to (a) pay a portion of the Acquisition Consideration, (b) fund the Refinancing, (c) pay the fees and expenses incurred
in connection therewith and (d) repay Revolving Credit Loans outstanding under the Revolving Credit Facility as of the Third Incremental
Agreement Effective Date and/or fund cash to the balance sheet up to $15,000,000 in the aggregate (the transactions set forth in the
third through sixth preceding recitals in this Agreement, collectively, the “2019 Transactions”);
WHEREAS, in accordance with
Sections 2.14(e) and 13.1 of the Credit Agreement, Holdings, the Borrower, the Administrative Agent, the Letter of Credit Issuers,
the Swingline Lender, the Initial 2019 Incremental Term Loan Lenders and the Incremental Revolving Credit Commitment Increase Lender
have agreed to amend the Credit Agreement in connection with, and to facilitate the incurrence of, such 2019 Incremental Term Loans and
to facilitate the effectiveness of, such Incremental Revolving Credit Commitment Increase; and
NOW, THEREFORE, the parties hereto
agree as follows:
Section 1 Defined
Terms; References.
(a) Unless
otherwise specifically defined herein or, as applicable, in the 2019 Incremental Commitment Letter, each term used herein which is defined
in the Credit Agreement has the meaning assigned to such term in the Amended Credit Agreement (as defined below). The rules of construction
and other interpretive provisions specified in Sections 1.2, 1.3, 1.4, 1.5, 1.6, 1.7 and 1.8 of the Amended Credit Agreement shall apply
to this Agreement, including terms defined in the preamble and recitals hereto.
(b) As
used in this Agreement, the following terms have the meanings specified below:
“2019 Incremental Term Loan
Commitment” shall have the meaning provided in Section 2(a) hereof.
“Amended Credit Agreement”
shall mean the Credit Agreement, as amended by this Agreement.
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation,
which certification shall be substantially similar in substance to the form of certification regarding Beneficial Owners of Legal Entity
Customers included as Appendix A to the Beneficial Ownership Regulation.
“Beneficial
Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
“Incremental
Joint Lead Arrangers” shall mean UBS Securities LLC, SunTrust Robinson Humphrey, Inc. and BMO Capital Markets Corp., as
Joint Lead Arrangers and Joint Bookrunners under (and as defined in) the 2019 Incremental Commitment Letter.
“Initial
2019 Incremental Term Loan Lenders” shall have the meaning provided in Section 2(a) hereof.
“Specified
Acquisition Agreement Representations” shall mean the representations and warranties made by, or with respect to, the Target
and its subsidiaries in the Acquisition Agreement that are material to the interests of the Initial 2019 Incremental Term Loan Lenders,
but only to the extent that the Borrower (or its affiliate) has the right (taking into account any applicable cure provisions) to terminate
its obligations under the Acquisition Agreement or to decline to consummate the Acquisition (in each case, in accordance with the terms
thereof) as a result of a breach of such representations and warranties in the Acquisition Agreement.
“Third
Incremental Agreement Effective Date” shall have the meaning provided in Section 10 hereof.
Section 2. Third
Incremental Agreement Effective Date Transactions and Incremental Revolving Credit Commitment Increase.
(a) With
effect from and including the Third Incremental Agreement Effective Date, the Persons identified on the signature pages hereof as
the “Initial 2019 Incremental Term Loan Lenders” (the “Initial 2019 Incremental Term Loan Lenders”) shall
each become party to the Amended Credit Agreement as a “Lender” and a “2019 Incremental Term Loan Lender”, shall
have an Incremental Term Loan Commitment in the amount set forth opposite its name on Schedule 1 hereto (such Incremental Term Loan Commitment,
a “2019 Incremental Term Loan Commitment”) and shall have all of the rights and obligations of a “Lender”
and a “2019 Incremental Term Loan Lender” under the Amended Credit Agreement and the other Credit Documents.
(b) On
the Third Incremental Agreement Effective Date, the Lender identified on the signature pages hereof as the “Incremental Revolving
Credit Commitment Increase Lender” (such Lender, the “Incremental Revolving Credit Commitment Increase Lender”)
shall provide an Incremental Revolving Credit Commitment Increase (the “Incremental Revolving Credit Commitment Increase”)
under the Credit Agreement in an aggregate principal amount of $10,000,000 (such additional Revolving Credit Commitments, the “Incremental
Revolving Credit Commitment Increase Commitments”), which Incremental Revolving Credit Commitment Increase Commitments shall
constitute Revolving Credit Commitments under the Amended Credit Agreement and shall be treated the same as (including with respect to
maturity date thereof), and part of, the Revolving Credit Commitments being hereby increased.
Section 3. Third
Incremental Agreement Effective Date Transactions.
(a) On
the Third Incremental Agreement Effective Date, each of the Initial 2019 Incremental Term Loan Lenders, severally and not jointly, shall
make the 2019 Incremental Term Loans to the Borrower in accordance with this Section 3(a) by delivering to the Borrower immediately
available funds in Dollars in an amount equal to its respective 2019 Incremental Term Loan Commitment.
(b) The
2019 Incremental Term Loans made on the Third Incremental Agreement Effective Date pursuant to Section 3(a) shall constitute
Eurodollar Loans having an initial Interest Period ending on September 30, 2019.
Section 4. Amendment;
Borrowings on Third Incremental Agreement Effective Date.
(a) Each
of the parties hereto agrees that, effective on the Third Incremental Agreement Effective Date (and it being understood that the Lenders
party hereto, including the Initial 2019 Incremental Term Loan Lenders, constitute Required Lenders for purposes of such amendment),
the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken
text) and to add the double-underlined text (indicated textually in the same manner as the following example: added
double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.
(b) With
effect from the Third Incremental Agreement Effective Date, each 2019 Incremental Term Loan made on the Third Incremental Agreement Effective
Date in accordance with Section 3(a) hereof shall constitute, for all purposes of the Amended Credit Agreement, an Incremental
Term Loan made pursuant to the Amended Credit Agreement and this Agreement; provided that each such 2019 Incremental Term Loan
shall constitute a separate Class of Loans from the “Initial Term Loans” for all purposes of the Amended Credit Agreement.
Any amount of the 2019 Incremental Term Loans that is subsequently repaid or prepaid may not be reborrowed. For avoidance of doubt, the
2019 Incremental Term Loans shall participate in any mandatory prepayments under the Amended Credit Agreement on a pro rata basis with
the Initial Term Loans.
(c) On
the Third Incremental Agreement Effective Date, immediately after giving effect to the Incremental Revolving Credit Commitment Increase,
the outstanding Revolving Credit Exposure shall be reallocated on a pro rata basis among the Revolving Credit Lenders (which shall include
the Incremental Revolving Credit Commitment Increase Lender) and each Revolving Credit Lender’s participations under the Credit
Agreement in outstanding Letters of Credit and Swingline Loans will be automatically deemed to be assigned pursuant to Section 2.14(f)(ii) of
the Credit Agreement.
(d) The
2019 Incremental Term Loan Commitments provided for hereunder shall terminate on the Third Incremental Agreement Effective Date immediately
upon the borrowing of the 2019 Incremental Term Loans pursuant to Section 3(a).
(e) This
Amendment constitutes notice to the Administrative Agent pursuant to Sections 2.14(a) and 2.14(d) of the Credit Agreement.
Section 5. Effect
of Agreement; Reaffirmation; Etc.
(a) This
Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of
the Lenders or the Agents under the Credit Agreement or under any other Credit Document and, except as expressly set forth herein or
in the Amended Credit Agreement, shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or of any other Credit Document, all of
which are ratified and affirmed in all respects and shall continue in full force and effect. Without limiting the foregoing, (i) each
Credit Party acknowledges and agrees that (A) each Credit Document to which it is a party is hereby confirmed and ratified and shall
remain in full force and effect according to its respective terms (in the case of the Credit Agreement, as amended hereby) and (B) the
Security Documents do, and all of the Collateral does, and in each case shall continue to, secure the payment of all Obligations (including,
for the avoidance of doubt, the 2019 Incremental Term Loans made on the Third Incremental Agreement Effective Date and the Incremental
Revolving Credit Commitment Increase Commitments effective on the Third Incremental Agreement Effective Date) on the terms and conditions
set forth in the Security Documents, and hereby ratifies the Liens and security interests granted by it pursuant to the Security Documents
and (ii) each Guarantor hereby confirms and ratifies its continuing unconditional obligations as Guarantor under each Guarantee
to which it is a party with respect to all of the Obligations (including, for the avoidance of doubt, the 2019 Incremental Term Loans
made on the Third Incremental Agreement Effective Date and the Incremental Revolving Credit Commitment Increase Commitments effective
on the Third Incremental Agreement Effective Date).
(b) From
and after the Third Incremental Agreement Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any
other Credit Document shall be deemed a reference to the Credit Agreement, as amended hereby. From and after the Third Incremental Agreement
Effective Date, this Agreement shall constitute a “Credit Document” for all purposes of the Credit Agreement and the other
Credit Documents. This Agreement shall constitute an “Incremental Agreement” for purposes of Section 2.14(e) of
the Credit Agreement.
Section 6. Representations
of Credit Parties. Each of the Credit Parties hereby represents and warrants that as of the Third Incremental Agreement Effective
Date:
(a) the
representations and warranties set forth in Section 8 of the Amended Credit Agreement and in each other Credit Document are true
and correct in all material respects on and as of the Third Incremental Agreement Effective Date with the same effect as though made
on and as of such date, except where such representations and warranties expressly relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations
and warranties are qualified by materiality, “Material Adverse Effect” or similar language, in which case such representations
and warranties shall be true and correct in all respects (and except that for purposes of this paragraph, (i) the representations
and warranties contained in Section 8.16 of the Credit Agreement shall be deemed to refer to the Third Incremental Agreement Effective
Date instead of the Closing Date and the references to Transactions will be deemed to refer to the 2019 Transactions contemplated by
this Agreement and (ii) (1) with respect to the Specified Representations, the “Closing Date” shall be deemed to
refer to the Third Incremental Agreement Effective Date instead of the Closing Date, (2) the “Transactions” shall instead
refer to the 2019 Transactions and (3) the “granting of the Liens on the Collateral by the Credit Parties on the Closing Date”
also shall include the existence of the Liens on the Collateral on the Third Incremental Agreement Effective Date granted by the Credit
Parties prior to the Third Incremental Agreement Effective Date) as of such date or such earlier date, as applicable; provided that
the only representations and warranties the making and accuracy of which shall be a condition to the availability and funding of
the 2019 Incremental Term Loans on the Third Incremental Agreement Effective Date shall be those representations and warranties referred
to in Section 10(I)(j) below;
(b) (i) with
respect to the 2019 Incremental Term Loans, no Event of Default under Section 11.1 or Section 11.5 of the Credit Agreement occurred
or was continuing on May 8, 2019 and (ii) with respect to the Incremental Revolving Credit Commitment Increase Commitments,
no Event of Default under the Credit Agreement has occurred or is continuing;
(c) Each
Credit Party party hereto has the corporate or other organizational power and authority to execute, deliver and carry out the terms and
provisions of this Agreement, and the other Credit Documents to which it is a party and has taken all necessary corporate or other organizational
action to authorize the execution and delivery of this Agreement and the performance of this Agreement, the Amended Credit Agreement
and any other Credit Documents to which it is a party. This Agreement has been duly authorized, executed and delivered by each Credit
Party party hereto and constitutes the legal, valid and binding obligations of each such Credit Party enforceable against it in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting the enforceability of creditors’ rights generally and general principles of equity (whether considered
in a proceeding in equity or law).
Section 7.
Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided that,
notwithstanding the foregoing, it is understood and agreed that (a) the interpretation of the definition of “Company
Material Adverse Effect” (as defined in Section 10(d) below) and whether or not a Company Material Adverse Effect
has occurred, (b) the determination of the accuracy of any Specified Acquisition Agreement Representations and whether as a
result of any inaccuracy thereof the Borrower (or its affiliate) has the right (taking into account any applicable cure provisions)
to terminate its obligations under the Acquisition Agreement or decline to consummate the Acquisition and (c) the determination
of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement, in each case shall 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 thereof.
Section 8. Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including
by facsimile or other electronic transmission (i.e., a “pdf” or “tif”)), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile
or other electronic transmission shall be effective as delivery of a manually signed counterpart to this Agreement.
Section 9. Miscellaneous.
Sections 13.5, 13.13 and 13.15 of the Credit Agreement are incorporated herein by reference and apply mutatis mutandis.
Section 10. Third
Incremental Agreement Effective Date Conditions. The obligation of each Initial 2019 Incremental Term Loan Lender to make the 2019
Incremental Term Loan to be made by it pursuant to Section 3(a) of this Agreement in accordance with its respective 2019 Incremental
Term Loan Commitment and the obligation of the Incremental Revolving Credit Commitment Increase Lender to provide its respective Incremental
Revolving Credit Commitment Increase Commitments, shall become effective on the date (the “Third Incremental Agreement Effective
Date”) when each of the following conditions shall have been satisfied (or waived by all 2019 Incremental Term Loan Lenders
and Incremental Revolving Credit Commitment Increase Lenders, as applicable):
(I) with respect to the obligation of each Initial
2019 Incremental Term Loan Lender to make the 2019 Incremental Term Loan:
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(a)
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the Administrative Agent and the Incremental Joint Lead Arrangers
shall have received:
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(i) from
the Administrative Agent, the Initial 2019 Incremental Term Loan Lenders, the Incremental Revolving Credit Commitment Increase Lender
and each Credit Party as of the date hereof either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement; and
(ii) from
each Target Guarantor (as defined below), (x) a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement
substantially in the form of Annex B, Exhibit 1 or Annex A, as applicable, to the respective agreement and (y) a counterpart
signature page to the Intercompany Note, in each case duly executed and delivered by an Authorized Officer of such Target Guarantor
on the Third Incremental Agreement Effective Date;
(b) all
fees required to be paid on the Third Incremental Agreement Effective Date pursuant to the 2019 Incremental Fee Letter (as defined in
the 2019 Incremental Commitment Letter) and reasonable out-of-pocket expenses required to be paid on the Third Incremental Agreement
Effective Date pursuant to the 2019 Incremental Commitment Letter, and with respect to expenses, to the extent invoiced at least three
business days prior to the Third Incremental Agreement Effective Date (except as otherwise reasonably agreed by the Borrower), shall,
upon the borrowing of the 2019 Incremental Term Loans and effectiveness of the Incremental Revolving Credit Commitment Increase, have
been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the 2019 Incremental Term Loans);
(c) the
Administrative Agent shall have received an executed Notice of Borrowing with respect to each of the 2019 Incremental Term Loans setting
forth the information specified in Section 2.3 of the Credit Agreement (with such modifications as are appropriate to reflect the
2019 Incremental Term Loans and the use of proceeds thereof to fund a Limited Condition Acquisition) at least two Business Days prior
to the Borrowing;
(d) No
Company Material Adverse Effect (as defined in the Acquisition Agreement) shall have occurred after May 8, 2019;
(e) the
Acquisition shall have been consummated, or shall be consummated substantially simultaneously with, the initial borrowing of the 2019
Incremental Term Loans, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any
modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents,
waivers or requests (including the effects of any such requests) by the Borrower (or its affiliates) that are materially adverse to the
interests of the Initial 2019 Incremental Term Loan Lenders (it being understood that any modification, amendment, supplement, consent,
waiver or request by the Borrower (or its affiliates) to the definition of Company Material Adverse Effect shall be deemed to be materially
adverse to the interests of the Initial 2019 Incremental Term Loan Lenders and the Incremental Joint Lead Arrangers), unless consented
to in writing by the Incremental Joint Lead Arrangers (such consent not to be unreasonably withheld or delayed); provided that,
without limiting any other rights and/or obligations hereunder, any modification, amendment, supplement, consent, waiver or request by
the Borrower (or its affiliates) under the Acquisition Agreement that results in a reduction in the Merger Consideration (as defined
in the Acquisition Agreement as in effect on May 8, 2019) shall not be deemed to be materially adverse to the interests of the Initial
2019 Incremental Term Loan Lenders or the Incremental Joint Lead Arrangers; provided, further, that any such reduction
in the Merger Consideration shall be applied (i) first to reduce the amount of the Equity Contribution (as defined in the 2019 Incremental
Commitment Letter) to 40% of the Total Capitalization (as defined in the 2019 Incremental Commitment Letter) and (ii) thereafter,
(x) 60% to reduce the amount of commitments in respect of the 2019 Incremental Term Loans and (y) 40% to reduce the amount
of the Equity Contribution;
(f) subject
in all respects to the Limited Conditionality Provisions (as defined in the 2019 Incremental Commitment Letter), the Administrative Agent
shall have received:
(i) a
certificate of Holdings, the Borrower and the other Guarantors as of the date hereof (including the Target Guarantors (as defined below))
(each, a “Certifying Credit Party”), dated the Third Incremental Agreement Effective Date, substantially in the form
of Exhibit E to the Credit Agreement (with such modifications as are appropriate to reflect the 2019 Incremental Term Loans and
the use of proceeds thereof to fund a Limited Condition Acquisition, and, in the case of the Borrower, certifying that, after giving
effect to the 2019 Transactions, as if the 2019 Transactions were consummated on May 8, 2019, the full amount of the 2019 Incremental
Term Loan Commitments may be incurred on the Third Incremental Agreement Effective Date (it being understood and agreed that the Acquisition
is a Limited Condition Acquisition under the Credit Agreement)), and attaching the documents referred to in clauses (ii), (iii) and
(iv) below;
(ii) a
certificate of good standing (to the extent such concept exists) from the applicable secretary of state or other relevant Governmental
Authority of the jurisdiction of organization of each Certifying Credit Party;
(iii) a
copy of the resolutions of the Board of Directors or other governing body, as applicable, of each Certifying Credit Party (or a duly
authorized committee thereof) authorizing (x) the
execution, delivery and performance of this Agreement (and any agreements relating thereto) to which it is a party and (y) in
the case of the Borrower, the borrowing of the 2019 Incremental Term Loans contemplated hereunder;
(iv) true
and complete copies of the Organizational Documents of each Certifying Credit Party; provided that the delivery of such Organizational
Documents shall not be required to the extent an Authorized Officer of such Certifying Credit Party shall have certified that such Organizational
Documents are unchanged since last delivered to the Administrative Agent;
(v) legal
opinions of Simpson Thacher & Bartlett LLP, New York counsel to Holdings, the Borrower and its Subsidiaries, in form and substance
similar to the opinion delivered on the Closing Date and reasonably satisfactory to the Administrative Agent, the 2019 Incremental Term
Loan Lenders and the Incremental Joint Lead Arrangers; and
(vi) a
solvency certificate, dated the Third Incremental Agreement Effective Date and after giving effect to the 2019 Transactions, substantially
in the form of Exhibit B attached hereto, of the chief financial officer of the Borrower;
(g) the
Initial 2019 Incremental Term Loan Lenders and the Incremental Joint Lead Arrangers shall have received (a) audited consolidated
balance sheets of the Target and its consolidated subsidiaries as at the end of, and related audited consolidated statements of operations,
comprehensive income, stockholders’ equity and cash flows of the Target and its consolidated subsidiaries for the fiscal years
ended December 31, 2018 and December 31, 2017, (b) an unaudited consolidated balance sheet of the Target and its consolidated
subsidiaries as at the end of the fiscal quarter ended March 31, 2019, and the related unaudited consolidated statement of operations,
comprehensive income and cash flows of the Target and its consolidated subsidiaries for such fiscal quarter (without the requirement
to include footnote disclosure) and (c) a pro forma consolidated balance sheet and related pro forma consolidated statement of income
and cash flows of the Borrower as of, and for the twelve-month period ended March 31, 2019, prepared after giving effect to the
2019 Transactions as if the 2019 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 statements of income and cash flows), provided that no such pro forma financial statement shall
be required to 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, Business Combinations (formerly SFAS 141R), tax adjustments, deferred taxes or other similar pro forma adjustments. The Initial
2019 Incremental Term Loan Lenders hereby acknowledge receipt of the audited financial statements referred to in clause (a) above
for the fiscal years ended December 31, 2018 and December 31, 2017, the unaudited financial statements referred to in clause
(b) above for the fiscal quarter ended March 31, 2019 and the pro forma financial statements referred to in clause (c) above
for the twelve-month period ended March 31, 2019.
(h) subject
in all respects to the Limited Conditionality Provisions (as defined in the 2019 Incremental Commitment Letter), all UCC or other applicable
financing statements, reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens on the Capital
Stock and assets of the Target Guarantors, intended to be created by any Security Document and to perfect such Liens to the extent required
by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration
or recording. The certificated equity securities of the Target and any Target Guarantors (to the extent required by the Credit Agreement),
if any, shall have been delivered to the Collateral Agent (provided that such certificated equity securities will be required
to be delivered on the Third Incremental Agreement Effective Date only to the extent actually received from the Target Equityholders
or the Target after the Borrower’s use of commercially reasonable efforts to so obtain);
(i) the
Administrative Agent, the Initial 2019 Incremental Term Loan Lenders and the Incremental Joint Lead Arrangers shall have received, at
least three Business Days (as defined in the Acquisition Agreement as in effect on May 8, 2019) prior to the Third Incremental Agreement
Effective Date, all documentation and other information about Merger Sub, Holdings, the Borrower and the other Guarantors (including
the Target and its subsidiaries which are to become Guarantors on the Third Incremental Agreement Effective Date (collectively, the “Target
Guarantors”)) that shall have been reasonably requested by the Administrative Agent, the Initial 2019 Incremental Term Loan
Lenders or the Incremental Joint Lead Arrangers in writing at least 10 Business Days prior to the Third Incremental Agreement Effective
Date and that the Administrative Agent, the Initial 2019 Incremental Term Loan Lenders and the Incremental Joint Lead Arrangers reasonably
determines is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including without limitation the PATRIOT Act, including, if the Borrower qualifies as a “legal entity
customer” under the requirements of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the
Borrower;
(j) (i) on
the Third Incremental Agreement Effective Date, the Specified Representations shall be true and correct in all material respects (provided
that references in such Specified Representations to (1) the “Closing Date” shall instead refer to the Third Incremental
Agreement Effective Date, (2) the “Transactions” shall instead refer to the 2019 Transactions and (3) the “granting
of the Liens on the Collateral by the Credit Parties on the Closing Date” also shall include the existence of the Liens on the
Collateral on the Third Incremental Agreement Effective Date granted by the Credit Parties prior to the Third Incremental Agreement Effective
Date) and (ii) the Specified Acquisition Agreement Representations shall be true and correct to such extent that the Borrower (or
its affiliates) have the right to (taking into account any applicable cure provisions) terminate its (or their) obligations under the
Acquisition Agreement or to decline to consummate the Acquisition (in each case, in accordance with the terms thereof) as a result of
a breach of such representations and warranties;
(k) no
Event of Default under Section 11.1 or 11.5 of the Credit Agreement shall have occurred or have been continuing on May 8, 2019;
(l) The
Equity Contribution shall have been made, or substantially simultaneously with, the initial the borrowing of the 2019 Incremental Term
Loans, shall be made, in at least the amount set forth in Exhibit A of the 2019 Incremental Commitment Letter;
(m) The
Refinancing shall have been consummated, or shall be consummated substantially simultaneously with, the initial the borrowing of the
2019 Incremental Term Loans; and
(II) with respect to the obligation of the Incremental
Revolving Credit Commitment Increase Lender to provide the Incremental Revolving Credit Commitment Increase Commitments:
(a) the
Administrative Agent and the Incremental Revolving Credit Commitment Increase Lender shall have received from the Administrative Agent,
the Initial 2019 Incremental Term Loan Lenders, the Incremental Revolving Credit Commitment Increase Lender and each Credit Party as
of the date hereof either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement;
(b) the
Borrower shall have paid (i) all fees required to be paid to the Incremental Revolving Credit Commitment Increase Lender in connection
with this Agreement as separately agreed by the Borrower and the Incremental Revolving Credit Commitment Increase Lender and (ii) all
reasonable and documented costs and expenses required to be paid or reimbursed under Section 13.5 of the Credit Agreement for which
invoices have been presented a reasonable period of time prior to the Third Incremental Agreement Effective Date;
|
|
(c)
|
the Administrative Agent shall have received:
|
(i) a
certificate of Certifying Credit Parties, dated the Third Incremental Agreement Effective Date, substantially in the form of Exhibit E
to the Credit Agreement (with such modifications as are appropriate to reflect the 2019 Incremental Term Loans and the use of proceeds
thereof to fund a Limited Condition Acquisition, and, in the case of the Borrower, certifying that, after giving effect to the 2019 Transactions,
as if the 2019 Transactions were consummated on May 8, 2019, the full amount of the 2019 Incremental Term Loan Commitments may be
incurred on the Third Incremental Agreement Effective Date), and attaching the documents referred to in clauses (ii), (iii) and
(iv) below;
(ii) a
certificate of good standing (to the extent such concept exists) from the applicable secretary of state or other relevant Governmental
Authority of the jurisdiction of organization of each Certifying Credit Party;
(iii) a
copy of the resolutions of the Board of Directors or other governing body, as applicable, of each Certifying Credit Party (or a duly
authorized committee thereof) authorizing the execution, delivery and performance of this Agreement (and any agreements relating thereto)
to which it is a party;
(iv) true
and complete copies of the Organizational Documents of each Certifying Credit Party; provided that the delivery of such Organizational
Documents shall not be required to the extent an Authorized Officer of such Certifying Credit Party shall have certified that such Organizational
Documents are unchanged since last delivered to the Administrative Agent; and
(v) legal
opinions of Simpson Thacher & Bartlett LLP, New York counsel to Holdings, the Borrower and its Subsidiaries, in form and substance
similar to the opinion delivered on the Closing Date and reasonably satisfactory to the Administrative Agent and the Incremental Revolving
Credit Commitment Increase Lender; and
(vi) a
solvency certificate, dated the Third Incremental Agreement Effective Date and after giving effect to the 2019 Transactions, substantially
in the form of Exhibit B attached hereto, of the chief financial officer of the Borrower;
(d) the
Administrative Agent and the Incremental Revolving Credit Commitment Increase Lender shall have received, at least three Business Days
prior to the Third Incremental Agreement Effective Date, all documentation and other information about Merger Sub, Holdings, the Borrower
and the other Guarantors (including the Target Guarantors) that shall have been reasonably requested by the Administrative Agent or the
Incremental Revolving Credit Commitment Increase Lender in writing at least 10 Business Days prior to the Third Incremental Agreement
Effective Date and that the Administrative Agent and the Incremental Revolving Credit Commitment Increase Lender reasonably determines
is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the PATRIOT Act, including, if the Borrower qualifies as a “legal entity customer”
under the requirements of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower;
(e) the
representations and warranties set forth in Section 6 of this Incremental Agreement shall be true and correct; and
(f) no
Event of Default shall have occurred or have been continuing on the Third Incremental Agreement Effective Date.
Section 11. No Novation.
Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Credit Agreement
or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or by instruments
executed concurrently herewith and except to the extent repaid as provided herein. Nothing implied in this Incremental Agreement or in
any other document contemplated hereby shall discharge or release the Lien or priority of any Security Document or any other security
therefor or otherwise be construed as a release or other discharge of any of the Credit Parties under any Credit Document from any of
its obligations and liabilities as a borrower, guarantor or pledgor under any of the Credit Documents, except, in each case, to any extent
modified hereby and except to the extent repaid as provided herein.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
|
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CRACKLE PURCHASER LLC
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|
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|
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By:
|
[*****]
|
|
|
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Title: Chief Financial Officer
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WIREPATH LLC
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|
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By:
|
[*****]
|
|
|
|
Name: Michael Carlet
|
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|
|
Title: Chief Financial Officer
|
[Signature Page to
Incremental Agreement No. 3 to the Credit Agreement]
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WIREPATH HOME SYSTEMS, LLC
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By:
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[*****]
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|
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Name: Michael Carlet
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|
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Title: Chief Financial Officer
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AMPLIFY SERVICES, LLC
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By:
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[*****]
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|
|
Name: Michael Carlet
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|
|
Title: Chief Financial Officer
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SUNBRITE HOLDING CORPORATION
|
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|
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By:
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[*****]
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|
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Name: Michael Carlet
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|
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Title: Chief Financial Officer
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AUTONOMIC CONTROLS INC
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By:
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[*****]
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|
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Name: Michael Carlet
|
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|
|
Title: Chief Financial Officer
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SUNBRITE TV LLC
|
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By:
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[*****]
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|
|
|
Name: Michael Carlet
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|
|
Title: Chief Financial Officer
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ALLNET MERGER, LLC
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By:
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[*****]
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|
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Name: Michael Carlet
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Title: Chief Financial Officer
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VOLUTONE LLC
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By:
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[*****]
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|
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Name: Michael Carlet
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|
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Title: Chief Financial Officer
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MARKETING REPRESENTATIVES INC
|
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|
By:
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[*****]
|
|
|
|
Name: Michael Carlet
|
|
|
|
Title: Chief Financial Officer
|
[Signature Page to
Incremental Agreement No. 3 to the Credit Agreement]
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CONTROL4 CORPORATION.
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By:
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[*****]
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|
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Name: Michael Carlet
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|
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Title: Chief Financial Officer
|
[Signature Page to
Incremental Agreement No. 3 to the Credit Agreement]
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UBS
AG, STAMFORD BRANCH, as
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|
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Administrative Agent,
Collateral Agent, Swingline Lender, Letter of Credit Issuer and Lender
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By:
|
[*****]
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[*****]
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|
|
[*****]
|
[Signature
Page to Incremental Agreement No. 3 to the Credit Agreement]
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SUNTRUST
BANK, as Letter of Credit Issuer
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By:
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[*****]
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Name:
Mark Kelley
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|
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Title:
Managing Director
|
[Signature
Page to Incremental Agreement No. 3 to the Credit Agreement]
Initial 2019 Incremental Term Loan Lenders:
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UBS AG, Stamford Branch, as 2019 Incremental Term Loan Lender
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By:
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[*****]
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Name: Darlene Arias
|
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|
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Title: Director
|
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By:
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[*****]
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[*****]
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[*****]
|
[Signature
Page to Incremental Agreement No. 3 to the Credit Agreement]
Incremental Revolving Credit
Commitment Increase Lender:
|
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Bank of Montreal, as Incremental Resolving
Credit Commitment Increase Lender
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By:
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[*****]
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Name:
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Title: Vice President
|
[Signature Page to
Incremental Agreement No. 3 to the Credit Agreement]
Schedule 1
2019 Incremental Term Loan Commitments
|
Lender
|
|
2019 Incremental Term
Loan Commitment
|
|
|
[*****]
|
|
$390,000,000
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TOTAL:
|
|
$390,000,000
|
|
Schedule 2
Incremental Revolving
Credit
Commitment Increase Lender
|
|
Incremental Revolving
Credit
Commitment Increase Commitments
|
|
|
[*****]
|
|
$10,000,000
|
|
|
Total
|
|
$10,000,000
|
|
Exhibit A
[See attached]
EXECUTION VERSION
CREDIT AGREEMENT
Dated as of August 4,
2017,
as amended by Amendment Agreement, dated as of November 1,
2017,
as amended by Incremental Agreement No. 1, dated as of February 5, 2018
as amended by Incremental Agreement No. 2,
dated as of October 31, 2018
as
amended by Incremental Agreement No. 3, dated as of August 1, 2019
among
CRACKLE
PURCHASER LLC,
as Holdings,
CRACKLE
MERGER SUB I CORP., as the initial Borrower, which on the Closing Date shall be merged with and into an entity to be
renamed WIREPATH LLC (with the entity to be renamed WIREPATH LLC as the surviving entity of such merger and the Borrower) as
the Borrower,
The Several Lenders
from
Time to Time Parties Hereto,
UBS
AG, STAMFORD BRANCH,
as Administrative Agent, Collateral Agent and Swingline
Lender,
UBS
SECURITIES LLC and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint Bookrunners for
the Initial Term Loan Facility
UBS
SECURITIES LLC and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint Bookrunners
for the Revolving Credit Facility
Table of Contents
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Page
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SECTION 1. DEFINITIONS
|
2
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1.1
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Defined Terms
|
2
|
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1.2
|
Other Interpretive Provisions
|
7376
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1.3
|
Accounting Terms
|
7477
|
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1.4
|
Rounding
|
7478
|
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1.5
|
References to Agreements, Laws, Etc.
|
7578
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|
1.6
|
Times of Day
|
7578
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|
1.7
|
Timing of Payment or Performance
|
7578
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|
1.8
|
Currency Equivalents Generally
|
7578
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1.9
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Classification of Loans and Borrowings
|
7579
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1.10
|
Letter of Credit Amounts
|
7679
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1.11
|
Limited Condition Acquisitions
|
7679
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1.12
|
Pro Forma and Other Calculations
|
7780
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|
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|
SECTION 2. AMOUNT
AND TERMS OF CREDIT FACILITIES
|
7982
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2.1
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Loans
|
7982
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2.2
|
Minimum Amount of Each Borrowing; Maximum Number of Borrowings
|
8084
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2.3
|
Notice of Borrowing
|
8185
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2.4
|
Disbursement of Funds
|
8286
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|
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|
|
2.5
|
Repayment of Loans; Evidence of Debt
|
8287
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|
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2.6
|
Conversions and Continuations
|
8388
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|
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|
2.7
|
Pro Rata Borrowings
|
8489
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2.8
|
Interest
|
8489
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2.9
|
Interest Periods
|
8590
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2.10
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Increased Costs, Illegality, Etc.
|
8690
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|
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|
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2.11
|
Compensation
|
8793
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Page
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2.12
|
Change of Lending Office
|
8893
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|
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|
2.13
|
Notice of Certain Costs
|
8893
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|
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|
2.14
|
Incremental Facilities
|
8893
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|
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|
|
2.15
|
Extensions of Term Loans, Revolving Credit Loans and Revolving Credit Commitments and Additional/Replacement Revolving Credit Loans and Additional/Replacement Revolving Credit Commitments
|
9297
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|
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|
|
2.16
|
Defaulting Lenders
|
95101
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|
2.17
|
Term Loan Exchange Notes
|
97103
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|
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|
|
SECTION 3. LETTERS OF CREDIT
|
99105
|
|
|
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|
3.1
|
Issuance of Letters of Credit
|
99105
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|
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|
3.2
|
Letter of Credit Requests
|
100106
|
|
|
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|
|
3.3
|
Letter of Credit Participations
|
101107
|
|
|
|
|
|
3.4
|
Agreement to Repay Letter of Credit Drawings
|
103108
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|
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|
3.5
|
Increased Costs
|
104109
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|
|
|
|
|
3.6
|
New or Successor Letter of Credit Issuer
|
104110
|
|
|
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|
|
3.7
|
Role of Letter of Credit Issuer
|
105111
|
|
|
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|
|
3.8
|
Cash Collateral
|
106111
|
|
|
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|
|
3.9
|
Conflict with Issuer Documents
|
106112
|
|
|
|
|
|
3.10
|
Letters of Credit Issued for Restricted Subsidiaries
|
106112
|
|
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|
3.11
|
Other
|
106112
|
|
|
|
|
|
3.12
|
Applicability of ISP and UCP
|
107113
|
|
|
|
|
|
SECTION 4. FEES; COMMITMENT REDUCTIONS AND TERMINATIONS
|
107113
|
|
|
|
|
|
4.1
|
Fees
|
107113
|
|
|
|
|
|
4.2
|
Voluntary Reduction of Commitments
|
108114
|
|
|
|
|
|
4.3
|
Mandatory Termination of Commitments
|
109115
|
|
|
|
|
|
SECTION 5. PAYMENTS
|
110116
|
|
|
|
|
|
5.1
|
Voluntary Prepayments
|
110116
|
|
|
|
|
|
5.2
|
Mandatory Prepayments
|
111117
|
Page
|
5.3
|
Method and Place of Payment
|
115121
|
|
|
|
|
|
5.4
|
Net Payments
|
115122
|
|
|
|
|
|
5.5
|
Computations of Interest and Fees
|
118125
|
|
|
|
|
|
5.6
|
Limit on Rate of Interest
|
119125
|
|
|
|
|
|
SECTION 6. CONDITIONS PRECEDENT TO INITIAL CREDIT EVENT
|
119125
|
|
|
|
|
|
6.1
|
Credit Documents
|
119125
|
|
|
|
|
|
6.2
|
Collateral
|
119126
|
|
|
|
|
|
6.3
|
Legal Opinions
|
120127
|
|
|
|
|
|
6.4
|
Structure and Terms of the Transaction; No Material Adverse Effect
|
121127
|
|
|
|
|
|
6.5
|
Closing Certificates
|
121127
|
|
|
|
|
|
6.6
|
Corporate Proceedings
|
121127
|
|
|
|
|
|
6.7
|
Corporate Documents
|
121127
|
|
|
|
|
|
6.8
|
Solvency Certificate
|
121127
|
|
|
|
|
|
6.9
|
Financial Statements
|
121127
|
|
|
|
|
|
6.10
|
PATRIOT ACT
|
121127
|
|
|
|
|
|
6.11
|
Fees and Expenses
|
121128
|
|
|
|
|
|
6.12
|
Specified Representations
|
122128
|
|
|
|
|
|
SECTION 7. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS
|
122128
|
|
|
|
|
|
7.1
|
No Default; Representations and Warranties
|
122128
|
|
|
|
|
|
7.2
|
Notice of Borrowing; Letter of Credit Request
|
122128
|
|
|
|
|
|
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
|
122129
|
|
|
|
|
|
8.1
|
Corporate Status
|
123129
|
|
|
|
|
|
8.2
|
Corporate Power and Authority; Enforceability
|
123129
|
|
|
|
|
|
8.3
|
No Violation
|
123129
|
|
|
|
|
|
8.4
|
Litigation
|
123129
|
|
|
|
|
|
8.5
|
Margin Regulations
|
123129
|
|
|
|
|
|
8.6
|
Governmental and Third Party Approvals
|
123130
|
Page
|
8.7
|
Investment Company Act
|
124130
|
|
|
|
|
|
8.8
|
True and Complete Disclosure
|
124130
|
|
|
|
|
|
8.9
|
Financial Statements
|
124130
|
|
|
|
|
|
8.10
|
Tax Returns and Payments, Etc.
|
125131
|
|
|
|
|
|
8.11
|
Compliance with ERISA
|
125131
|
|
|
|
|
|
8.12
|
Subsidiaries
|
125132
|
|
|
|
|
|
8.13
|
Intellectual Property
|
126132
|
|
|
|
|
|
8.14
|
Environmental Laws
|
126132
|
|
|
|
|
|
8.15
|
Properties, Assets and Rights
|
126132
|
|
|
|
|
|
8.16
|
Solvency
|
126133
|
|
|
|
|
|
8.17
|
Material Adverse Change
|
127133
|
|
|
|
|
|
8.18
|
Use of Proceeds
|
127133
|
|
|
|
|
|
8.19
|
Anti-Corruption Laws
|
127133
|
|
|
|
|
|
8.20
|
Sanctioned Persons
|
127134
|
|
|
|
|
|
8.21
|
PATRIOT Act
|
127134
|
|
|
|
|
|
8.22
|
Labor Matters
|
127134
|
|
|
|
|
|
8.23
|
Subordination of Junior Financing
|
127134
|
|
|
|
|
|
8.24
|
No Default
|
127134
|
|
|
|
|
|
SECTION 9. AFFIRMATIVE COVENANTS
|
128135
|
|
|
|
|
|
9.1
|
Information Covenants
|
128135
|
|
|
|
|
|
9.2
|
Books, Records and Inspections
|
130137
|
|
|
|
|
|
9.3
|
Maintenance of Insurance
|
131138
|
|
|
|
|
|
9.4
|
Payment of Taxes
|
131138
|
|
|
|
|
|
9.5
|
Consolidated Corporate Franchises
|
131138
|
|
|
|
|
|
9.6
|
Compliance with Statutes
|
132138
|
|
|
|
|
|
9.7
|
ERISA
|
132139
|
|
|
|
|
|
9.8
|
Good Repair
|
132139
|
Page
|
9.9
|
End of Fiscal Years; Fiscal Quarters
|
133139
|
|
|
|
|
|
9.10
|
Additional Guarantors and Grantors
|
133139
|
|
|
|
|
|
9.11
|
Pledges of Additional Stock and Evidence of Indebtedness
|
133140
|
|
|
|
|
|
9.12
|
Use of Proceeds
|
133140
|
|
|
|
|
|
9.13
|
Changes in Business
|
134141
|
|
|
|
|
|
9.14
|
Further Assurances
|
134141
|
|
|
|
|
|
9.15
|
Designation of Subsidiaries
|
135143
|
|
|
|
|
|
9.16
|
Maintenance of Ratings
|
136143
|
|
|
|
|
|
9.17
|
Post-Closing Obligations
|
136143
|
|
|
|
|
|
SECTION 10. NEGATIVE COVENANTS
|
136143
|
|
|
|
|
|
10.1
|
Limitation on Indebtedness
|
136143
|
|
|
|
|
|
10.2
|
Limitation on Liens
|
144151
|
|
|
|
|
|
10.3
|
Limitation on Fundamental Changes
|
149157
|
|
|
|
|
|
10.4
|
Limitation on Sale of Assets
|
150158
|
|
|
|
|
|
10.5
|
Limitation on Investments
|
154161
|
|
|
|
|
|
10.6
|
Limitation on Restricted Payments
|
158166
|
|
|
|
|
|
10.7
|
Limitations on Debt Payments and Amendments
|
164172
|
|
|
|
|
|
10.8
|
Negative Pledge Clauses
|
165172
|
|
|
|
|
|
10.9
|
Passive Holding Company; Etc.
|
167175
|
|
|
|
|
|
10.10
|
Consolidated First Lien Debt to Consolidated EBITDA Ratio
|
168176
|
|
|
|
|
|
10.11
|
Transactions with Affiliates
|
168177
|
|
|
|
|
|
SECTION 11. EVENTS OF DEFAULT
|
171179
|
|
|
|
|
|
11.1
|
Payments
|
171179
|
|
|
|
|
|
11.2
|
Representations, Etc.
|
171180
|
|
|
|
|
|
11.3
|
Covenants
|
171180
|
|
|
|
|
|
11.4
|
Default Under Other Agreements
|
172180
|
|
|
|
|
|
11.5
|
Bankruptcy, Etc.
|
172180
|
Page
|
11.6
|
ERISA
|
172181
|
|
|
|
|
|
11.7
|
Guarantee
|
173181
|
|
|
|
|
|
11.8
|
Security Document
|
173181
|
|
|
|
|
|
11.9
|
Judgments
|
173181
|
|
|
|
|
|
11.10
|
Change of Control
|
173182
|
|
|
|
|
|
11.11
|
Borrower’s Right to Cure
|
174182
|
|
|
|
|
|
SECTION 12. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
|
175183
|
|
|
|
|
|
12.1
|
Appointment
|
175183
|
|
|
|
|
|
12.2
|
Limited Duties
|
175184
|
|
|
|
|
|
12.3
|
Binding Effect
|
175184
|
|
|
|
|
|
12.4
|
Delegation of Duties
|
176184
|
|
|
|
|
|
12.5
|
Exculpatory Provisions
|
176184
|
|
|
|
|
|
12.6
|
Reliance by Administrative Agent
|
176185
|
|
|
|
|
|
12.7
|
Notice of Default
|
177185
|
|
|
|
|
|
12.8
|
Non-Reliance on Administrative Agent and Other Lenders
|
177185
|
|
|
|
|
|
12.9
|
Indemnification
|
177186
|
|
|
|
|
|
12.10
|
Agent in Its Individual Capacity
|
177186
|
|
|
|
|
|
12.11
|
Successor Agent
|
178186
|
|
|
|
|
|
12.12
|
Withholding Tax
|
179187
|
|
|
|
|
|
12.13
|
Duties as Collateral Agent and as Paying Agent
|
179187
|
|
|
|
|
|
12.14
|
Authorization to Release Liens and Guarantees
|
179188
|
|
|
|
|
|
12.15
|
Intercreditor Agreements
|
179188
|
|
|
|
|
|
12.16
|
Secured Cash Management Agreements and Secured Hedge Agreements
|
180188
|
|
|
|
|
|
12.17
|
Administrative Agent May File Proofs of Claim
|
180188
|
|
|
|
|
|
SECTION 13. MISCELLANEOUS
|
181190
|
|
|
|
|
|
13.1
|
Amendments and Waivers
|
181190
|
|
|
|
|
|
13.2
|
Notices; Electronic Communications
|
183192
|
Page
|
13.3
|
No Waiver; Cumulative Remedies
|
186194
|
|
|
|
|
|
13.4
|
Survival of Representations and Warranties
|
186195
|
|
|
|
|
|
13.5
|
Payment of Expenses; Indemnification
|
186195
|
|
|
|
|
|
13.6
|
Successors and Assigns; Participations and Assignments
|
188197
|
|
|
|
|
|
13.7
|
Replacements of Lenders Under Certain Circumstances
|
194203
|
|
|
|
|
|
13.8
|
Adjustments; Set-off
|
195204
|
|
|
|
|
|
13.9
|
Counterparts
|
196205
|
|
|
|
|
|
13.10
|
Severability
|
196205
|
|
|
|
|
|
13.11
|
Integration
|
196205
|
|
|
|
|
|
13.12
|
GOVERNING LAW
|
196205
|
|
|
|
|
|
13.13
|
Submission to Jurisdiction; Waivers
|
197205
|
|
|
|
|
|
13.14
|
Acknowledgments
|
197206
|
|
|
|
|
|
13.15
|
WAIVERS OF JURY TRIAL
|
197206
|
|
|
|
|
|
13.16
|
Confidentiality
|
197206
|
|
|
|
|
|
13.17
|
Release of Collateral and Guarantee Obligations; Subordination of Liens
|
198207
|
|
|
|
|
|
13.18
|
USA PATRIOT ACT
|
199208
|
|
|
|
|
|
13.19
|
Legend
|
199208
|
|
|
|
|
|
13.20
|
Payments Set Aside
|
200209
|
|
|
|
|
|
13.21
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
200209
|
|
|
|
|
|
13.22
|
Execution by Target, Amplify and Subsidiaries
|
200209
|
|
SCHEDULES
|
|
|
|
|
|
Schedule 1.1(a)
|
Commitments of Lenders
|
|
Schedule 1.1(b)
|
Existing Letters of Credit
|
|
Schedule 1.1(c)
|
Mortgaged Property
|
|
Schedule 8.12
|
Subsidiaries
|
|
Schedule 8.15
|
Owned Real Property
|
|
Schedule 9.17
|
Post-Closing Obligations
|
|
Schedule 10.1
|
Indebtedness
|
|
Schedule 10.2
|
Liens
|
|
Schedule 10.4
|
Dispositions
|
|
Schedule 10.5
|
Investments
|
|
Schedule 10.8
|
Negative Pledge Clauses
|
|
Schedule 10.11
|
Transactions with Affiliates
|
|
Schedule 13.2
|
Addresses for Notices
|
|
|
|
|
EXHIBITS
|
|
|
|
|
|
Exhibit A
|
Form of Guarantee
|
|
Exhibit B
|
Form of Security Agreement
|
|
Exhibit C
|
Form of Pledge Agreement
|
|
Exhibit D
|
Form of Notice of Borrowing
|
|
Exhibit E
|
Form of Closing Certificate
|
|
Exhibit F-1
|
Form of Promissory Note (Revolving Credit Loans and Swingline Loans)
|
|
Exhibit F-2
|
Form of Promissory Note (Initial Term Loans)
|
|
Exhibit G-1
|
Form of Equal Priority Intercreditor Agreement
|
|
Exhibit G-2
|
Form of Junior Priority Intercreditor Agreement
|
|
Exhibit H
|
Form of Assignment and Acceptance
|
|
Exhibit I
|
Form of Affiliated Lender Assignment and Acceptance
|
|
Exhibit J
|
Form of Solvency Certificate
|
|
Exhibit K
|
Form of United States Tax Compliance Certificate
|
|
Exhibit L
|
Form of Intercompany Subordinated Note
|
|
Exhibit M
|
Form of Perfection Certificate
|
|
Exhibit N
|
Form of Notice of Voluntary Prepayment
|
CREDIT
AGREEMENT, dated as of August 4, 2017, among CRACKLE PURCHASER CORP., a Delaware corporation (“Holdings”;
as hereinafter further defined), CRACKLE MERGER SUB I CORP., a Delaware corporation (“Merger Sub”), which on
the Closing Date shall be merged with and into Amplify (with Amplify surviving such merger as the Debt Surviving Company and being renamed
WIREPATH LLC, as the “Borrower”; as hereinafter further defined), the Lenders from time to time party hereto,
the Letter of Credit Issuers from time to time party hereto and UBS AG, STAMFORD BRANCH, as the Administrative Agent, Collateral
Agent and Swingline Lender.
RECITALS:
WHEREAS, capitalized terms
used and not defined in the preamble and these recitals shall have the respective meanings set forth for such terms in Section 1.1
hereof;
WHEREAS, pursuant to the Acquisition
Agreement, (i) Merger Sub will merge with and into Amplify (such merger, the “Amplify Merger”), with Amplify being
the surviving entity of the Amplify Merger (the “Debt Surviving Company”, which shall immediately thereafter be renamed
Wirepath LLC), (ii) Crackle Merger Sub II Corp., a Delaware corporation (“Merger Sub II”), will merge with and
into Amplify Holdings LLC, a Delaware limited liability company (the “Target”; such merger, the “Company Merger”
and, together with the Amplify Merger, the “Mergers”), with the Target being the surviving entity of the Company Merger
and (iii) except with respect to certain equityholders of the Target and its subsidiaries, including management of the Target and
its subsidiaries, who agree to roll over their Capital Stock of the Target and its Affiliates or the cash proceeds they received from
the Transactions into Capital Stock in Holdings or a Parent Entity of Holdings (in such capacity, the “Rollover Investors”),
the GA Equityholders and the equityholders of the Target will receive cash in exchange for their Capital Stock (including phantom equity
units) in the Target and Amplify, respectively, and the former equityholders of the Target will be entitled to receive the payment in
respect of the 2017 Contingent Value Rights, the Deferred Blocker Consideration and the Deferred Company Consideration (collectively,
the “Merger Consideration”);
WHEREAS, (a) the
Sponsor and certain other investors (including the Rollover Investors and certain members of management of the Target and its
affiliates) arranged by and/or designated by the Sponsor will, directly or indirectly, make cash equity contributions through
Holdings (or through one or more Parent Entities of Holdings to Holdings), the net proceeds of which will be further contributed,
directly or indirectly, as cash equity to Merger Sub in exchange for Capital Stock of Merger Sub; provided that any such
equity contribution directly to Merger Sub in a form other than common equity shall be reasonably satisfactory to the Lead Arrangers
(the foregoing, collectively, the “Equity Contribution”), in an aggregate amount equal to, when combined with the
Fair Market Value of any Capital Stock of any of the Rollover Investors rolled over or invested in connection with the Transactions,
at least 40.0% of the sum of (1) the aggregate gross proceeds of the Initial Term Loans and Revolving Credit Loans borrowed on
the Closing Date, excluding the aggregate gross proceeds of (A) any Initial Term Loans and Revolving Credit Loans, in either
case borrowed to fund OID and/or upfront fees required to be funded and (B) any Revolving Credit Loans borrowed to fund any
ordinary course working capital needs and (2) the equity capitalization of the Borrower and its Subsidiaries on the Closing
Date, after giving effect to the Transactions and (b) after giving effect to the Transactions on the Closing Date, the Sponsor
will own indirectly at least a majority of the Capital Stock of Holdings;
WHEREAS, in connection with
the foregoing, the Borrower has requested that, immediately upon the satisfaction in full of the applicable conditions precedent set forth
in Section 6 below, the Lenders and Letter of Credit Issuers extend credit to the Borrower in the form of (i) $265,000,000 in
aggregate principal amount of Initial Term Loans to be borrowed on the Closing Date (the “Closing Date Term Loan Facility”)
and (ii) a revolving credit facility in an initial aggregate principal amount of $50,000,000 of Revolving Credit Commitments (the
“Revolving Credit Facility”);
WHEREAS, a portion of
the proceeds of the Initial Term Loans, the Initial Revolving Borrowing Amount and the Equity Contribution will be contributed as
equity and/or loaned, directly or indirectly, to Merger Sub II and, prior to the consummation of the Mergers, General Atlantic
(Amplify) HoldCo LLC, an equityholder of Amplify, will contribute 100% of the outstanding principal amount and accrued interest
under an intercompany loan to Amplify;
WHEREAS, a portion of the
proceeds of the Initial Term Loans and the Initial Revolving Borrowing Amount (to the extent permitted in accordance with the definition
of the term “Permitted Initial Revolving Credit Borrowing Purposes”), together with a portion of the Target’s and its
Subsidiaries’ cash on hand and the proceeds of the Equity Contribution, will be used to pay the Merger Consideration, the Existing
Debt Refinancing and the Transaction Expenses;
WHEREAS, the Lenders have
indicated their willingness to extend such credit and the Letter of Credit Issuers have indicated their willingness to issue Letters of
Credit, in each case on the terms and subject to the conditions set forth below;
WHEREAS, in connection with
the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit contemplated hereunder, the Borrower
has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority
lien (such priority subject to Liens permitted hereunder) on substantially all of its assets (except as otherwise set forth in the Credit
Documents), including a pledge of all of the Capital Stock of each of its Subsidiaries (other than any Excluded Capital Stock); and
WHEREAS, in connection with
the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit contemplated hereunder, each
Guarantor has agreed to guarantee all of its Obligations and to secure its guarantees by granting to the Collateral Agent, for the benefit
of the Secured Parties, a first priority lien (such priority subject to Liens permitted hereunder) on substantially all of its assets
(except as otherwise set forth in the Credit Documents), including a pledge of all of the Capital Stock of each of their respective Subsidiaries
(other than any Excluded Capital Stock).
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto
agree as follows:
SECTION 1. Definitions.
1.1 Defined
Terms. As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise
requires:
“2017 Contingent Value Rights”
shall have the meaning assigned to such term in the Acquisition Agreement.
“2019
Incremental Commitment Letter” shall mean the commitment letter, dated as of May 8, 2019, by and among
Holdings, the Borrower, UBS AG, Stamford Branch, UBS Securities LLC, SunTrust Robinson Humphrey, Inc.,
SunTrust Bank, Bank of Montreal and BMO Capital Markets Corp.
“2019
Incremental Fee Letter” shall mean the fee letter, dated as of May 8, 2019, by and among Holdings, the
Borrower, UBS AG, Stamford Branch, UBS Securities LLC, SunTrust Robinson Humphrey, Inc., SunTrust Bank,
Bank of Montreal and BMO Capital Markets Corp.
“2019
Incremental Term Loan Lenders” shall mean the “Initial 2019 Incremental Term Loan Lenders” as defined
in the Third Incremental Agreement.
“2019
Incremental Term Loan Commitments” shall mean, in the case of the 2019 Incremental Term Loan Lenders,
the amount set forth opposite such Lender’s name on Schedule 1 to the Third Incremental Agreement as such
Lender’s “2019 Incremental Term Loan Commitment”. The aggregate amount of 2019 Incremental Term Loan Commitments as of the Third Incremental Agreement Effective Date is $390,000,000.
“2019
Incremental Term Loan Joint Lead Arrangers” means UBS AG, Stamford Branch, SunTrust Robinson
Humphrey, Inc. and BMO Capital Markets Corp., in their capacity as joint lead arrangers and joint bookrunners
with respect to the 2019 Incremental Term Loan Facility.
“2019
Incremental Term Loan Facility” shall mean the facility under which the 2019 Incremental Term Loans
are made available on the Third Incremental Agreement Effective Date pursuant to the Third Incremental Agreement.
“2019
Incremental Term Loan Maturity Date” shall mean the seventh anniversary
of the Closing Date, or if such anniversary
of the Closing Date is not a Business Day, the Business Day immediately following such anniversary.
“2019
Incremental Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(ii).
“2019
Incremental Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b)(ii).
“2019
Incremental Term Loan” shall have the meaning provided in Section 2.1(a)(ii).
“2019
Transactions” shall have the meaning provided for such term in the Third Incremental Agreement.
“ABR” shall
mean, for any day, a fluctuating rate per annum equal to the highest of (a) the Prime Rate in effect for such day, (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%, (c) the Eurodollar Rate for a one month Interest Period on such
day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00% and (d) (i) solely with
regard to the Initial Term Loans, 0.00% and, (ii) solely
with regard to the 2019 Incremental Term Loans, 0.00% and (iii) with regard to
the Revolving Credit Loans, 0.00%. If the Administrative Agent shall have determined (which determination should be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of
the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the ABR shall be determined
without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any
change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Rate shall be effective on the
effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Rate, as the case may be.
“ABR Loan”
shall mean each Loan bearing interest at the rate provided in Section 2.8(a) and, in any event, shall include all Swingline
Loans.
“Acceptable Reinvestment
Commitment” shall mean a binding commitment of the Borrower or any Restricted Subsidiary entered into at any time prior to the
end of the Reinvestment Period to reinvest the proceeds of an Asset Sale Prepayment Event or Recovery Prepayment Event.
“Accounting
Change” shall mean any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants, equivalent authorities
for IFRS, or, if applicable, the SEC.
“Acquired EBITDA”
shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such
period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Borrower and the Restricted Subsidiaries in
the definition of the term “Consolidated EBITDA” were references to such Pro Forma Entity and its subsidiaries that will become
Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.
“Acquired Entity
or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Acquisition”
shall mean any acquisition by the Borrower or any Restricted Subsidiary, whether by purchase, merger, consolidation, contribution or otherwise,
of (a) at least a majority of the assets or property and/or liabilities (or any other substantial part for which financial statements
or other financial information is available), or a business line, product line, unit or division of, any other Person, (b) Capital
Stock of any other Person such that such other Person becomes a Restricted Subsidiary and (c) additional Capital Stock of any Restricted
Subsidiary not then held by the Borrower or any Restricted Subsidiary.
“Acquisition Agreement”
means the Agreement and Plan of Merger, dated as of June 19, 2017, by and among Holdings, Merger Sub, Merger Sub II, General Atlantic
(Amplify) HoldCo LLC, Amplify, the Target, GA Escrow, LLC, a Delaware limited liability company, solely in its capacity as the seller
representative of the equityholders of Amplify and the Target, and JWF Rollover, LLC, a North Carolina limited liability company, solely
in its capacity as the representative of the equityholders of Amplify and the Target with respect to certain tax matters.
“Acquisition Consideration”
shall mean, in connection with any Acquisition, the aggregate amount (as valued at the Fair Market Value of such Acquisition at the time
such Acquisition is made) of, without duplication:
(a) the
purchase consideration paid or payable for such Acquisition, whether payable at or prior to the consummation of such Acquisition or deferred
for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and including
any and all payments representing the purchase price and any assumptions of Indebtedness and/or Guarantee Obligations, “earn-outs”
and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent
upon the revenues, income, cash flow or profits (or the like) of any Person or business and
(b) the
aggregate amount of Indebtedness Incurred in connection with such Acquisition; provided in each case, that any such future payment
that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve, if any, required under
GAAP (as determined at the time of the consummation of such Acquisition) to be established in respect thereof by Holdings, the Borrower
or its Restricted Subsidiaries.
“acquired Person”
shall have the meaning provided in Section 10.1(k)(i)(E). “Additional Lender” shall have the meaning provided
in Section 2.14(d).
“Additional/Replacement Revolving Credit
Commitment” shall have the meaning provided in Section 2.14(a).
“Additional/Replacement Revolving Credit
Facility” shall mean each Class of Additional/Replacement Revolving Credit Commitments made pursuant to Section 2.14(a).
“Additional/Replacement
Revolving Credit Lender” shall mean, at any time, any Lender that has an Additional/Replacement Revolving Credit Commitment.
“Additional/Replacement
Revolving Credit Loans” shall mean any loan made to the Borrower under a Class of Additional/Replacement Revolving Credit
Commitments.
“Adjusted Total Additional/Replacement
Revolving Credit Commitment” shall mean, at any time, with respect to any Class of Additional/Replacement Revolving Credit
Commitments, the Total Additional/Replacement Revolving Credit Commitment for such Class less the aggregate Additional/Replacement
Revolving Credit Commitments of all Defaulting Lenders in such Class.
“Adjusted Total Extended
Revolving Credit Commitment” shall mean, at any time, with respect to any Class of Extended Revolving Credit Commitments,
the Total Extended Revolving Credit Commitment for such Class less the aggregate Extended Revolving Credit Commitments of
all Defaulting Lenders in such Class.
“Adjusted Total Revolving
Credit Commitment” shall mean, at any time, the Total Revolving Credit Commitment less the aggregate Revolving Credit Commitments
of all Defaulting Lenders.
“Administrative Agent”
shall mean UBS AG, Stamford Branch or any successor to UBS AG, Stamford Branch appointed in accordance with the provisions of Section 12.11,
together with its Affiliates that are appointed as sub-agents in accordance with Section 12.4, in each case, as the administrative
agent for the Lenders under this Agreement and the other Credit Documents.
“Administrative Agent’s
Office” shall mean the office and, as appropriate, the account of the Administrative Agent set forth on Schedule 13.2 or such
other office or account as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
“Affiliate”
shall mean, with respect to any specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified. The term “Control” shall mean 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 ownership
of Voting Stock, by agreement or otherwise. The terms “Controlling” and “Controlled” have meanings correlative
thereto.
“Affiliated Lender” shall mean a Non-Debt
Fund Affiliate or a Debt Fund Affiliate.
“Affiliated Lender Assignment and Acceptance”
shall have the meaning provided in Section 13.6(g)(i)(C).
“Agents” shall mean each of the Administrative
Agent and the Collateral Agent. “Agreement” shall mean this Credit Agreement.
“AHYDO
Catch-Up Payment” shall mean any payment with respect to any obligations of the Borrower or any Restricted Subsidiary, in each
case to avoid the application of Section 163(e)(5) of the Code thereto.
“Amplify” shall
mean General Atlantic (Amplify) LLC, a Delaware limited liability company.
“Amplify Merger” shall have the meaning
provided in the recitals to this Agreement.
“Applicable Laws”
shall mean, as to any Person, any international, foreign, provincial, territorial, federal, state, municipal, and local law (including
common law and Environmental Laws), statute, regulation, by-law, ordinance, treaty, rule, order, code, regulation, decree, guideline,
judgment, consent decree, writ, injunction, settlement agreement, governmental requirement and administrative or judicial precedents enacted,
promulgated or imposed or entered into or agreed by any Governmental Authority, in each case applicable to or binding on such Person or
any of its property or assets or to which such Person or any of its property or assets is subject.
“Applicable Margin”
shall mean (a) with respect to any Initial Term Loans, 4.00% for Eurodollar Loans and 3.00% for
ABR Loans and, (b) with respect to
the 2019 Incremental Term Loans, 4.75% for Eurodollar Loans and 3.75% for ABR Loans and (c) with respect to the Revolving
Credit Loans and Swingline Loans, the following percentages per annum, based upon the Consolidated First Lien Debt to Consolidated EBITDA
Ratio as set forth in the most recent certificate delivered to the Administrative Agent pursuant to Section 9.1(d):
|
Pricing Level
|
|
Consolidated First Lien
Debt to Consolidated
EBITDA Ratio
|
|
Applicable Margin for
Revolving Credit Loans
that are Eurodollar
Loans
|
|
|
Applicable Margin for
Revolving Credit
Loans that are ABR Loans
and Swingline Loans
|
|
|
1
|
|
Greater than 4.75:1.00
|
|
|
4.00
|
%
|
|
|
3.00
|
%
|
|
2
|
|
Less than or equal to 4.75:1.00 but greater than 4.25:1.00
|
|
|
3.75
|
%
|
|
|
2.75
|
%
|
|
3
|
|
Less than or equal to 4.25:1.00
|
|
|
3.50
|
%
|
|
|
2.50
|
%
|
Notwithstanding
anything to the contrary in this definition, during the period from the Closing Date until the Initial Financial Statement Delivery
Date, the Applicable Margin for Initial Term Loans, Revolving
Credit Loans and Swingline Loans shall be determined by reference to the applicable “Pricing Level 1” set forth in the
tables above. Any increase or decrease in the Applicable Margin for Initial Term
Loans, Revolving Credit Loans and Swingline Loans resulting from a change in the
Consolidated First Lien Debt to Consolidated EBITDA Ratio shall become effective as of the first Business Day immediately following
the date the certificate delivered pursuant to Section 9.1(d) is delivered to the Administrative Agent; provided
that, at the option of the Required Lenders, the highest pricing level (as set forth in the tables above) shall apply (a) as of
the first Business Day after the date on which Section 9.1 Financials were required to have been delivered but have not been
delivered pursuant to Section 9.1 and shall continue to so apply to and including the date on which such Section 9.1
Financials are so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply)
and (b) as of the first Business Day after an Event of
Default under Section 11.1 or Section 11.5 shall have occurred and be continuing and, in the case of Section 11.1,
the Administrative Agent has notified the Borrower that the highest pricing level applies, and shall continue to so apply to but
excluding the date on which such Event of Default shall cease to be continuing (and thereafter the pricing level otherwise
determined in accordance with this definition shall apply).
In
the event that the Administrative Agent and the Borrower determine that any Section 9.1 Financials previously delivered were incorrect
or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy,
if corrected, would have led to the application of a higher Applicable Margin for Initial Term
Loans, Revolving Credit Loans and/or Swingline Loans for any period (an “Applicable
Period”) than the Applicable Margin for Initial Term Loans, Revolving
Credit Loans and/or Swingline Loans, as applicable, applied for such Applicable Period, then (a) the Borrower shall as soon as practicable
deliver to the Administrative Agent the correct Section 9.1 Financials for such Applicable Period, (b) the Applicable Margin
for Initial Term Loans, Revolving Credit Loans and/or
Swingline Loans, as applicable, shall be determined as if the pricing level for such higher Applicable Margin for Initial
Term Loans, Revolving Credit Loans and/or Swingline Loans, as applicable, was applicable
for such Applicable Period, and (c) the Borrower shall within 10 Business Days of demand thereof by the Administrative Agent pay
to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable
Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement. This paragraph shall not
limit the rights of the Administrative Agent and Lenders with respect to Section 2.8(c) and Section 11.
“Applicable Period” shall have the meaning
provided in the definition of the term “Applicable Margin”.
“Approved Foreign Bank”
shall have the meaning provided in the definition of the term “Cash Equivalents”.
“Approved Fund” shall have the meaning
provided in Section 13.6(b).
“Asset Sale Prepayment
Event” shall mean any Disposition (or series of related Dispositions) of any business unit, asset or property of the Borrower
or any Restricted Subsidiary (including any Disposition of any Capital Stock of any Subsidiary of the Borrower owned by the Borrower or
any Restricted Subsidiary); provided that the term “Asset Sale Prepayment Event” shall include only Dispositions (or
a series of related Dispositions) (including any Disposition of any Capital Stock of any Subsidiary of Holdings owned by the Borrower
or a Restricted Subsidiary) made pursuant to clauses (c), (d)(ii), (g), (j), (q), (r) and (t) of Section 10.4.
“Assignment and Acceptance”
shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required
by Section 13.6) substantially in the form of Exhibit H or such other form as shall be reasonably acceptable to the Borrower
and the Administrative Agent.
“Authorized Officer”
shall mean the Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer,
the Treasurer, any Manager, any Vice President, the Assistant Treasurer, with respect to certain limited liability companies or partnerships
that do not have officers, any manager, managing member, managing director, general partner or authorized signatory thereof, any other
senior officer of Holdings, the Borrower or any other Credit Party designated as such in writing to the Administrative Agent by Holdings,
the Borrower or any other Credit Party, as applicable, and, with respect to any document (other than the solvency certificate) delivered
on the Closing Date or any Incremental Facility Closing Date, the Secretary or the Assistant Secretary of any Credit Party, and, solely
for purposes of notices given pursuant to Sections 2, 3, 4 or 5, any other officers of the applicable Credit Party so designated by any
of the foregoing Persons in a notice to the Administrative Agent or any other officer of the applicable Credit Party designated in or
pursuant to an agreement between the applicable Credit Party and the Administrative Agent. Any document delivered hereunder that is signed
by an Authorized Officer shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company,
partnership and/or other action on the part of Holdings, the Borrower or any other Credit Party and such Authorized Officer shall be conclusively
presumed to have acted on behalf of such Person.
“Auto-Extension Letter of Credit” shall
have the meaning provided in Section 3.2(e).
“Available Amount” shall mean,
at any time (the “Available Amount Reference Time”) an amount equal at such time to (a) the sum (which shall not
be less than zero) of, without duplication:
(i) [reserved];
(ii) the
amount (which amount shall not be less than zero) equal to 50% of the Cumulative Consolidated Net Income of the Borrower and the Restricted
Subsidiaries,
(iii) the
amount (which amount shall not be less than zero) equal to 50% of the Deferred Revenues of the Borrower and the Restricted Subsidiaries,
(iv) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount of all Returns (to the
extent made in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary from any Investment to the extent such
Investment was made by using the Available Amount during the period from and including the Business Day immediately following the Closing
Date through and including the Available Amount Reference Time (other than the portion of any such dividends and other distributions that
is used by the Borrower or any Restricted Subsidiary to pay taxes related to such amounts);
(v) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount of all repayments made
in cash or Cash Equivalents of principal received by the Borrower or any Restricted Subsidiary from any Investment to the extent such
Investment was made by using the Available Amount during the period from and including the Business Day immediately following the Closing
Date through and including the Available Amount Reference Time in respect of loans made by the Borrower or any Restricted Subsidiary and
that constituted Investments;
(vi) to
the extent not already included in the calculation of Cumulative Consolidated Net Income or applied to prepay the Term Loans in accordance
with Section 5.2(a)(i) or to prepay, repurchase, redeem, defease, acquire or make any other similar payment on any Permitted
Additional Debt or on any Credit Agreement Refinancing Indebtedness, the aggregate amount of all Net Cash Proceeds received by the Borrower
or any Restricted Subsidiary in connection with the Disposition of its ownership interest in any Investment to any Person other than to
the Borrower or a Restricted Subsidiary and to the extent such Investment was made by using the Available Amount during the period from
and including the Business Day immediately following the Closing Date through and including the Available Amount Reference Time;
(vii) the
amount of any Investment of the Borrower or any of its Restricted Subsidiaries in any Unrestricted Subsidiary that has been re-designated
as a Restricted Subsidiary pursuant to Section 9.15 or that has been merged, amalgamated or consolidated with or into the Borrower
or any of its Restricted Subsidiaries pursuant to Section 10.3 or the amount of assets of an Unrestricted Subsidiary Disposed of
to the Borrower or a Restricted Subsidiary, in each case following the Closing Date and at or prior to the Available Amount Reference
Time, in each case, such amount not to exceed the lesser of (x) the Fair Market Value of the Investments of the Borrower and its
Restricted Subsidiaries in such Unrestricted Subsidiary immediately prior to giving pro forma effect to such re-designation or merger,
amalgamation or consolidation or the Fair Market Value of the assets so Disposed of and (y) the amount originally invested from the
Available Amount by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary (provided that, in the case of original
investments made in cash, the Fair Market Value shall be such cash value); and
(viii) the
aggregate amount of all Returns (to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary
on Investments made using the Available Amount during the period from and including the Business Day immediately following the Closing
Date through and including the Available Amount Reference Time;
minus
(b) the sum of, without duplication and without taking into account the proposed portion of the amount calculated above to be used
at the applicable Available Amount Reference Time:
(i) the
aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Amount pursuant to Section 10.5
after the Closing Date and prior to the Available Amount Reference Time;
(ii) the
aggregate amount of any Restricted Payments made by the Borrower using the Available Amount pursuant to
Section 10.6(f) after the Closing Date and prior to the Available Amount Reference Time; and
(iii) the
aggregate amount expended on prepayments, repurchases, redemptions, acquisitions, defeasements, and other similar payments made by the
Borrower or any Restricted Subsidiary using the Available Amount pursuant to Section 10.7(a) after the Closing Date and prior
to the Available Amount Reference Time.
“Available Amount Reference Time”
shall have the meaning provided in the definition of the term “Available Amount.”
“Available Equity Amount” shall
mean, at any time (the “Available Equity Amount Reference Time”) an amount (which shall not be less than zero) equal
to, without duplication:
(a) the
aggregate amount of cash and the Fair Market Value of marketable securities or other property, in each case, contributed to the capital
of the Borrower or the proceeds received by the Borrower from the issuance of any Capital Stock (or Incurrences of Indebtedness that have
been converted into or exchanged for Qualified Capital Stock), in each case during the period from and including the Business Day immediately
following the Closing Date through and including the Available Equity Amount Reference Time, but excluding (A) all proceeds from
the issuance of Disqualified Capital Stock, (B) any Excluded Contribution and (C) any Cure Amount; plus
(b) [reserved];
(c) the
Fair Market Value or, if the Fair Market Value of such Term Loans cannot be ascertained, the Fair Market Value shall be the purchase price
of such Term Loans (which shall not in any event be calculated in excess of par) of Term Loans contributed directly or indirectly by an
Investor or a Non-Debt Fund Affiliate to the Borrower during the period after the Closing Date through and including the Available Equity
Amount Reference Time; plus
(d) the
greater of (x) $25,000,000 and (y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test
Period most recently ended on or prior to any such Available Equity Amount Reference Time; plus
(e) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount (which amount shall not
be less than zero) of any Retained Asset Sale Proceeds retained by the Borrower and its Restricted Subsidiaries during the period after
the Closing Date through and including the Available Equity Amount Reference Time[reserved]; plus
(f) to
the extent not already included in the calculation of Cumulative Consolidated Net Income, the aggregate amount (which amount shall not
be less than zero) of any Retained Refused Proceeds retained by the Borrower and its Restricted Subsidiaries during the period from and
including the Business Day immediately following the Closing Date through and including the Available Equity Amount Reference Time; plus
(g) the
aggregate amount of all Returns (to the extent made in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary
on Investments made using the Available Equity Amount during the period from and including the Business Day immediately following the
Closing Date through and including the Available Equity Amount Reference Time;
minus
the sum, without duplication, and, without taking into account the proposed portion of the Available Equity Amount calculated above to
be used at the applicable Available Equity Amount Reference Time, of:
(i) the
aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Equity Amount pursuant to Section 10.5
after the Closing Date and prior to the Available Equity Amount Reference Time;
(ii) the
aggregate amount of any Restricted Payments made by the Borrower using the Available Equity Amount pursuant to Section 10.6(f) after
the Closing Date and prior to the Available Equity Amount Reference Time; and
(iii) the
aggregate amount of prepayments, repurchases, redemptions, defeasances, acquisitions and other similar payments, made by the Borrower
or any Restricted Subsidiary using the Available Equity Amount pursuant to Section 10.7(a) after the Closing Date and prior
to the Available Equity Amount Reference Time.;
provided
that, any proceeds from the Equity Contribution (as defined in the 2019 Incremental Commitment Letter) on
the Third Amendment Effective Date shall be excluded from the calculation of Available Equity Amount.
“Available Equity
Amount Reference Time” shall have the meaning provided in the definition of the term “Available Equity Amount.”
“Available Revolving
Credit Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total Revolving Credit Commitment
over (b) the sum of (i) the aggregate principal amount of all Revolving Credit Loans and Swingline Loans then outstanding and
(ii) the aggregate Letter of Credit Obligations at such time.
“Available RP Capacity
Amount” shall mean the amount of Restricted Payments that may be made at the time of determination pursuant to Sections 10.6(b),
(f), (l), (m), and (s) minus the sum of the amount of the Available RP Capacity Amount utilized by the Borrower or any Restricted
Subsidiary to (A) make Restricted Payments in reliance on Sections 10.6(b), (f), (l), (m), and (s) and (B) incur Indebtedness
pursuant to Section 10.1(w) utilizing the Available RP Capacity Amount.
“Bail-In Action”
shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability
of an EEA Financial Institution.
“Bail-In Legislation”
shall mean 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 for such EEA Member Country from time to time which is described in the EU
Bail-In Legislation Schedule.
“Bankruptcy Code”
shall mean the provisions of Title 11 of the United States Code, 11 USC §§ 101 et seq., as amended, or any similar federal or
state law for the relief of debtors.
“Basel III”
shall mean, collectively, those certain agreements on capital requirements, leverage ratios and liquidity standards contained in “Basel
III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International Framework for
Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National Authorities Operating the Countercyclical
Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to
time), and as implemented by a Lender’s primary U.S. federal banking regulatory authority or primary non-U.S. financial regulatory
authority, as applicable.
“Beneficial Owner”
shall mean, in the case of a Lender (including the Swingline Lender and each Letter of Credit Issuer), the beneficial owner of any amounts
payable under any Credit Document for U.S. federal withholding tax purposes.
“Benefited Lender” shall have the meaning
provided in Section 13.8(a).
“BHC
Act Affiliate” of a Person means an “affiliate” (as such term is defined under, and interpreted in accordance
with, 12 U.S.C. 1841(k)) of such Person.
“Board”
shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board of Directors”
shall mean, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person, (ii) in the
case of any limited liability company, the board of managers of such Person, (iii) in the case of any partnership, the Board of Directors
of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.
“Borrower”
shall have the meaning provided in the preamble to this Agreement and shall include any Successor Borrower, to the extent applicable.
“Borrower Materials” shall have the meaning
provided in Section 13.2.
“Borrowing”
shall mean and include (a) the Incurrence of Swingline Loans from the Swingline Lender on a given date (or swingline loans
under any Extended Revolving Credit Commitments of Additional/Replacement Revolving Credit Commitments from any swingline lender
thereunder on a given date), (b) the Incurrence of one Class and Type of Initial Term Loan on the Closing Date, the First
Incremental Agreement Effective Date or the Second Incremental Agreement Effective Date, as applicable (or resulting from
conversions on a given date after the Closing Date, the First Incremental Agreement Effective Date or the Second Incremental
Agreement Effective Date, as applicable) having, in the case of Eurodollar Loans, the same Interest Period (provided that ABR
Loans Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans),
(c) the Incurrence of one Class and Type of 2019 Incremental
Term Loan on anthe Third Incremental Facility
ClosingAgreement Effective Date (or resulting from conversions on a given
date after the applicableThird Incremental Facility
ClosingAgreement Effective Date) having, in the case of Eurodollar Loans,
the same Interest Period (provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part of any
related Borrowing of Eurodollar Loans), (d) the Incurrence of one Class and Type of any other
Incremental Term Loan on an Incremental Facility Closing Date (or resulting from conversions on a given date
after the applicable Incremental Facility Closing Date) having, in the case of Eurodollar Loans, the same Interest Period
(provided that ABR Loans Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing
of Eurodollar Loans), (e) the Incurrence of one
Class and Type of Revolving Credit Loan on a given date (or resulting from conversions on a given date) having, in
the case of Eurodollar Loans, the same Interest Period (provided that ABR Loans Incurred pursuant to
Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans), (ef)
the Incurrence of one Class and Type of Additional/Replacement Revolving Credit Loan on a given date (or resulting from
conversions on a given date) having, in the case of Eurodollar Loans, the same Interest Period (provided that ABR Loans
Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans) and (fg)
the Incurrence of one Type of Extended Revolving Credit Loan of a specified Class on a given date (or resulting from
conversions on a given date) having, in the case of Eurodollar Loans, the same Interest Period (provided that ABR Loans
Incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Loans).
“Business Day”
shall mean (a) any day excluding Saturday, Sunday and any day that shall be in The City of New York a legal holiday or a day on which
banking institutions are authorized by law or other governmental actions to close and (b) if the applicable Business Day relates
to any Eurodollar Loans, any day on which dealings in deposits in U.S. Dollars are carried on in the London interbank eurodollar market.
“Capital Expenditures”
shall mean, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities)
by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as
additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Borrower and the Restricted
Subsidiaries, (b) all Capitalized Software Expenditures and Capitalized Research and Development Costs during such period and (c) all
fixed asset additions financed through Financing Lease Obligations Incurred by the Borrower and the Restricted Subsidiaries and recorded
on the balance sheet in accordance with GAAP during such period; provided that the term “Capital Expenditures” shall
not include:
(i) expenditures
made in connection with the replacement, substitution, restoration or repair of assets to the extent financed from insurance proceeds
or compensation awards paid on account of a Recovery Event (except to the extent that such proceeds otherwise increase Consolidated Net
Income for purposes of calculating Excess Cash Flow for such period),
(ii) the
purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount
of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,
(iii) the
purchase of property, plant or equipment to the extent financed with the proceeds of Dispositions outside the ordinary course of business
(except to the extent that such proceeds otherwise increase Consolidated Net Income for purposes of calculating Excess Cash Flow for such
period),
(iv) expenditures that constitute any part of Consolidated Lease Expense,
(v) expenditures
that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are paid for, or reimbursed,
by a Person other than the Borrower or any Restricted Subsidiary and for which neither the Borrower nor any Restricted Subsidiary has
provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person
(whether before, during or after such period, it being understood, however, that only the amount of expenditures actually provided or
incurred by the Borrower or any Restricted Subsidiary in such period and not the amount required to be provided or incurred in any future
period shall constitute “Capital Expenditures” in the applicable period),
(vi) the
book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that such book
value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during
such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure
necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in which such expenditure
actually is made and (y) such book value shall have been included in Capital Expenditures when such asset was originally acquired,
(vii) any
expenditures made as payments of the consideration for an Acquisition (or other similar Investment) and expenditures made in connection
with the Transactions and any amounts recorded pursuant to purchase accounting required under GAAP pertaining to Acquisitions (or other
similar Investments) or the Transactions,
(viii) any
capitalized interest expense and internal costs reflected as additions to property, plant or equipment in the consolidated balance sheet
of the Borrower and the Restricted Subsidiaries or capitalized as Capitalized Software Expenditures and Capitalized Research and Development
Costs for such period, or
(ix) any
non-cash compensation or other non-cash costs reflected as additions to property, plant and equipment, Capitalized Software Expenditures
and Capitalized Research and Development Costs in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capital Stock”
shall mean 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 and including membership interests and partnership interests)
and, except to the extent constituting Indebtedness, any and all warrants, rights or options to purchase, acquire or exchange any of the
foregoing.
“Capitalized Research
and Development Costs” shall mean, for any period, all research and development costs that are, or are required to be, in accordance
with GAAP, reflected as capitalized costs on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capitalized Software
Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities)
by the Borrower and the Restricted Subsidiaries during such period in respect of purchased software or internally developed software and
software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries.
“Cash Collateral” shall have the meaning
provided in Section 3.8(c).
“Cash Collateralize” shall have the meaning
provided in Section 3.8(c).
“Cash Equivalents” shall mean:
(b) Australian
Dollars, Canadian Dollars, Euros, Pounds Sterling or any national currency of any participating member state of the EMU;
(c) other
currencies held by the Borrower or the Restricted Subsidiaries from time to time in the ordinary course of business;
(d) securities
issued or unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof, in each case
having maturities of not more than 24 months from the date of acquisition thereof;
(e) securities
issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority of any
such state, commonwealth or territory or any public instrumentality thereof or any political subdivision or taxing authority of any such
state or commonwealth or territory or any public instrumentality thereof having maturities of not more than 24 months from the date of
acquisition thereof and, at the time of acquisition, having an Investment Grade Rating;
(f) commercial
paper or variable or fixed rate notes issued by or guaranteed by any Lender or any bank holding company owning any Lender;
(g) commercial
paper or variable or fixed rate notes maturing no more than 24 months from the date of acquisition thereof and, at the time of acquisition,
having an Investment Grade Rating;
(h) time
deposits with, or domestic and eurocurrency certificates of deposit, demand deposits or bankers’ acceptances maturing no more than
two years after the date of acquisition thereof and overnight bank deposits, in each case, issued by, any Lender or any other bank having
combined capital and surplus of not less than $100,000,000 (or the Dollar equivalent as of the date of determination);
(i) repurchase
obligations for underlying securities of the type described in clauses (d), (e) and (h) above entered into with any bank meeting
the qualifications specified in clause (h) above or securities dealers of recognized national standing;
(j) marketable
short-term money market and similar securities having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at
any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another Rating Agency);
(k) readily
marketable direct obligations issued by any non-U.S. government or any political subdivision or public instrumentality thereof, in each
case having an Investment Grade Rating with maturities of 24 months or less from the date of acquisition;
(l) Investments
with average maturities of no more than 24 months from the date of acquisition in money market funds rated AAA- (or the equivalent thereof)
or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P
shall be rating such obligations, an equivalent rating from another Rating Agency);
(m) with
respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains
its chief executive office and principal place of business; provided such country is a member of the Organization for Economic
Cooperation and Development, in each case maturing within 24 months after the date of acquisition thereof, (ii) certificates of deposit
of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in
which such Foreign Subsidiary maintains its chief executive office and principal place of business; provided such country is a
member of the Organization for Economic Cooperation and Development, and who otherwise meets the qualifications specified in clause (f) above
(any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from
the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
(n) Indebtedness
or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s
(or, if at any time neither S&P or Moody’s shall be rating such obligations, an equivalent rating from another Rating Agency)
with maturities of 24 months or less from the date of acquisition;
(o) in
the case of investments by any Foreign Subsidiary or investments made in a country outside the United States of America, Cash Equivalents
shall also include (i) investments of the type and maturity described in clauses (a) through (n) above of foreign obligors,
which investments or obligors (or the parents of such obligors) have ratings, described in such clauses or equivalent ratings from comparable
foreign Rating Agencies and (ii) other short term investments utilized by Foreign Subsidiaries in accordance with normal investment
practices for cash management in investments analogous to the foregoing investments described in clauses (a) through (n) of
this paragraph; and
(p) investment
funds investing 90% of their assets in securities of the types described in clauses (a) through (o) above.
Notwithstanding the foregoing,
Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (a), (b) and (c) above;
provided that such amounts are converted into any currency or securities listed in clauses (a) through (d) as promptly
as practicable and in any event within ten (10) Business Days following the receipt of such amounts.
“Cash Management
Agreement” shall mean any agreement entered into from time to time by Holdings, the Borrower or any of the Restricted Subsidiaries
in connection with cash management services for collections, other Cash Management Services or for operating, payroll and trust accounts
of such Person, including automatic clearing house services, controlled disbursement services, electronic funds transfer services, information
reporting services, lockbox services, stop payment services and wire transfer services.
“Cash Management
Bank” shall mean any Person that is a Lender, Lead Arranger, Joint Bookrunner, Agent or any Affiliate of a Lender, Lead Arranger,
Joint Bookrunner or Agent at the time it provides any Cash Management Services or any Person that shall have become a Lender, an Agent
or an Affiliate of a Lender or an Agent at any time after it has provided any Cash Management Services.
“Cash Management
Obligations” shall mean obligations owed by Holdings, the Borrower or any Restricted Subsidiary to any Cash Management Bank
in connection with, or in respect of, any Cash Management Services.
“Cash Management
Services” shall mean (a) commercial credit cards, merchant card services, purchase or debit cards, including non-card e-payables
services, (b) treasury management services (including controlled disbursement, overdraft automatic clearing house fund transfer services,
return items and interstate depository network services) and (c) any other demand deposit or operating account relationships or other
cash management services, including under any Cash Management Agreements.
“CFC” shall
mean a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“Change in
Law” shall mean the occurrence, after the Closing Date, of any of the following: (a) the adoption of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration or interpretation thereof
by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having
the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in
connection therewith and (y) Basel III and all requests, rules, guidelines or directives thereunder or issued in connection
therewith, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” shall
mean and be deemed to have occurred if:
(a) (i) at
any time prior to a Qualifying IPO, (x) the Permitted Holders shall at any time cease, directly or indirectly, to have the power
to vote or direct the voting of at least 35% of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt,
any New Holdings or Successor Holdings) or (y) the acquisition by (A) any Persons (other than any one or more Permitted Holders)
or (B) Persons (other than any one or more Permitted Holders) that are together a “group” (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act (or any successor provision), but excluding any employee benefit plan of such Person or “group”
or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), including any group acting for
the purpose of acquiring, holding or Disposing of Capital Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor
Holdings) (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor provision)) of a percentage of the
total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) that is greater
than the percentage of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor
Holdings) in the aggregate, directly or indirectly, beneficially owned by the Permitted Holders and/or (ii) at any time on and after
a Qualifying IPO, the acquisition by (A) any Person (other than any one or more Permitted Holders) or (B) Persons (other
than any one or more Permitted Holders) that are together a “group” (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act (or any successor provision), but excluding any employee benefit plan of such Person or “group” or entity
acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), including any group acting for the purpose
of acquiring, holding or Disposing of Capital Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings)
(within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor provision)) of the total voting power of the
Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) having more than the greater of (A) 35%
of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) and
(B) the percentage of the total voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or
Successor Holdings) owned, directly or indirectly, beneficially in the aggregate by the Permitted Holders, unless in the case of either
clause (i) or (ii) above, the Permitted Holders have, at such time, the right or the ability by voting power, contract, proxy
or otherwise to elect, appoint, nominate or designate at least a majority of the aggregate votes on the Board of Directors of Holdings
(or, for the avoidance of doubt, any New Holdings or Successor Holdings); and/or
(b) at
any time prior to a Qualifying IPO of the Borrower (or, for the avoidance of doubt, a Successor Borrower), the failure of Holdings (or,
for the avoidance of doubt, any New Holdings or Successor Holdings), directly or indirectly through wholly owned subsidiaries, to own
beneficially and of record, all of the Capital Stock of the Borrower; and/or
(c) a
“change of control” or any comparable event under, and as defined in any documentation governing any other First Lien Obligations
(other than any Cash Management Agreement or Hedging Agreement) shall have occurred.
Notwithstanding
the preceding or any provision of Rule 13d-3 of the Exchange Act (or any successor provision), (i) a Person or group shall not
be deemed to beneficially own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting
or option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement, (ii) if
any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of Holdings (or, for the avoidance of doubt,
any New Holdings or Successor Holdings) beneficially owned, directly or indirectly, by any Permitted Holders that are part of such group
shall not be treated as being beneficially owned by any other member of such group for purposes of determining whether a Change of Control
has occurred and (iii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of
its ownership of Voting Stock or other securities of such other Person’s Parent Entity (or related contractual rights) unless it
owns 50.0% or more of the total voting power of the Voting Stock of such Parent Entity. For purposes of this definition and any related
definition to the extent used for purposes of this definition, at any time when 50.0% or more of the total voting power of the Voting
Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) is directly or indirectly owned by a Parent
Entity, all references to Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) shall be deemed to refer to
its ultimate Parent Entity (but excluding any Investor) that directly or indirectly owns such Voting Stock.
“Class”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit
Loans, Initial Term Loans, 2019 Incremental Term Loans, any other
Incremental Term Loans (of a Class), Extended Term Loans (of the same Extension Series), Extended Revolving Credit Loans (of the same
Extension Series and any related swingline loans thereunder), Additional/Replacement Revolving Credit Loans (of the same Class and
any related swingline loans thereunder) or Swingline Loans, and, when used in reference to any Commitment, refers to whether such Commitment
is a Revolving Credit Commitment, an Initial Term Loan Commitment, ana
2019 Incremental Term Loan Commitment, any other Incremental Term Loan Commitment
(of the same Class), an Extended Revolving Credit Commitment (of the same Extension Series and any related swingline commitment thereunder),
an Additional/Replacement Revolving Credit Commitment (of the same Class and any related swingline commitment thereunder) or a Swingline
Commitment, and when used in reference to any Lender, refers to whether such Lender has a Loan or Commitment of such Class.
“Claims” shall have meaning provided in
the definition of Environmental Claims.
“Closing Date” shall mean the
date of the initial Credit Event under this Agreement, which date is August 4, 2017.
“Closing Date Indebtedness”
shall mean Indebtedness outstanding on the date hereof and, to the extent in excess of $2,500,000, described on Schedule 10.1.
“Closing Date Term Loan Facility”
shall have the meaning provided for such term in the recitals to this Agreement.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time. Section references to the Code are to the Code, as in
effect on the Closing Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Collateral”
shall have the meaning provided for such term or a similar term in each of the Security Documents; provided that, with respect
to any Mortgages, “Collateral” shall mean “Mortgaged Property” as defined therein.
“Collateral Agent”
shall mean UBS AG, Stamford Branch or any successor thereto appointed in accordance with the provisions of Section 12.11, together
with any of its Affiliates, that is appointed as a sub-agent in accordance with Section 12.4, as the collateral agent for the Secured
Parties.
“Commitment”
shall mean, (a) with respect to each Lender (to the extent applicable), such Lender’s Initial Term Loan Commitment, 2019
Incremental Term Loan Commitment, any other Incremental Term Loan Commitment, Revolving Credit Commitment, Extended Revolving
Credit Commitment, Additional/Replacement Revolving Credit Commitment or any combination thereof (as the context requires) and (b) with
respect to the Swingline Lender, or swingline lender under any Extended Revolving Credit Commitments or Additional/Replacement Revolving
Credit Commitments, its Swingline Commitment or swingline commitment, as applicable.
“Commitment Fee” shall have the meaning
provided in Section 4.1(a).
“Commitment Fee Rate”
shall mean a rate equal to the following percentages per annum, based upon the Consolidated First Lien Debt to Consolidated EBITDA Ratio
as set forth in the most recent certificate delivered to the Administrative Agent pursuant to Section 9.1(d):
Pricing
Level
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|
|
Consolidated First Lien Debt to Consolidated
EBITDA Ratio
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|
Commitment
Fee Rate
|
|
|
1
|
|
|
Greater than 4.75:1.00
|
|
|
0.50
|
%
|
|
2
|
|
|
Less than or equal to 4.75:1.00 but greater than 4.25:1.00
|
|
|
0.375
|
%
|
|
3
|
|
|
Less than or equal to 4.25:1.00
|
|
|
0.25
|
%
|
Notwithstanding anything
to the contrary in this definition, during the period from the Closing Date until the Initial Financial Statement Delivery Date, the
Commitment Fee Rate shall be determined by “Pricing Level 1” set forth in the table above. Any increase or decrease in the
Commitment Fee Rate resulting from a change in the Consolidated First Lien Debt to Consolidated EBITDA Ratio shall become effective as
of the first Business Day immediately following the date the certificate delivered pursuant to Section 9.1(d) is delivered
to the Administrative Agent; provided that, at the option of the Required Lenders, the highest pricing level (as set forth in
the table above) shall apply (a) as of the first Business Day after the date on which Section 9.1 Financials were required
to have been delivered but have not been delivered pursuant to Section 9.1 and shall continue to so apply to and including the date
on which such Section 9.1 Financials are so delivered (and thereafter the pricing level otherwise determined in accordance with
this definition shall apply) and (b) as of the first Business Day after an Event of Default under Section 11.1 or Section 11.5
shall have occurred and be continuing and, in the case of Section 11.1, the Administrative Agent has notified the Borrower that
the highest pricing level applies, and shall continue to so apply to but excluding the date on which such Event of Default shall cease
to be continuing (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).
In the event that the Administrative
Agent and the Borrower determine that any Section 9.1 Financials previously delivered were incorrect or inaccurate (regardless of
whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would
have led to the application of a higher Commitment Fee Rate for any Applicable Period than the Commitment Fee Rate applied for such Applicable
Period, then (a) the Borrower shall as soon as practicable deliver to the Administrative Agent the correct Section 9.1 Financials
for such Applicable Period, (b) the Commitment Fee Rate shall be determined as if the pricing level for such higher Commitment Fee
Rate were applicable for such Applicable Period, and (c) the Borrower shall within 10 Business Days of demand thereof by the Administrative
Agent pay to the Administrative Agent the accrued additional interest owing as a result of such increased Commitment Fee Rate for such
Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement. This paragraph
shall not limit the rights of the Administrative Agent and Lenders with respect to Section 2.8(c) and Section 11.
“Commitment Letter”
shall mean the Credit Facilities Commitment Letter, dated as of June 19, 2017, among UBS AG, Stamford Branch, UBS Securities LLC,
SunTrust Bank, SunTrust Robinson Humphrey, Inc. and Holdings.
“Commodity Exchange
Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” shall have the meaning
provided in Section 13.2.
“Company Merger” shall have the meaning
provided in the recitals to this Agreement. “Confidential Information” shall have the meaning provided in Section 13.16.
“Confidential Information
Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated July 2017, delivered to the prospective
lenders in connection with this Agreement.
“Consolidated Depreciation
and Amortization Expense” shall mean, with respect to any Person for any period, the total amount of depreciation and amortization
expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees and expenses, Capital
Expenditures, including Capitalized Software Expenditures, intangible assets established through recapitalization or purchase accounting,
and the accretion or amortization of OID resulting from the Incurrence of Indebtedness at less than par, of such Person for such period
on a consolidated basis and as determined in accordance with GAAP.
“Consolidated EBITDA” shall mean, for
any period, the Consolidated Net Income for such period, plus:
(a) without duplication and to the extent already deducted or, in the case of clauses (vi) and (viii) below, to the extent not included (and not added back or excluded) in arriving at such Consolidated Net Income, the sum of the following amounts for such period:
(i) provision
for taxes based on income or profits or capital, including, without limitation, federal, foreign, state, local, franchise, unitary, property,
excise, value added and similar taxes and foreign withholding taxes paid or accrued during such period (including taxes in respect of
expatriated or repatriated funds and any penalties and interest related to such taxes or arising from any tax examinations),
(ii) Consolidated
Interest Expense and, to the extent not reflected in such Consolidated Interest Expense, bank and letter of credit fees, debt rating monitoring
fees and net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk,
amortization of deferred financing fees, OID or costs, costs of surety bonds in connection with financing
activities, together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (A) through
(N) thereof,
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|
(iii)
|
Consolidated Depreciation and Amortization Expense,
|
(iv) the
amount of any restructuring charge, accrual or reserve or non-recurring (on a per-transaction basis) integration costs and related costs
and charges, including proposed or actual hiring and on-boarding of any senior level executives and any one-time (on a per- transaction
basis) costs or charges incurred in connection with Acquisitions and other Investments and costs, charges and expenses, including put
arrangements and headcount reductions or other similar actions including severance charges in respect of employee termination or relocation
costs, excess pension charges, severance and lease termination expenses and other expenses related to the closure, discontinuance, consolidation
and integration of locations, IT infrastructure, legal entities and/or facilities,
(v) any
other non-cash charges, including (A) all non-cash compensation expenses and costs, (B) the non-cash impact of recapitalization
or purchase accounting, (C) the non-cash impact of accounting changes or restatements, (D) any non-cash portion of Consolidated
Lease Expense and (E) other non-cash charges; provided that, to the extent that any such non-cash charges represent an accrual
or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted
from Consolidated EBITDA in such future period to such extent; and provided, further, that amortization of a prepaid cash
item that was paid in a prior period shall be excluded),
(vi) the
aggregate amount of Consolidated Net Income for such period attributable to non-controlling interests of third parties in any non Wholly-Owned
Subsidiary, excluding cash distributions in respect thereof to the extent already included in Consolidated Net Income,
(vii) the
amount of management, monitoring, consulting and advisory fees, termination payments, indemnities and related expenses paid or accrued
in such period to (or on behalf of) the Investors (including amortization thereof) and any directors’ fees or reimbursements (including
pursuant to any management agreement) in any such case to the extent otherwise permitted under Section 10.11 or to (or on behalf
of) Affiliates of the Target on or prior to the Closing Date (and following the Closing Date, with respect to indemnification or other
amounts owed in respect of arrangements in effect prior to the Closing Date),
(viii) (A) pro
forma adjustments, including pro forma “run rate” cost savings, operating expense reductions and other synergies related
to the Transactions projected by the Borrower in good faith to result from actions that have been taken, actions with respect to which
substantial steps have been taken or actions that are expected to be taken (in each case, in the good faith determination of the Borrower),
in any such case within eight fiscal quarters after the Closing Date (or, to the extent identified and reasonably acceptable to the Lead
Arrangers, undertaken or implemented prior to the Closing Date) and, without duplication and (B) pro forma adjustments, including
pro forma “run rate” cost savings, operating expense reductions, and other synergies related to mergers, business combinations,
Acquisitions and similar Investments, Dispositions and other similar transactions, or related to restructuring initiatives, cost savings
initiatives and other initiatives projected by the Borrower in good faith to result from actions that have been taken, actions with respect
to which substantial steps have been taken or actions that are expected to be taken (in each case, in the good faith determination of
the Borrower), in any such case, within eight fiscal quarters after the date of consummation of such merger, business combination, Acquisition
or similar Investment, Disposition or other similar transaction or the initiation of such restructuring initiative, cost savings initiative
or other initiative; provided further, that, (x) for
the purpose of this clause (viii), (I) any such adjustments shall be added to Consolidated EBITDA for each Test Period until fully
realized and shall be calculated on a pro forma basis as though such adjustments had been realized on the first day of the relevant Test
Period and shall be calculated net of the amount of actual benefits realized from such actions, (II) any such adjustments shall
be reasonably identifiable and (III) no such adjustments shall be added pursuant to this clause (viii) to the extent duplicative
of any items related to adjustments included in the definition of Consolidated Net Income, clause (iv) above or pursuant to the
effects of Section 1.12 (it being understood that for purposes of the foregoing and Section 1.12 “run rate” shall
mean the full recurring benefit that is associated with any such action), and
(y) following the Third Incremental Agreement Effective Date, solely with respect to transactions and adjustments related to restructuring
initiatives, cost savings initiatives and other initiatives not contemplated on or prior to the Third Incremental Agreement Effective
Date (and other than, for the avoidance of doubt, with respect to the Transactions, the 2019 Transactions, and other adjustments that
may arise from mergers, business combinations, Acquisitions and similar Investments, Dispositions and other similar transactions), the
aggregate amount of adjustments included in Consolidated EBITDA for any Test Period pursuant
to clause (B) of this
clause (viii) and pursuant to Section 1.12(c) shall not exceed 30% of Consolidated EBITDA in the aggregate for such Test
Period (with such calculation being made after giving pro forma effect to any adjustments made pursuant to clause(B) of this clause
(viii) and pursuant to Section 1.12(c)),
(ix) Receivables
Fees and the amount of loss on Dispositions of receivables and related assets to the Receivables Subsidiary in connection with a Qualified
Receivables Facility,
(x) to
the extent funded with cash contributed to the capital of the Borrower or the Net Cash Proceeds of an issuance of Capital Stock of the
Borrower (other than Disqualified Capital Stock) solely to the extent that such Net Cash Proceeds are excluded from the calculation of
the Available Equity Amount, (A) any deductions, charges, costs or expenses (including compensation charges and expenses) incurred
by the Borrower or any Restricted Subsidiary pursuant to any management equity plan or share option plan or any other management or employee
benefit plan or agreement, pension plan, any severance agreement or any equity subscription or shareholder agreement or any distributor
equity plan or agreement or in connection with grants of stock appreciation or similar rights or other rights to directors, officers,
managers and/or employees of any Parent Entity, any Equityholding Vehicle, the Borrower or any of its Restricted Subsidiaries and (B) any
charges, costs, expenses accruals or reserves in connection with the rollover, acceleration or payout of Capital Stock held by directors,
officers, managers and/or employees of any Parent Entity, any Equityholding Vehicle, the Borrower or any of its Restricted Subsidiaries,
(xi) 100%
of the increase in Deferred Revenue as of the end of such period from Deferred Revenue as of the beginning of such period,
(xii) cash
receipts (or any netting arrangements resulting in reduced cash expenditures) not otherwise included in Consolidated EBITDA in any period
to the extent non- cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to paragraph
(b) below for any previous period and not added back,
(xiii) any
net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including
amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at
the date of initial application of Financial Accounting Standards Board’s Accounting Standards Codification No. 715, any non-cash
deemed finance charges in respect of any pension liabilities, the curtailment or modification of pension and post-retirement employee
benefit plans (including settlement of pension liabilities), and any other items of a similar nature,
(xiv) in
respect of any Hedging Obligations that are terminated (or early extinguished) prior to the stated settlement date, any loss (or gain
as applicable) reflected in Consolidated Net Income in or following the quarter in which
such termination or early extinguishment occurs,
(xv) all
adjustments, other than normalized adjustments, of the type that are described on page 41 of the Public Lenders Presentation dated
July 2017, to the extent such adjustments, without duplication, continue to be applicable to such period,
(xvi) costs,
expenses, charges, accruals, reserves (including restructuring costs related to acquisitions prior to, on or after the Closing Date) or
expenses attributable to the undertaking and/or the implementation of cost savings initiatives, operating expense reductions and other
restructuring and integration and transition costs, costs associated with inventory category and distribution optimization programs, pre-opening,
opening and other business optimization expenses (including software development costs), consolidation, discontinuance and closing costs
and expenses for locations and/or facilities, signing, retention and completion bonuses, costs related to entry and expansion into new
markets (including consulting fees) and to modifications to pension and post-retirement employee benefit plans, system design, establishment
and implementation costs and project start-up costs,
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|
(xvii)
|
adjustments consistent with Regulation S-X of the Securities Act,
|
(xviii) changes
in earn-out obligations incurred in connection with any Acquisition or other similar Investment permitted under this Agreement and paid
during the applicable period and any similar acquisitions completed prior to the Closing Date, and
(xix) costs
related to the implementation of operational and reporting systems and technology initiatives, less
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|
(b)
|
without duplication and to the extent included in arriving at such Consolidated Net Income,
|
(i) any
non-cash gains, but excluding any non-cash gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash
items that reduced Consolidated EBITDA in any prior period, and
(ii) 100%
of the decrease in Deferred Revenue as of the end of such period from the Deferred Revenue as of the beginning of such period, in each
case, as determined on a consolidated basis for the Borrower and the Restricted Subsidiaries in accordance with GAAP; provided that,
(I) there
shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property,
business or asset acquired by the Borrower or any Restricted Subsidiary during such period (other than any Unrestricted Subsidiary) to
the extent not subsequently sold, transferred or otherwise Disposed of during such period (but not including the Acquired EBITDA of any
related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired, including
pursuant to the Transactions or pursuant to a transaction consummated prior to the Closing Date, and not subsequently so Disposed of,
an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted
Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such
Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical
pro forma basis; and
(II) there
shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset sold,
transferred or otherwise Disposed of, closed or classified as discontinued operations by the Borrower or any Restricted Subsidiary to
the extent not subsequently reacquired, reclassified or continued, in each case, during such period (each such Person (other than an Unrestricted
Subsidiary), property, business or asset so sold, transferred or otherwise Disposed of, closed or classified, a “Sold Entity
or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during
such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such Sold Entity
or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer,
disposition, closure, classification or conversion) determined on a historical pro forma basis.
Notwithstanding anything to the
contrary contained herein and subject to adjustment as provided in clauses
(I) and (II) of the immediately preceding proviso with
respect to acquisitions and Dispositions occurring prior to, on and following the Closing Date and, without any duplication of any
adjustments already included in the amounts below, other adjustments contemplated by Section 1.12, clauses (a)(i), (a)(viii),
(a)(xv) and (a)(xvi) above, Consolidated EBITDA shall be deemed to be $13,940,000, $12,635,000, $12,370,000 and
$11,155,000, respectively, for the fiscal quarters ended June 30, 2016, September 30, 2016, December 31, 2016 and
March 31, 2017.
“Consolidated EBITDA
to Consolidated Interest Expense Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated EBITDA
for the most recent Test Period ended on or prior to such date of determination to (b) Consolidated Interest Expense for such period;
provided that, for purposes of calculating the Consolidated EBITDA to Consolidated Interest Expense Ratio for any period ending
prior to the first anniversary of the Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated 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.
“Consolidated First
Lien Debt” shall mean, without duplication, as of any date of determination, (a) the aggregate principal amount of all
Consolidated Total Debt (determined without regard to clause (b) of the definition thereof) outstanding hereunder as of such date
(but excluding the effects of any discounting of Indebtedness resulting from the application of recapitalization or purchase accounting
in connection with the Transactions, any Acquisition or other similar Investment) and all other Consolidated Total Debt (determined without
regard to clause (b) of the definition thereof) secured by Liens on the Collateral that do not rank junior in priority to the Liens
on the Collateral securing the Obligations minus (b) the aggregate amount of cash and Cash Equivalents on the consolidated
balance sheet of the Borrower and the Restricted Subsidiaries on such date, excluding cash and Cash Equivalents which are or should be
listed as “restricted” on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as of such date.
It is understood that to the extent the Borrower or any Restricted Subsidiary Incurs any Indebtedness and receives the proceeds of such
Indebtedness, for purposes of determining any Incurrence test under this Agreement and whether the Borrower is in pro forma compliance
with any such test, the proceeds of such Incurrence shall not be considered cash or Cash Equivalents for purposes of any “netting”
pursuant to clause (b) of this definition.
“Consolidated First
Lien Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated First
Lien Debt as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated
EBITDA for such Test Period.
“Consolidated Interest
Expense” shall mean, with respect to any Person for any period, without duplication, the sum of:
(a) the
consolidated cash interest expense of such Person for such period, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of such Person, (including (i) all commissions, discounts and other cash fees and
charges owed with respect to letters of credit and bankers’ acceptance financing, (ii) the cash interest component of
Financing Lease Obligations, (iii) net cash payments, if any, made (less net cash payments, if any, received), pursuant to
obligations under Hedging Agreements for Indebtedness) and (iv) Restricted Payments on account of Disqualified Stock made
pursuant to Section 10.6(r), but in any event excluding, for the avoidance of doubt,
(A) accretion
or amortization of original issue discount resulting from the Incurrence of Indebtedness at less than par;
(B) amortization
of deferred financing costs, debt issuance costs, commissions, fees and expenses;
(C) any
accretion or accrual of, or accrued interest on discounted liabilities not constituting Indebtedness during such period and any prepayment,
redemption, repurchase, defeasance, acquisition or similar premium, penalty or inducement or other loss in connection with the early Refinancing
or modification of Indebtedness paid or payable during such period;
(D) any
interest in respect of items excluded from Indebtedness in the proviso to the definition thereof;
(E) penalties
or interest relating to taxes and any other amount of non-cash interest resulting from the effects of the acquisition method of accounting
or pushdown accounting;
(F) non-cash
interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedging Agreements or other derivative
instruments pursuant to Financial Accounting Standards Board’s Accounting Standards Codification No. 815 (Derivatives and Hedging);
(G) any
one-time cash costs associated with breakage in respect of Hedging Agreements for interest rates and any payments with respect to make-whole
premiums or other breakage costs in respect of any Indebtedness;
(H) all
additional interest or liquidated damages then owing pursuant to any registration rights agreement and any comparable “additional
interest” or liquidated damages with respect to other securities designed to compensate the holders thereof for a failure to publicly
register such securities;
(I) any
expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or purchase
accounting;
(J) any
expensing of bridge, arrangement, structuring, commitment or other financing fees (excluding, for the avoidance of doubt, the Commitment
Fees);
(K) any
lease, rental or other expense in connection with Non-Financing Lease Obligations,
(L) Receivables
Fees, commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Facility,
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(M)
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any capitalized interest, whether paid in cash or otherwise; and
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(N) any
other non-cash interest expense, including capitalized interest, whether paid or accrued; less
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(b)
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cash interest income of the Borrower and the Restricted Subsidiaries for such period.
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For purposes of this definition,
interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the
rate of interest implicit in such Financing Lease Obligation in accordance with GAAP.
“Consolidated Lease
Expense” shall mean, for any period, all rental expenses of any Person during such period in respect of Non-Financing Lease
Obligations for real or personal property (including in connection with Sale Leasebacks), but excluding real estate taxes, insurance costs
and common area maintenance charges and net of sublease income; provided that Consolidated Lease Expense shall not include (a) obligations
under vehicle leases entered into in the ordinary course of business, (b) all such rental expenses associated with assets acquired
pursuant to the Transactions and pursuant to an Acquisition (or other similar Investment) to the extent that such rental expenses relate
to Non-Financing Lease Obligations (i) in effect at the time of (and immediately prior to) such acquisition and (ii) related
to periods prior to such acquisition, (c) Financing Lease Obligations, all as determined on a consolidated basis in accordance with
GAAP and (d) the effects from applying purchase accounting.
“Consolidated Net
Income” shall mean, with respect to any Person for any period, the aggregate of the Net Income attributable to such Person for
such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without
duplication, and on an after-tax basis to the extent appropriate,
(a) any
extraordinary, unusual or nonrecurring gains, losses or expenses; costs associated with preparations for, and implementation of, compliance
with the requirements of the Sarbanes-Oxley Act of 2002 and other Public Company Costs; earn-out payments or other consideration paid
or payable in connection with an Acquisition to the extent recorded as cash expense; severance costs; relocation costs; integration costs;
pre-opening, opening, consolidation, discontinuation, integration and closing costs and expenses for locations, facilities, IT infrastructure
and for legal entities (including any legal entity restructuring); signing, retention and completion bonuses; transition costs; restructuring
costs; and litigation settlements, fines, judgments, orders or losses and related costs and expenses shall be excluded,
(b) the
Net Income for such period shall not include the cumulative effect of a change in accounting principles, including if reflected through
a restatement or retroactive application, during such period,
(c) any
net gains or losses realized on (i) Disposed of, discontinued or abandoned operations (which shall not, unless the Borrower otherwise
elects, include assets then held for sale), or (ii) the sale or other Disposition of any Capital Stock of any Person, shall be excluded,
(d) any
net gains or losses realized attributable to asset Dispositions, other than those in the ordinary course of business, as determined in
good faith by the Borrower, and Dispositions of books of business, client lists or related goodwill in connection with the departure of
related employees, shall be excluded,
(e) the
Net Income for such period of any Person that is not the Borrower or a Restricted Subsidiary of the Borrower, or that is accounted for
by the equity method of accounting, shall be excluded; provided that the Consolidated Net Income of the Borrower and its Restricted
Subsidiaries shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents
(or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) to the referent
Person or a Restricted Subsidiary thereof in respect of such period,
(f) solely
for the purpose of determining the amount available under clause (ii) of the definition of “Available Amount,” the Net
Income for such period of any Restricted Subsidiary (other than any Credit Party) shall be excluded to the extent the declaration or payment
of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without
any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of
the terms of its charter or any judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary
or its equityholders (other than: (i) restrictions that have been waived or
otherwise released, (ii) restrictions pursuant to this Agreement and (iii) restrictions arising pursuant
to an agreement or instrument if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are
not materially less favorable to the Secured Parties than the encumbrances and restrictions contained in the Credit Documents (as determined
by the Borrower in good faith)) unless such restriction with respect to the payment of dividends or similar distributions has been legally
waived; provided that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions
or other payments actually paid in cash or Cash Equivalents (or, if not paid in cash or Cash Equivalents, but later converted into cash
or Cash Equivalents, upon such conversion) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent
not already included therein,
(g) any
income (loss) (less all fees and expenses or charges related thereto) from the purchase, acquisition, early extinguishment, conversion
or cancellation of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off
and premiums paid) shall be excluded,
(h) any
impairment charge, asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible
assets (including goodwill), long-lived assets, Investments in debt and equity securities, the amortization of intangibles, and the
effects of adjustments to accruals and reserves during a prior period relating to any change in the methodology of calculating reserves
for returns, rebates, warranties, inventories and other chargebacks (including government program rebates), shall be excluded,
(i) any
(i) non-cash compensation expense as a result of grants of stock appreciation or similar rights, profits interests, stock options,
phantom equity, restricted stock or other rights or equity incentive programs and any non-cash charges associated with the rollover, acceleration
or payout of Capital Stock or options, phantom equity, profits interests or other rights with respect thereto by, or to, officers, directors,
employees or consultants of Holdings, the Borrower or any of the Restricted Subsidiaries, or any Parent Entity or Equityholding Vehicle,
(ii) income (loss) attributable to deferred compensation plans or trusts and (iii) any expense (including taxes) in respect
of payments made to option holders or holders of profits interests, phantom equity, restricted stock or restricted stock units of the
Borrower or any Parent Entity or Equityholding Vehicle in connection with, or as a result of, any distribution being made to equityholders
of the Borrower or any Parent Entity or Equityholding Vehicle, which payments are being made to compensate such option holders or holders
of profits interests, phantom equity, restricted stock or restricted stock units as though they were equityholders at the time of, and
entitled to share in, such distribution (to the extent such distribution to equityholders is excluded from Consolidated Net Income), shall
be excluded,
(j) any
fees and expenses (including any commissions or discounts) incurred during such period, or any amortization thereof for such period, in
connection with any Acquisition, Investment, asset Disposition, Change of Control, Incurrence, Refinancing, prepayment, redemption,
repurchase, acquisition, defeasance, extinguishment, retirement or repayment of Indebtedness, issuance of Capital Stock, or amendment,
supplement or other modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing
Date and any such transaction undertaken, but not completed and/or not successful) and any charges or non-recurring merger costs incurred
during such period as a result of any such transaction shall be excluded,
(k) accruals
and reserves that are established or adjusted as a result of the Transactions, or any Acquisition or Investment in accordance with GAAP,
(l) the
effects from applying purchase accounting, including applying recapitalization or purchase accounting to inventory, property and equipment,
software, goodwill and other intangible assets, in-process research and development, post-employment benefits, leases, Deferred Revenue
and debt-like items required or permitted by GAAP (including the effects of such adjustments pushed down to the Borrower or the Restricted Subsidiaries), as a result of
the Transactions or any other consummated Acquisition, or the amortization or write-off of any amounts thereof, shall be excluded,
(m) any
foreign exchange gains or losses (whether or not realized) resulting from the impact of foreign currency changes on the valuation of assets
and liabilities on the consolidated balance sheet of the Borrower shall be excluded,
(n) any
non-cash interest expense and non-cash interest income, in each case to the extent there is no associated cash disbursement or receipt,
as the case may be, before the Latest Maturity Date, shall be excluded,
(o) the
amount of any cash tax benefits related to the tax amortization of intangible assets in such period shall be included,
(p) Transaction
Expenses (including any charges associated with the rollover, acceleration or payout of Capital Stock by management of the Target or any
of its Subsidiaries or Parent Entities in connection with the Transactions) shall be excluded,
(q) income
or expense related to changes in the fair value of contingent liabilities recorded in connection with the Transactions or any Acquisition
or other similar Investment shall be excluded,
(r) proceeds
received from business interruption insurance (to the extent not reflected as revenue or income in Net Income and to the extent that the
related loss was deducted in the determination of Net Income), shall be included,
(s) charges,
losses, lost profits, expenses or write-offs to the extent indemnified, reimbursed or insured by a third party, including expenses covered
by indemnification or reimbursement provisions in connection with the Transactions, an Acquisition or any other similar Investment, in
each case, to the extent that indemnification, reimbursement or insurance coverage has not been denied, the Borrower in good faith believes
that such amounts are recoverable from such indemnitors, reimbursers or insurers, and so long as such amounts are actually paid or reimbursed
to the Borrower or any of its Restricted Subsidiaries in cash or Cash Equivalents within one year after the related amount is first added
to Consolidated Net Income pursuant to this clause (s) (and if not so reimbursed within one year, such amount shall be deducted from
Consolidated Net Income during the next measurement period), shall be excluded; provided that such amounts shall only be included
in Consolidated Net Income under clause (ii) of the definition of “Available Amount” after such amounts are actually
reimbursed in cash,
(t) any
non-cash expenses, accruals, reserves or income related to adjustments to historical tax exposures shall be excluded; provided
that, if any such non-cash items represent an accrual or reserve for cash payments in any future period, the cash payment in respect thereof
in such future period shall be subtracted from Consolidated Net Income in such future period, but only to the extent of such non-cash
expense, accrual or reserve excluded pursuant to this clause (t),
(u) any
non-cash gain or loss attributable to the mark-to-market movement in the valuation of Hedging Obligations (to the extent the cash impact
resulting from such gain or loss has not been realized) or other derivative instruments pursuant to Financial Accounting Standards Board’s
Accounting Standards Codification No. 815-Derivatives and Hedging, shall be excluded,
(v) any
gain or loss relating to Hedging Obligations associated with transactions realized in the current period that has been reflected in Net
Income in prior periods and excluded from, or included in, as applicable, Consolidated Net Income pursuant to the preceding clause (u) shall
be included, and
(w) any
expense to the extent a corresponding amount is received in cash by the Borrower or any Restricted Subsidiaries from a Person other than
the Borrower or any Restricted Subsidiaries, provided such payment has not been included in determining Consolidated Net Income
(it being understood that if the amounts received in cash under any
such agreement in any period exceed the amount of expense in respect of such period, such excess amounts received may be carried forward
and applied against expense in future periods).
“Consolidated Secured
Debt” shall mean, without duplication, as of any date of determination, (a) the aggregate principal amount of all Consolidated
Total Debt (determined without regard to clause (b) of the definition thereof) outstanding under this Agreement as of such date (but
excluding the effects of any discounting of Indebtedness resulting from the application of recapitalization or purchase accounting in
connection with any Acquisition or other similar Investment) and all other Consolidated Total Debt (determined without regard to clause
(b) of the definition thereof) secured by Liens on any assets or property of the Borrower or any Restricted Subsidiary minus
(b) the aggregate amount of cash and Cash Equivalents on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries
on such date, excluding cash and Cash Equivalents which are or should be listed as “restricted” on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries as of such date. It is understood that to the extent the Borrower or any Restricted
Subsidiary Incurs any Indebtedness and receives the proceeds of such Indebtedness, for purposes of determining any Incurrence test under
this Agreement and whether the Borrower is in pro forma compliance with any such test, the proceeds of such Incurrence shall not be considered
cash or Cash Equivalents for purposes of any “netting” pursuant to clause (b) of this definition.
“Consolidated Secured
Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Secured Debt
as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA for
such Test Period.
“Consolidated Total
Assets” shall mean, as of any date of determination, the total amount of all assets of the Borrower and the Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP as of such date.
“Consolidated Total
Debt” shall mean, as of any date of determination, (a) the aggregate principal amount of indebtedness of the Borrower and
the Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects
of any discounting of indebtedness resulting from the application of purchase accounting in connection with any Acquisition or other similar
Investment similar to those made for Acquisition), consisting of third-party indebtedness for borrowed money, Unpaid Drawings, Financing
Lease Obligations and third-party debt obligations evidenced by promissory notes or similar instruments, minus (b) the aggregate
amount of cash and Cash Equivalents on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, excluding
cash and Cash Equivalents which are listed as “restricted” on the consolidated balance sheet of the Borrower and the Restricted
Subsidiaries as of such date. It is understood that to the extent the Borrower or any Restricted Subsidiary Incurs any Indebtedness and
receives the proceeds of such Indebtedness, for purposes of determining any Incurrence test under this Agreement and whether the Borrower
is in pro forma compliance with any such test, the proceeds of such Incurrence shall not be considered cash or Cash Equivalents for purposes
of any “netting” pursuant to clause (b) of this definition.
“Consolidated Total
Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt
as of the last day of the Test Period most recently ended on or prior to such date of determination to (b) Consolidated EBITDA for
such Test Period.
“Consolidated
Working Capital” shall mean, at any date, the excess of (a) the sum of all amounts (excluding all cash and Cash
Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like
caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date less (b) the sum
of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or
any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, including (for
purposes of both clauses (a) and (b)) current and long-term Deferred Revenue but excluding (for purposes of both clauses
(a) and (b) above, as applicable), without duplication, (i) the current portion of any Funded Debt, (ii) all
Indebtedness (including Letter of Credit Obligations) under the Revolving Credit Facility, any Additional/Replacement Revolving
Credit Facility, any Extended Revolving Credit Facility or any other revolving credit facility that is effective in reliance on
Section 10.1(u), to the extent otherwise included therein, (iii) the current portion of interest, (iv) the current
portion of current and deferred income taxes, (v) non-cash compensation costs and expenses,
(vi) any other liabilities that are not Indebtedness and will not be settled in cash or Cash Equivalents during the next succeeding
twelve month period after such date, (vii) the effects from applying recapitalization or purchase accounting, (viii) any earn
out obligations until 30 days after such obligation becomes contractually due and payable and any earn-out obligation that becomes contractually
due and payable to the extent (A) such Person is indemnified for the payment thereof by a solvent Person reasonably acceptable to
the Administrative Agent or (B) amounts to be applied to the payment thereof are in escrow through customary arrangements and (ix) any
asset or liability in respect of net obligations of such Person in respect of Swap ContractsHedging
Agreements entered into in the ordinary course of business; provided that Consolidated Working Capital shall be calculated
without giving effect to (x) the depreciation of the Dollar relative to other foreign currencies or (y) changes to Consolidated
Working Capital resulting from non-cash charges and credits to consolidated current assets and consolidated current liabilities (including,
without limitation, derivatives and deferred income tax); provided, further, that for purposes of calculating Excess Cash
Flow, increases or decreases in working capital shall exclude the impact of adjusting items in the definition of “Consolidated Net
Income”.
“Contract Consideration” shall have
the meaning provided in the definition of the term “Excess Cash Flow.”
“Contractual Obligation”
shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking
to which such Person is a party or by which it or any of its property is bound other than the Obligations.
“Controlled Investment
Affiliate” shall mean, as to any Person, any other Person, other than any Investor, which directly or indirectly controls, is
controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily
for making direct or indirect equity or debt investments in the Borrower and/or other Person.
“Converted Restricted
Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Converted Unrestricted
Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Corrective Extension Agreement” shall
have the meaning provided in Section 2.15(f).
“Covered
Entity” shall mean (a) a “covered entity” as that term is defined in,and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in,and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” shall have the meaning provided in Section 13.23.
“Credit Agreement Refinancing Indebtedness”
shall mean (a) Permitted Equal Priority Refinancing Debt, (b) Permitted Junior Priority Refinancing Debt or
(c) Permitted Unsecured Refinancing Debt; provided that, in each case, such Indebtedness is Incurred to Refinance, in
whole or in part, existing Term Loans or existing Revolving Credit Loans (or unused Revolving Credit Commitments), any then-existing
Additional/Replacement Revolving Credit Loans (or unused Additional/Replacement Revolving Credit Commitments), any then-existing
Extended Revolving Credit Loans (or unused Extended Revolving Credit Commitments), or any Loans under any then- existing Incremental
Facility (or, if applicable, unused Commitments thereunder), or any then-existing Credit Agreement Refinancing Indebtedness
(“Refinanced Debt”); provided, further, that (i) except for any of the following that are only
applicable to periods after the Latest Maturity Date, the covenants, events of default and guarantees of such Indebtedness
(excluding, for the avoidance of doubt, interest rates (including through fixed interest rates), interest margins, rate floors,
fees, funding discounts, original issue discounts, maturity, currency denomination and prepayment or redemption premiums and terms)
(when taken as a whole) are determined by the Borrower to be either (A) consistent with market terms and conditions and
conditions at the time of Incurrence or effectiveness (as determined by the Borrower in good faith) or (B) not materially more
restrictive on the Borrower and the Restricted Subsidiaries than those applicable to the Refinanced Debt, when taken as a whole
(provided that if the documentation governing such Credit Agreement Refinancing Indebtedness contains a Previously Absent
Financial Maintenance Covenant, the Administrative Agent shall be given prompt written notice thereof and this Agreement shall be
amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility (provided, however,
that if (x) both the Refinanced Debt and the related Credit Agreement Refinancing Indebtedness that includes a Previously
Absent Financial Maintenance Covenant consists of a revolving credit facility (whether or not the documentation therefor includes
any other facilities) and (y) the applicable Previously Absent Financial Maintenance Covenant is a “springing”
financial maintenance covenant for the benefit of such revolving credit facility or a covenant only applicable to, or for the
benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall only be required to be included
in this Agreement for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility
hereunder) and such Credit Agreement Refinancing Indebtedness shall not be deemed “more restrictive” solely as a result
of such Previously Absent Financial Maintenance Covenant benefiting only such revolving credit facilities; provided that a
certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the
Incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such
Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms
and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing
requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such
determination (including a reasonable description of the basis upon which it disagrees), (ii) any such Indebtedness in the form
of bonds, notes, loans or debentures or which Refinances, in whole or in part, existing Term Loans, shall have a maturity that is no
earlier than the earlier of the maturity of the Refinanced Debt and the Latest Maturity Date and a Weighted Average Life to Maturity
equal to or greater than the Refinanced Debt; provided that the foregoing requirements of this clause (ii) shall not
apply to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which any
such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (ii) and such
conversion or exchange is subject only to conditions customary for similar conversions or exchanges, (iii) any such
Indebtedness which Refinances any existing Revolving Credit Loans (or unused Revolving Credit Commitments), any then-existing
Additional/Replacement Revolving Credit Loans (or unused Additional/Replacement Revolving Credit Commitments) or any then-existing
Extended Revolving Credit Loans (or unused Extended Revolving Credit Commitments) shall have a maturity that is no earlier than the
maturity of such Refinanced Debt and shall not require any mandatory commitment reductions prior to the maturity of such Refinanced
Debt; provided that the foregoing requirements of this clause (iii) shall not apply to the extent such Indebtedness
constitutes a customary bridge facility, so long as the long-term Indebtedness into which any such customary bridge facility is to
be converted or exchanged satisfies the requirements of this clause (iii) and such conversion or exchange is subject only to
conditions customary for similar conversions or exchanges, (iv) except to the extent otherwise permitted under this Agreement
(subject to a dollar for dollar usage of any other basket set forth in Section 10.1, if applicable), such Indebtedness shall
not have a greater principal amount (or shall not have a greater accreted value, if applicable) than the principal amount (or
accreted value, if applicable) of the Refinanced Debt plus unpaid accrued interest, fees and premiums (including tender
premiums) (if any) thereon, defeasance costs, underwriting discounts and fees and expenses (including OID, closing payments, upfront
fees or similar fees) associated with the Refinancing plus an amount equal to any existing commitments unutilized and letters
of credit undrawn, (v) such Refinanced Debt shall be repaid, repurchased, redeemed, defeased, acquired or satisfied and
discharged on a dollar- for-dollar basis, and all accrued interest, fees and premiums (including tender premiums) (if any) in
connection therewith shall be paid substantially concurrently with the date such Credit Agreement Refinancing Indebtedness is
Incurred or made effective, (vi) except to the extent otherwise permitted hereunder, the aggregate unused revolving commitments
under such Credit Agreement Refinancing Indebtedness shall not exceed the unused Revolving Credit Commitments,
Additional/Replacement Revolving Credit Commitments or Extended Revolving Credit Commitments, as applicable, being replaced plus
undrawn letters of credit, (vii) in the case of any such Indebtedness in the form of bonds, notes, loans or debentures or which
Refinances, in whole or in part, existing Term Loans, the terms thereof shall not require any mandatory repayment, redemption,
repurchase, acquisition or defeasance (other than (x) in the case of bonds, notes or debentures, customary change of control,
asset sale event or casualty, eminent domain or condemnation event offers, AHYDO Catch-Up Payments and customary acceleration any
time after an event of default and (y) in the case of any term loans, mandatory prepayments that are on terms (when taken as a
whole) not materially more favorable to the lenders or holders providing such Indebtedness than those applicable to the Refinanced
Debt (when taken as a whole) prior to the maturity date of the Refinanced Debt, (viii) any Credit Agreement
Refinancing Indebtedness may not be guaranteed by any Persons that do not guarantee the Obligations and (ix) any Credit Agreement
Refinancing Indebtedness may not be secured by any assets that do not secure the Obligations.
“Credit Documents”
shall mean this Agreement, the Security Documents, the Guarantee, the Fee Letter, each Letter of Credit, any promissory notes issued by
the Borrower hereunder, any Incremental Agreement (including the Third Incremental Agreement),
any Extension Agreement and any Customary Intercreditor Agreement entered into after the Closing Date to which the Collateral Agent and/or
the Administrative Agent is a party.
“Credit Event”
shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension
of a Letter of Credit.
“Credit Facility”
shall mean any of the Initial Term Loan Facility, anythe
2019 Incremental Term Loan Facility, any other Incremental Term Loan Facility,
the Revolving Credit Facility, any Additional/Replacement Revolving Credit Facility, any Extended Term Loan Facility or any Extended Revolving
Credit Facility, as applicable.
“Credit Party”
shall mean, collectively and/or, as applicable, individually, Holdings, the Borrower and each Subsidiary Guarantor.
“Cumulative Consolidated
Net Income” shall mean, as at any date of determination, Consolidated Net Income for the period (taken as one accounting period)
commencing on July 1, 2017 and ending on the last day of the most recent fiscal quarter for which Section 9.1 Financials have
been delivered.
“Cure Amount” shall have the meaning provided
in Section 11.11(a).
“Cure Deadline” shall have the meaning
provided in Section 11.11(a).
“Cure Right” shall have the meaning provided
in Section 11.11(a).
“Customary
Intercreditor Agreement” shall mean (a) to the extent executed in connection with the Incurrence of secured
Indebtedness Incurred by a Credit Party, the Liens on the Collateral securing which are intended to rank equal in priority to the
Liens on the Collateral securing the Obligations (but without regard to the control of remedies), at the option of the Borrower and
the Collateral Agent acting together in good faith, either (i) any intercreditor agreement substantially in the form of the
Equal Priority Intercreditor Agreement or (ii) a customary intercreditor agreement in form and substance reasonably acceptable
to the Collateral Agent and the Borrower, which agreement shall provide that the Liens on the Collateral securing such Indebtedness
shall rank equal in priority to the Liens on the Collateral securing the Obligations (but without regard to the control of remedies)
and (b) to the extent executed in connection with the Incurrence of secured Indebtedness Incurred by a Credit Party, the Liens
on the Collateral securing which are intended to rank junior in priority to the Liens on the Collateral securing the Obligations, at
the option of the Borrower and the Collateral Agent acting together in good faith, either (i) an intercreditor agreement
substantially in the form of the Junior Priority Intercreditor Agreement or (ii) a customary intercreditor agreement in form
and substance reasonably acceptable to the Collateral Agent and the Borrower, which agreement shall provide that the Liens on the
Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral securing the Obligations.
“Debt Fund Affiliate”
shall mean any Affiliate of the Borrower (other than Holdings, the Borrower or any Restricted Subsidiary of the Borrower) 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 or securities and that exercises investment discretion independent from the private equity
business of the Sponsor.
“Debt Incurrence
Prepayment Event” shall mean any Incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness, but excluding
any Indebtedness permitted to be Incurred under Section 10.1 (other than Incremental Term Loans Incurred in
reliance on clause (i)(x) of the proviso to Section 2.14(b), Permitted Additional Debt Incurred in reliance on Section 10.1(u)(i)(x) and,
to the extent relating to Term Loans, Credit Agreement Refinancing Indebtedness).
“Debt Surviving Company” shall have the
meaning provided in the recitals to this Agreement.
“Debtor Relief Laws”
shall mean the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions
from time to time in effect.
“Default”
shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulting Lender”
shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender
Default.”
“Default
Right” shall have 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.
“Deferred Blocker
Consideration” shall have the meaning assigned to such term in the Acquisition Agreement.
“Deferred Company
Consideration” shall have the meaning assigned to such term in the Acquisition Agreement.
“Deferred Revenue”
shall mean, at any date, the amount set forth opposite the caption “deferred revenue” (or any like caption or included in
any other caption, including current and non-current designations) on a consolidated balance sheet at such date; provided that
such balance should be determined excluding the effects of acquisition method accounting.
“Designated Non-Cash
Consideration” shall mean the Fair Market Value of consideration that is not deemed to be cash or Cash Equivalents and that
is received by the Borrower or its Restricted Subsidiaries in connection with a Disposition pursuant to Section 10.4(c) that
is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower delivered to the
Administrative Agent, setting forth the basis of such valuation (less the amount of the amount of cash or Cash Equivalents received in
connection with a subsequent Disposition, redemption or repurchase of, or collection or payment on, such Designated Non- Cash Consideration).
“Disposed EBITDA”
shall mean, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount for such period
of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower
and the Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” (and in the component financial definitions
used therein) were references to such Sold Entity or Business and its Subsidiaries or to such Converted Unrestricted Subsidiary and its
Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business.
“Disposition”
shall have the meaning provided in Section 10.4. The terms “Disposal”, “Dispose” and “Disposed
of” shall have correlative meanings.
“Disposition Percentage”
shall mean, with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event required to be applied pursuant to Section 5.2(a)(i),
the applicable percentage of Net Cash Proceeds required to be offered on any date of determination to prepay Term Loans.
“Disqualified Capital Stock” shall mean, with
respect to any Person, any Capital Stock of such Person that, by its terms (or by the terms of any security or other Capital Stock
into which it is convertible or for which it is putable or exchangeable) or upon the happening of any event or condition,
(a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation
or otherwise, other than solely as a result of a change of control, asset sale event or casualty, eminent domain or condemnation
event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale event or casualty, eminent
domain or condemnation event shall be subject to the prior repayment in full of the Loans and all other Obligations (other than
Hedging Obligations under any Secured Hedging Agreement, Cash Management Obligations under Secured Cash Management Agreements or
contingent indemnification obligations and other contingent obligations not then due and payable), (b) is redeemable or
exchangeable at the option of the holder thereof (other than solely for Qualified Capital Stock), other than as a result of a change
of control, asset sale event or casualty, eminent domain or condemnation event so long as any rights of the holders thereof upon the
occurrence of a change of control, asset sale event or casualty, eminent domain or condemnation event shall be subject to the prior
repayment in full of the Loans and all other Obligations (other than Hedging Obligations under any Secured Hedging Agreement, Cash
Management Obligations under Secured Cash Management Agreements or contingent indemnification obligations and other contingent
obligations not then due and payable), in whole or in part, or (c) provides for the scheduled payment of dividends in cash, in
each case prior to the date that is ninety-one (91) days after the Latest Maturity Date; provided that, if such Capital Stock
is issued pursuant to any plan for the benefit of officers, directors, employees or consultants of Holdings (or any Parent Entity
thereof), the Borrower or any of its Subsidiaries or by any such plan to such officers, directors, employees or consultants, such
Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by Holdings (or
any Parent Entity thereof), the Borrower or any of its Subsidiaries in order to satisfy applicable statutory or regulatory
obligations or as a result of such officer’s, director’s, employee’s or consultant’s termination, death or
disability.
“Disqualified Lenders”
shall mean (a) such Persons that have been specified in writing to the Administrative Agent and the Lead Arrangers on or prior to
June 19, 2017 as being “Disqualified Lenders,” (b) those Persons who are competitors of the Borrower and its Subsidiaries
(including the Target, Amplify and their respective Subsidiaries) that are separately identified in writing by the Borrower from time
to time to the Administrative Agent and (c) in the case of each of clauses (a) and (b), any of their Affiliates (which, for
the avoidance of doubt, shall not include any bona fide debt investment funds that are Affiliates of the Persons referenced in clause
(b) above) that are either (i) identified in writing to the Administrative Agent by the Borrower from time to time or (ii) readily
identifiable on the basis of such Affiliate’s name as an Affiliate of such entity; provided that any Person that is a Lender
and subsequently becomes a Disqualified Lender (but was not a Disqualified Lender on the Closing Date or at the time it became a Lender)
shall not retroactively be deemed to be a Disqualified Lender hereunder. The identity of Disqualified Lenders may be communicated by the
Administrative Agent to a Lender upon request, but will not be otherwise posted or distributed to any Person by the Administrative Agent.
“Distressed Person” shall have the meaning
provided in the definition of “Lender-Related Distress Event.”
“Dollars,” “U.S. Dollars”
and “$” shall mean dollars in lawful currency of the United States of America.
“Domestic Restricted Subsidiary”
shall mean each Restricted Subsidiary of the Borrower that is a Domestic Subsidiary.
“Domestic Subsidiary”
shall mean each Subsidiary of the Borrower that is organized under the Applicable Laws of the United States, any state thereof, or the
District of Columbia.
“Drawing” shall have the meaning provided
in Section 3.4(b).
“EEA
Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country
that is subject to the supervision of an EEA Resolution Authority, (b) any Person established in an EEA Member Country that is
a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an
EEA Member Country that 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” shall
mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA
Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Yield”
shall mean, as to any Indebtedness, the effective yield paid by the Borrower on such Indebtedness as determined by the Borrower and the
Administrative Agent in a manner consistent with generally accepted financial practices, taking into account the applicable interest rate
margins, any interest rate “floors” (the effect of which floors shall be determined in a manner set forth in the proviso below
and assuming that, if interest on such Indebtedness is calculated on the basis of a floating rate, that the “Eurodollar Rate”
or similar component of such formula is included in the calculation of Effective Yield) or similar devices and all fees, including upfront
or similar fees or OID (amortized over the shorter of (x) the remaining Weighted Average Life to Maturity of such Indebtedness and
(y) the four years following the date of Incurrence thereof, and, if applicable, assuming any Additional/Replacement Revolving Credit
Commitments were fully drawn) payable generally by the Borrower to Lenders or other institutions providing such Indebtedness, but excluding
any commitment fees, arrangement fees, structuring fees, closing payments or other similar fees payable in connection therewith that are
not generally shared with all relevant Lenders (in their capacities as lenders) and, if applicable, ticking fees accruing prior to the
funding of such Indebtedness and customary consent or amendment fees for an amendment paid generally to consenting Lenders (and regardless
of whether any such fees are paid to, or shared in whole or in part with, any Lender); provided that, with respect to any Indebtedness
that includes a “floor”, (a) to the extent that the Reference Rate on the date that the Effective Yield is being calculated
is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the
purpose of calculating the Effective Yield and (b) to the extent that the Reference Rate on the date that the Effective Yield is
being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.
“Eligible Assignee”
shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (subject, in
each case, to such consents, if any, as may be required under Section 13.6(b)), other than, in each case, (i) a natural person,
(ii) a Defaulting Lender or (iii) a Disqualified Lender.
“Employee Investors”
shall mean the current, former or future officers, directors, managers and employees (and Controlled Investment Affiliates and Immediate
Family Members of the foregoing) of Holdings, the Borrower, the Restricted Subsidiaries or any Parent Entity who are or who become direct
or indirect investors in Holdings, any Parent Entity, any Equityholding Vehicle, or in the Borrower, including any such officers, directors,
managers or employees owning through an Equityholding Vehicle. For the avoidance of doubt, the Rollover Investors constitute Employee
Investors.
“EMU” shall mean the economic and
monetary union as contemplated in the Treaty on European Union.
“Environment” shall mean ambient air, indoor air,
surface water, groundwater, drinking water, land surface, sediments, and subsurface strata and natural resources such as wetlands,
flora and fauna.
“Environmental
Claims” shall mean any and all administrative, regulatory or judicial actions, suits, orders, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by the Borrower or any of
its Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a
financing transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law
or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including
(i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief resulting from the Release or threatened Release of
Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the Environment.
“Environmental
Law” shall mean any applicable federal, state, provincial, territorial, foreign, municipal or local statute, law, rule,
regulation, ordinance, code, permit, binding agreement issued, promulgated or entered into by or with any Governmental Authority or
rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative
interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, in each case relating to
pollution or the protection of the Environment including, those relating to generation, use, handling, storage, treatment, Release
or threat of Release of Hazardous Materials or, to the extent relating to exposure to Hazardous Materials, human health or
safety.
“Equal Priority Intercreditor
Agreement” shall mean the Equal Priority Intercreditor Agreement substantially in the form of Exhibit G-1 among (x) the
Collateral Agent and (y) one or more representatives of the holders of one or more classes of Permitted Additional Debt and/or Permitted
Equal Priority Refinancing Debt, with any immaterial changes and material changes thereto in light of the prevailing market conditions,
which material changes shall be posted to the Lenders not less than five Business Days before execution thereof and, if the Required Lenders
shall not have objected to such changes within five Business Days after posting, then the Required Lenders shall be deemed to have agreed
that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement (with such changes) is reasonable
and to have consented to such intercreditor agreement (with such changes) and to the Administrative Agent’s and/or Collateral Agent’s
execution thereof.
“Equity Contribution” shall have the meaning
provided in the recitals to this Agreement.
“Equityholding Vehicle”
shall mean any Parent Entity and any equityholder thereof through which current, former or future officers, directors, employees, managers
or consultants of Holdings or the Borrower or any of their Subsidiaries or Parent Entity hold Capital Stock of such Parent Entity.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Section references to ERISA are to
ERISA as in effect on the Closing Date and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted
therefor.
“ERISA Affiliate”
shall mean each person (as defined in Section 3(9) of ERISA) that together with Holdings, the Borrower or a Restricted Subsidiary
thereof is treated as a “single employer” within the meaning of Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(b),
(c), (m) and (o) of the Code.
“Escrowed Proceeds”
shall mean the proceeds from the offering of any debt securities or other Indebtedness paid into an escrow account with an independent
escrow agent on the date of the applicable offering or incurrence pursuant to escrow arrangements that permit the release of amounts on
deposit in such escrow account upon satisfaction of certain conditions or the occurrence of certain events. The term “Escrowed Proceeds”
shall include any interest earned on the amounts held in escrow.
“EU
Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any
successor person), as in effect from time to time.
“Eurodollar Borrowing” shall mean each
Borrowing of a Eurodollar Loan.
“Eurodollar Loan” shall mean any Loan
bearing interest at a rate determined by reference to the Eurodollar Rate.
“Eurodollar
Rate” shall mean, (a) with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum equal
to greater of (i) (A) with regard to Initial Term Loans only, 0.00% and, (B) with regard to 2019 Incremental Term Loans only,0.00% and (C) with regard to Revolving Credit Loans, 0.00% and (ii) the product of (A) the LIBOR in effect for such Interest Period and (B) Statutory Reserves
Where,
“LIBOR”
shall mean, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the
page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration
Limited (such page currently being the LIBOR01 page) for deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time), two
Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding
clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate
determined by the Administrative Agent to be the offered rate on such other page or other service which displays LIBOR for
deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars,
determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest
Period; provided that if LIBOR is quoted under either of the preceding clauses (i) or (ii), but there is no such
quotation for the Interest Period elected, LIBOR shall be equal to the Interpolated Rate; and
“Statutory
Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to
which the Administrative Agent or any Lender (including any branch, Affiliate, or other fronting office making or holding a Loan) is
subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
and
(b) with respect to any ABR Loan, an interest rate per annum equal to the LIBOR in effect for an Interest Period of one
month
Where,
“LIBOR”
shall mean (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the
page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration
Limited (such page currently being the LIBOR01 page) for deposits in Dollars with a one-month term, determined as of
approximately 11:00 a.m. (London, England time), on the day of determination of such rate, or
(ii) in the event the rate referenced in the preceding clause
(i) does not appear on such page or service or if such page or service shall cease to be available, the rate
determined by the Administrative Agent to be the offered rate on such other page or other service which displays LIBOR for
deposits in Dollars with a one-month term, determined as of approximately 11:00 a.m. (London, England time) on the date of
determination of such rate; provided that if LIBOR is quoted under either of the preceding clauses (i) or (ii), but
there is no such quotation for a one- month Interest Period, LIBOR shall be equal to the Interpolated Rate.
“Event of Default” shall have the meaning
provided in Section 11.
“Excess Cash Flow” shall mean, for any
period, an amount equal to the excess of
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(a)
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the sum, without duplication, of:
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(i)
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Consolidated Net Income for such period;
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(ii) an
amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income
(provided that, in each case, if any non-cash charge represents an accrual or reserve for cash items in any future period,
the cash payment in respect thereof in such future period shall be subtracted from Excess Cash Flow in such future period);
(iii) decreases
in Consolidated Working Capital and decreases in long-term accounts receivable, in each case as of the end of such period from the Consolidated
Working Capital and long-term accounts receivable as of the beginning of such period (except, in the case of each of the foregoing, any
such increases or decreases that are as a result of the reclassification of items from short-term to long-term or vice versa) (other than
any such decreases or increases, as applicable, arising from Acquisitions or Dispositions outside the ordinary course of assets, business
units or property by the Borrower or any of the Restricted Subsidiaries completed during such period or the application of recapitalization
or purchase accounting);
(iv) an
amount equal to the aggregate net non-cash loss on the Disposition of assets, business units or property by the Borrower and the Restricted
Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such
Consolidated Net Income;
(v) cash
payments received in respect of Hedging Agreements during such period to the extent not included in arriving at such Consolidated Net
Income; and
(vi) income
tax expense to the extent deducted in arriving at such Consolidated Net Income (net of any adjustments pursuant to clause (o) of
Consolidated Net Income for cash tax benefits related to the tax amortization of intangible assets in such period);
minus
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(b)
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the sum, without duplication, of:
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(i) an
amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (but excluding any non-cash credit
to the extent representing the reversal of an accrual or reserve described in clause (a)(ii) above) and cash charges included in
clauses (a) through (w) of the definition of the term “Consolidated Net Income”;
(ii) without
duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Capital Expenditures or acquisitions
of Intellectual Property made in cash or accrued during such period, except to the extent that such Capital Expenditures or acquisitions
of Intellectual Property were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making
of capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary
course of business;
(iii) the
aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (A) the
principal component of payments in respect of Financing Lease Obligations, (B) all scheduled principal repayments of the Term
Loans, Permitted Additional Debt and Credit Agreement Refinancing Indebtedness, in each case to the extent such payments are
permitted hereunder and actually made and (C) the amount of any mandatory prepayment of Term Loans actually made pursuant to
Section 5.2(a)(i) and any mandatory redemption, repurchase, prepayment, defeasance, acquisition or similar payment of
Permitted Additional Debt or Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions of the governing
documentation thereof, in each such case from the proceeds of any Disposition and that resulted in an increase to Consolidated Net
Income (and have not otherwise been excluded under clause (c) of the definition thereof) and not in excess of the amount of
such increase but excluding (1) all other prepayments, repurchases, defeasances, acquisitions, redemptions and/or similar
payments of Term Loans and (2) all prepayments of revolving credit loans and swingline loans permitted hereunder made during
such period (other than in respect of any revolving credit facility (other than in respect of (x) the Revolving Credit
Facility, any Extended Revolving Credit Facility or Additional/Replacement Revolving Credit Facility and (y) other revolving
loans that are effective in reliance on Section 10.1(a) or Section 10.1(u)) to the extent there is an equivalent
permanent reduction in commitments thereunder)), except to the extent financed by the Incurrence of long-term Indebtedness by, or
the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries or
using the proceeds of any Disposition outside the ordinary course of business;
(iv) an
amount equal to the aggregate net non-cash gain on the Disposition of property by the Borrower and the Restricted Subsidiaries during
such period (other than the Disposition of property in the ordinary course of business) to the extent included in arriving at such Consolidated
Net Income;
(v) increases
in Consolidated Working Capital and increases in long-term accounts receivable in each case as of the end of such period from the Consolidated
Working Capital and long-term accounts receivable as of the beginning of such period (except, in the case of each of the foregoing, any
such increases or decreases that are as a result of the reclassification of items from short-term to long-term or vice versa) (other than
any such increases or decreases, as applicable, arising from Acquisitions or Dispositions outside the ordinary course by the Borrower
and the Restricted Subsidiaries during such period or the application of recapitalization or purchase accounting);
(vi) cash
payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the
Restricted Subsidiaries other than Indebtedness, except to the extent that such payments were financed by the Incurrence of long-term
Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted
Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(vii) without
duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Investments made in cash (other
than Investments made pursuant to Sections 10.5(b), (f), (g), (h), (i), (n) and (s)) during such period, except to the extent that
such Investments were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital
contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course
of business;
(viii) without
duplication of amounts deducted pursuant to clause (xii) below, the amount of Restricted Payments (other than Restricted Investments)
paid in cash during such period, except to the extent that such Restricted Payments were financed by the Incurrence of long-term Indebtedness
by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the Restricted Subsidiaries
or using the proceeds of any Disposition outside the ordinary course of business;
(ix) the
aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries in cash during such period (including expenditures
for the payment of financing fees) to the extent that such expenditures are not expensed during such period, except to the extent that
such expenditures were financed by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of
capital contributions to, the Borrower or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary
course of business;
(x) the
aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted
Subsidiaries during such period that are required to be made in connection with any prepayment, redemption, defeasance, acquisition,
repurchase and/or similar payment of Indebtedness, except to the extent that such payments were financed by the Incurrence of
long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of
the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;
(xi) without
duplication of amounts deducted from Excess Cash Flow in other periods, (A) the aggregate consideration required to be paid in cash
by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”)
entered into prior to or during such period and (B) any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries
(the “Planned Expenditures”) in the case of each of clauses (A) and (B), relating to Acquisitions (or other similar
Investments), Capital Expenditures (including Capitalized Software Expenditures) or acquisitions of Intellectual Property to be consummated
or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except to the extent financed
by the Incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower
or any of the Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business); provided
that, to the extent that the aggregate amount of cash actually utilized to finance such Acquisitions (or other similar Investments), Capital
Expenditures (including Capitalized Software Expenditures) or acquisitions of Intellectual Property during such following period of four
consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added
to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters;
(xii) without
duplication of any amounts deducted pursuant to clause (viii) above, the aggregate amount of all payments paid in cash by the Borrower
and the Restricted Subsidiaries during such period in connection with, or necessary to consummate, the Transactions;
(xiii) income taxes, including penalties and interest, paid in cash in such period; and
(xiv) cash
expenditures made in respect of Hedging Agreements during such period to the extent not deducted in arriving at such Consolidated Net
Income.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Rate” shall mean on any day with respect to any currency (other than Dollars), the rate at which such currency may be
exchanged into any other currency (including Dollars), as set forth at approximately 11:00 a.m. (London time) on such day on
the Bloomberg page or screen for such currency. In the event that such rate does not appear on any Bloomberg page or
screen, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as
may be agreed by the Administrative Agent and the Borrower, or, in the absence of such agreement, such Exchange Rate shall instead
be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency
exchange operations in respect of such currency are then being conducted, at or about 11:00 a.m., local time, on such date for the
purchase of the relevant currency for delivery two Business Days later.
“Excluded Capital Stock” shall mean:
(a) any
Capital Stock with respect to which, in the reasonable judgment of the Borrower and the Collateral Agent as agreed in writing, the cost
or other consequences (including any material adverse tax consequences) of pledging such Capital Stock shall be excessive in view of the
benefits to be obtained by the Secured Parties therefrom,
(b) solely
in the case of any pledge of Capital Stock of any Foreign Subsidiary or FSHCO to secure the Obligations, any Capital Stock that is
Voting Stock of such Foreign Subsidiary or FSHCO in excess of 65% of the outstanding Capital Stock that is Voting Stock of such
Foreign Subsidiary or FSHCO,
(c) any
Capital Stock to the extent, and for so long as, the pledge thereof would be prohibited by any Applicable Law (including financial assistance,
fraudulent conveyance, preference, thin capitalization, capital preservation or similar laws or regulations and any legally effective
requirement to obtain the consent of any Governmental Authority to such pledge unless such consent has been obtained),
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(d)
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any “margin stock” (as defined in Regulation U),
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(e) the
Capital Stock of any Person, other than any Wholly-Owned Restricted Subsidiary to the extent, and for so long as, the pledge of such Capital
Stock would be prohibited by the terms of any Contractual Obligation, Organizational Document, joint venture agreement or shareholders’
agreement applicable to such Person or legally effective Contractual Obligations or create an enforceable right of termination in favor
of any other party thereto (other than Holdings, the Borrower or any wholly owned Restricted Subsidiary of the Borrower),
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(f)
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the Capital Stock of any Subsidiary of a Foreign Subsidiary or any Subsidiary of a FSHCO,
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(g)
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the Capital Stock of any Unrestricted Subsidiary or of any Receivables Subsidiary, and
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(h) any
Capital Stock of any Subsidiary to the extent that the pledge of such Capital Stock would result in material adverse Tax consequences
to Holdings, the Borrower or any Subsidiary as reasonably determined by the Borrower in consultation with (but without the consent of)
the Collateral Agent.
“Excluded Contribution”
shall mean the Net Cash Proceeds, the Fair Market Value of marketable securities or the Qualified Proceeds, in each case received by
the Borrower from capital contributions to the common Capital Stock of the Borrower or sales or issuances of common Capital Stock of
the Borrower permitted hereunder, in each case, after the Closing Date (other than any amount to the extent used in the Cure Amount)
and designated by the Borrower to the Administrative Agent as an Excluded Contribution within 5 Business Days of the date such capital
contributions are made or the date the applicable Capital Stock is issued or sold; provided that, any proceeds
from the Equity Contribution (as defined in the 2019 Incremental Commitment Letter) on the Third Amendment Effective Date shall be excluded from the calculation of Excluded Contribution.
“Excluded Property” shall have the meaning
provided in the Security Agreement.
“Excluded Subsidiary” shall mean:
(a) any
Subsidiary that is not a wholly owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant
to the requirements of Section 9.10 (for so long as such Subsidiary remains a non-wholly owned Subsidiary),
(b) any
Subsidiary that is prohibited by (x) Applicable Law (including financial assistance, fraudulent conveyance, preference, thin capitalization,
capital preservation or similar laws or regulations) or (y) Contractual Obligation from guaranteeing the Obligations (and for so
long as such restrictions or any replacement or renewal thereof is in effect); provided that in the case of clause (y), such Contractual
Obligation existed on the Closing Date or, with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary after the
Closing Date (and so long as such Contractual Obligation was not incurred in contemplation of such acquisition), on the date such Subsidiary
is so acquired,
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(c)
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any Domestic Subsidiary that is (i) a FSHCO or (ii) a direct or indirect Subsidiary of a CFC,
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(d) any
Immaterial Subsidiary (provided that the Borrower shall not be permitted to exclude Immaterial Subsidiaries from guaranteeing the
Obligations to the extent that (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries (other than Unrestricted
Subsidiaries) excluded by this clause (d) exceeds 10% of the consolidated gross revenues of the Borrower and its Restricted Subsidiaries
that are not otherwise Excluded Subsidiaries by virtue of any of the other clauses of this definition, except for this clause (d), for
the Test Period most recently ended on or prior to the date of determination or (ii) the aggregate amount of total assets for all
Immaterial Subsidiaries (other than Unrestricted Subsidiaries) excluded by this clause (d) exceeds 10% of the aggregate amount of
Consolidated Total Assets of the Borrower and its Restricted Subsidiaries that are not otherwise Excluded Subsidiaries by virtue of any
other clauses of this definition, except for this clause (d), as at the end of the Test Period most recently ended on or prior to the
date of determination),
(e) any
other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower (confirmed in writing
by notice to the Borrower and the Collateral Agent), the cost or other consequences (including any material adverse Tax consequences)
of providing a guarantee shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom,
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(f)
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each Foreign Subsidiary and each Unrestricted Subsidiary,
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(g) each
other Restricted Subsidiary acquired pursuant to an Acquisition or other similar Investment and financed with secured Indebtedness Incurred
pursuant to Section 10.1(j) and the Liens securing which are permitted by Section 10.2(f) (and, for the avoidance
of doubt, not Incurred in contemplation of such Acquisition or other similar Investment), and each Restricted Subsidiary acquired in such
Acquisition or other similar Investment that guarantees such Indebtedness, in each case to the extent that, and for so long as, the documentation
relating to such Indebtedness to which such Restricted Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations,
(h) any
Subsidiary to the extent that the guarantee of the Obligations would result in material adverse tax consequences to the Borrower or any
Subsidiary as reasonably determined by the Borrower in consultation with (but without the consent of) the Administrative Agent, and confirmed
in writing by notice to the Borrower and the Collateral Agent,
(i) any
Subsidiary that would require any consent, approval, license or authorization from any Governmental Authority to provide a guarantee unless
such consent, approval, license or authorization has been received, or is received after commercially reasonable efforts by such Subsidiary
to obtain the same, which efforts may be requested by the Administrative Agent,
(j) any
not-for-profit Subsidiaries, Captive Insurance Companies, Receivables Subsidiary or other Special Purpose Subsidiaries designated in writing
by the Borrower from time to time to the Administrative Agent and the Collateral Agent, and
(k) any
Subsidiary that does not have the legal capacity to provide a guarantee of the Obligations (provided that the lack of such legal capacity
does not arise from any action or omission of Holdings or any other Credit Party).
“Excluded Swap
Obligation” shall mean, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a
portion of the guarantee of such Guarantor pursuant to the Guarantee of, or the grant by such Guarantor of a security interest to
secure, such Swap Obligation (or any guarantee pursuant to the Guarantee thereof) is or becomes illegal or unlawful 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) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract
participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving pro forma
effect to any applicable keep well, support, or other agreement for the benefit of such Guarantor and any and all applicable
guarantees of such Guarantor’s Swap Obligations by other Credit Parties), at the time the guarantee of (or grant of such
security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or
(ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity
Exchange Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity
Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would
become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap
Obligation” of such Guarantor as specified in any agreement between the relevant Credit Parties and Hedge Bank applicable to
such Swap Obligations. If a Swap Obligation arises under a Master Agreement governing more than one Swap, such exclusion shall apply
only to the portion of such Swap Obligation that is attributable to the Swap for which such guarantee or security interest is or
becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” shall have the meaning
provided in Section 5.4(a).
“Existing Class”
shall mean Existing Term Loan Classes and each Class of Existing Revolving Credit Commitments.
“Existing Credit
Agreement” shall mean that certain Credit Agreement, dated as of December 21, 2016 (as amended, supplemented or otherwise
modified from time to time prior to the Closing Date), by and among Wirepath Home Systems, LLC, Wirepath Home Systems Holdco LLC, the
lenders from time to time party thereto referred to therein, Antares Capital LP, as the administrative agent and collateral agent, and
the other parties thereto.
“Existing Debt Refinancing”
shall mean the repayment in full of all principal, accrued and unpaid interest, fees, premium, if any, and other amounts outstanding under
the Existing Credit Agreement, other than (i) contingent obligations not then due and payable and that by their terms survive the
termination of the Existing Credit Agreement and (ii) the Existing Letters of Credit, the termination of all commitments to extend
credit thereunder and the termination and/or release of any security interests and guarantees in connection therewith.
“Existing Letters of Credit” shall mean
all the letters of credit listed on Schedule 1.1(b).
“Existing Revolving Credit Class” shall have the meaning provided
in Section 2.15(b).
“Existing Revolving Credit Commitments” shall have the meaning provided in Section 2.15(b).
“Existing Revolving Credit Loans” shall have the meaning provided in Section 2.15(b).
“Existing Term
Loan Class” shall have the meaning provided in Section 2.15(a).
“Expected Cure Amount” shall have the
meaning provided in Section 11.11(b).
“Extended Loans/Commitments”
shall mean Extended Term Loans, Extended Revolving Credit Loans and/or Extended Revolving Credit Commitments.
“Extended Repayment Date” shall have the
meaning provided in Section 2.5(c).
“Extended Revolving Credit Commitments”
shall have the meaning provided in Section 2.15(b).
“Extended Revolving Credit Facility”
shall mean each Class of Extended Revolving Credit Commitments established pursuant to Section 2.15(b).
“Extended Revolving Credit Loans” shall
have the meaning provided in Section 2.15(b).
“Extended Term Loan Facility”
shall mean each Class of Extended Term Loans made pursuant to Section 2.15.
“Extended Term Loan Repayment Amount”
shall have the meaning provided in Section 2.5(c).
“Extended Term Loans” shall have the meaning
provided in Section 2.15(a).
“Extending Lender” shall have the meaning provided in Section 2.15(c).
“Extension Agreement” shall have the meaning
provided in Section 2.15(d).
“Extension Date” shall have the meaning
provided in Section 2.15(e).
“Extension Election” shall have the meaning
provided in Section 2.15(c).
“Extension Request” shall mean Term Loan
Extension Requests and Revolving Credit Extension Requests.
“Extension Series”
shall mean all Extended Term Loans or Extended Revolving Credit Commitments (as applicable) that are established pursuant to the same
Extension Agreement (or any subsequent Extension Agreement to the extent such Extension Agreement expressly provides that the Extended
Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any previously established
Extension Series) and that provide for the same interest margins, extension fees, if any, and amortization schedule.
“Fair Market Value”
shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale
of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and
arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as reasonably
determined by the Borrower.
“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (and any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices
pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (or any law
implementing such an intergovernmental agreement).
“FCPA” shall have the meaning provided
in Section 8.19.
“Federal Funds Effective
Rate” shall mean, 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.
“Fee Letter”
shall mean the Credit Facilities Fee Letter, dated as of June 19, 2017, among UBS AG, Stamford Branch, UBS Securities LLC, SunTrust
Bank, SunTrust Robinson Humphrey, Inc. and Holdings.
“Fees” shall mean all amounts payable
pursuant to or referred in Section 4.1.
“Financial Performance Covenant” shall
mean the covenant of the Borrower set forth in Section 10.10.
“Financial Performance Covenant Event of Default”
shall have the meaning provided in Section 11.3.
“Financing Lease
Obligation” shall mean, as applied to any Person, an obligation that is required to be accounted for as a financing or capital
lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial
reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect
of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes
thereto) in accordance with GAAP.
“First Incremental
Agreement” shall mean that certain Incremental Agreement No. 1, dated as of February 5, 2018 among the Borrower, Holdings,
the other Guarantors, the Tranche B Term Lenders party thereto and the Administrative Agent.
“First Incremental Agreement Effective
Date” shall have the meaning provided in the First Incremental Agreement.
“First Lien Obligations”
shall mean the Obligations, any Permitted Additional Debt Obligations (other than any Permitted Additional Debt Obligations that are unsecured
or are secured by a Lien ranking junior to the Liens securing the Obligations (but without regard to control of remedies)) and any Permitted
Equal Priority Refinancing Debt and Indebtedness in respect of Term Loan Exchange Notes, collectively.
“Flood Documents” shall have the meaning
provided in Section 9.14(c)(i).
“Flood Hazard Property” shall have the
meaning provided in Section 9.14(c)(i).
“Flood Insurance
Laws” shall mean, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National
Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto,
(b) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (c) the Biggert-Waters
Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Plan”
shall mean any pension plan maintained or contributed to by Holdings, the Borrower or any Restricted Subsidiary with respect to its respective
employees employed outside the United States.
“Foreign Restricted Subsidiary”
shall mean any Restricted Subsidiary that is not a Domestic Subsidiary.
“Foreign Subsidiary” shall mean each Subsidiary
of the Borrower that is not a Domestic Subsidiary.
“Fronting Fee” shall have the meaning provided in Section 4.1(b).
“FSHCO”
shall mean any direct or indirect Domestic Subsidiary that has no material assets other than Capital Stock (including any debt instrument
treated as equity for U.S. federal income tax purposes) or Indebtedness of one or more direct or indirect Foreign Subsidiaries that are
CFCs.
“Funded Debt”
shall mean all indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the
date of its creation or matures within one year from such date that is renewable or extendable, at the option of the Borrower or any such
Restricted Subsidiary, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the
Loans.
“GA Equityholders” shall mean General
Atlantic (Amplify) HoldCo LLC.
“GAAP”
shall mean generally accepted accounting principles in the United States of America, as in effect from time to time, subject to
Section 1.3(a). Notwithstanding the foregoing, at any time after adoption of IFRS by the Borrower for its financial statements
and reports for all financial reporting purposes, the Borrower may elect to apply IFRS for all purposes of this Agreement and the
other Credit Documents, in lieu of United States GAAP, and, upon any such election, references herein or in any other Credit
Document to GAAP shall be construed to mean IFRS as in effect from time to time; provided that (a) any such election
once made shall be irrevocable (and shall only be made once), (b) all financial statements and reports required to be provided
after such election pursuant to this Agreement shall be prepared on the basis of IFRS and (c) from and after such election, all
ratios, computations and other determinations (i) based on GAAP contained in this Agreement shall be computed in conformity
with IFRS and (ii) in this Agreement that require the application of GAAP for periods that include fiscal quarters ended prior
to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP; provided, further,
that in the event of any such election by the Borrower, any financial ratio calculations or thresholds (including the Financial
Maintenance Covenant) in this Agreement may be recalibrated to reflect the election to implement IFRS so long as (1) such
recalibration is limited to changes in the calculation of such thresholds or covenant levels due to the effect of differences
between GAAP and IFRS, (2) the recalibrated ratios and calculations shall be mutually agreed between the Administrative Agent
and the Borrower, unless the Required Lenders have given notice of their objection to such recalibration within five Business Days
of receiving notice thereof, and (3) any such recalibration shall be done in a manner such that after giving effect to such
recalibration, the recalibrated thresholds and covenant levels shall be consistent with the intention of the respective thresholds
and covenant levels calculated under GAAP prior to such election. The Borrower shall give notice of any election to the
Administrative Agent with 10 Business Days of such election. For the avoidance of doubt, solely making an election (without any
other action) referred to in this definition will not be treated as an incurrence of Indebtedness.
“Governmental Authority”
shall mean the government of the United States, any foreign country or any multinational authority, or any state, province, territory,
municipality or other political subdivision thereof, and any entity, body or authority exercising executive, legislative, judicial, taxing,
regulatory or administrative functions of or pertaining to government, including the PBGC and other quasi-governmental entities established
to perform such functions.
“Guarantee”
shall mean the Guarantee, dated as of the Closing Date, made by each Guarantor in favor of the Collateral Agent for the benefit of the
Secured Parties, substantially in the form of Exhibit A.
“Guarantee Obligations”
shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether
or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor
to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect
thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments
for deposit or collection 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 or disposition of assets permitted under this Agreement (other than with respect
to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of
the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Guarantors”
shall mean (a) Holdings, (b) each wholly owned Domestic Subsidiary of the Borrower that is Restricted Subsidiary (other than
an Excluded Subsidiary) on the Closing Date, (c) the Borrower (other than with respect to its own Obligations) and (d) each
Subsidiary of the Borrower that becomes a party to the Guarantee after the Closing Date pursuant to Section 9.10.
“Hazardous Materials”
shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers
or other equipment that contains dielectric fluid containing regulated levels of polychlorinated biphenyls, asbestos, asbestos-containing
materials, mold and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “waste,” “hazardous materials,” “extremely hazardous waste,”
“restricted hazardous waste,” “subject waste,” “toxic substances,” “toxic pollutants,”
“contaminants,” or “pollutants,” or words of similar import, under any Applicable Law pertaining to pollution
or the protection of the Environment; and (c) any other chemical, material or substance, which is prohibited, limited or regulated
by any Applicable Law pertaining to pollution or the protection of the Environment.
“Hedge
Bank” shall mean any Person that is a counterparty to a Hedging Agreement with a Credit Party or one of its Restricted
Subsidiaries, in its capacity as such, and that either (i) is a Lender, an Agent, a Lead Arranger, a Joint Bookrunner or an
Affiliate of a Lender, an Agent, a Lead Arranger or a Joint Bookrunner at the time it enters into such Hedging Agreement or
(ii) becomes a Lender, an Agent or an Affiliate of a Lender or an Agent after it has entered into such Hedging Agreement; provided
that no such Person (except an Agent) shall be considered a Hedge Bank until such time as it shall have delivered written notice to
the Collateral Agent that such a transaction has been entered into and that such Person constitutes a Hedge Bank entitled to the
benefits of the Security Documents. For purposes of the preceding sentence, a Person may deliver one notice confirming that it
constitutes a “Hedge Bank” with respect to all Hedging Agreements entered into pursuant to a specified Master Agreement.
For the avoidance of doubt, each Agent shall constitute a Hedge Bank to the extent it has entered into a Hedging Agreement.
“Hedging Agreement”
shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions,
cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter
into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form
of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Hedging Obligations”
shall mean, with respect to any Person, the obligations of such Person under Hedging Agreements.
“Historical Financial
Statements” shall mean (a) audited consolidated balance sheets of the Wirepath Home Systems Holdco LLC (or the predecessor
thereto) and its subsidiaries as at the end of, and related consolidated statements of operations, statement of members’ equity
and statement of cash flows of Wirepath Home Systems Holdco LLC (or the predecessor thereto) and its subsidiaries for, the fiscal years
ended December 31, 2015 and December 31, 2016 and (b) an unaudited consolidated balance sheet of Wirepath Home Systems
Holdco LLC (or the predecessor thereto) and its subsidiaries as of March 31, 2017, and the related consolidated statement of operations,
statement of members’ equity and statement of cash flows as of and for the three-month period ended March 31, 2017.
“Holdings”
shall mean (i) Holdings (as defined in the preamble to this Agreement) or (ii) at the election of the Borrower, any other Person
or Persons (the “New Holdings”) that is a Subsidiary of (or are Subsidiaries of) Holdings or of any Parent Entity of
Holdings (or the previous New Holdings, as the case may be) (the “Previous Holdings”) but not the Borrower; provided
that (a) such New Holdings directly or indirectly owns 100% of the Capital Stock of the Borrower, (b) the New Holdings shall
expressly assume all the obligations of the Previous Holdings under this Agreement and the other Credit Documents pursuant to a supplement
hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (c) the New Holdings shall have delivered
to the Administrative Agent a certificate of an Authorized Officer stating that such substitution and any supplements to the Credit Documents
preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (d) if reasonably
requested by the Administrative Agent, an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent
shall be delivered by the Borrower to the Administrative Agent to the effect that, without limitation, such substitution does not breach
or result in a default under this Agreement or any other Credit Document, (e) all Capital Stock of the Borrower and substantially
all of the other assets of the Previous Holdings are contributed or otherwise transferred to such New Holdings and pledged to secure the
Obligations and (f) no Event of Default has occurred and is continuing at the time of such substitution and such substitution does
not result in any Event of Default or material Tax liability; provided, further, that if each of the foregoing is satisfied,
the Previous Holdings shall be automatically released from all its obligations under the Credit Documents and any reference to “Holdings”
in the Credit Documents shall be meant to refer to the “New Holdings.”
“Immaterial
Subsidiary” shall mean, at any date of determination, any Restricted Subsidiary of the Borrower (a) whose total
assets (when combined with the assets of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany
obligations) at the last day of the Test Period most recently ended on or prior to such determination date were an amount equal to
or less than 5% of the Consolidated Total Assets of the Borrower and its Restricted Subsidiaries at such date and (b) whose
gross revenues (when combined with the revenues of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany
obligations) for such Test Period were an amount equal to or less than 5% of the consolidated gross revenues of the Borrower and its
Restricted Subsidiaries for such Test Period, in each case determined in accordance with GAAP.
“Immediate Family
Members” shall mean with respect to any individual, such individual’s estate, heirs, legatees, distributees, child, stepchild,
grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law (including adoptive relationships),
any person sharing an individual’s household (other than an unrelated tenant or employee) and any trust, partnership or other bona
fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals 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 Agreement” shall have the
meaning provided in Section 2.14(e).
“Incremental Base
Amount” shall mean, as of any date of determination, (a) (x) the greater of $50,000,000 and (y) 100.075.0%
of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date
of determination (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date
plus (b) the aggregate principal amount of (i) Term Loans voluntarily prepaid prior to such date pursuant to Section 5.1,
(ii) the aggregate amount of cash consideration paid by any Purchasing Borrower Party to effect any assignment to it of Term Loans
pursuant to Section 13.6(g), but only to the extent that such Term Loans have been cancelled and (iii) all permanent reductions
of Revolving Credit Commitments, Extended Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments pursuant
to Section 4.2 effected prior to such date (for the avoidance of doubt, excluding any such commitment reductions required by the
proviso to Section 2.14(b) or in connection with the Incurrence of any Credit Agreement Refinancing Indebtedness Incurred to
Refinance any Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments and/or Extended Revolving Credit Commitments),
in each case of this clause (b) except to the extent financed by the Incurrence of long-term Indebtedness (including, for the avoidance
of doubt, any such Indebtedness Incurred under a revolving credit facility, Incurred as Permitted Additional Debt or otherwise Incurred
under Section 2.14) by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of the
Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business.
“Incremental Commitments” shall have the
meaning provided in Section 2.14(a).
“Incremental Facilities” shall have the
meaning provided in Section 2.14(a).
“Incremental Facility
Closing Date” shall have the meaning provided in Section 2.14(e). The Incremental Facility
Closing Date for the 2019 Incremental Term Loans shall be the Third Incremental Agreement Effective Date.
“Incremental Limit” shall have the meaning
provided in Section 2.14(b).
“Incremental Ratio
Debt Amount” shall have the meaning provided in Section 2.14(b) and Section 10.1(u).
“Incremental
Revolving Credit Commitment Increase” shall have the meaning provided in Section 2.14(a).
“Incremental Revolving Credit Commitment
Increase Lender” shall have the meaning provided in Section 2.14(f)(ii).
“Incremental
Term Loan Commitment” shall mean the Commitment of any Lender to make Incremental Term Loans of a particular
Class pursuant to Section 2.14(a), which shall include the 2019 Incremental Term Loan Commitments.
“Incremental
Term Loan Facility” shall mean each Class of Incremental Term Loans made pursuant to Section 2.14,which shall include the 2019 Incremental Term Loan Facility.
“Incremental
Term Loan Maturity Date” shall mean, with respect to any Class of Incremental Term Loans made pursuant to Section 2.14,
the final maturity date thereof. The Incremental Term Loan Maturity Date for the 2019 Incremental Term Loans shall be the 2019 Incremental Term Loan Maturity Date.
“Incremental
Term Loans” shall have the meaning provided in Section 2.14(a), which shall include the 2019 Incremental Term Loans.
“Incur”
shall mean create, issue, assume, guarantee, incur or otherwise become directly or indirectly liable for any Indebtedness; provided,
however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such Person at the time it becomes a Restricted Subsidiary.
The term “Incurrence” when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance
with Section 10.1:
(a) amortization
of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security;
(b) the
payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled
dividends on Capital Stock in the form of additional Capital Stock of the same class and with the same terms; and
(c) the
obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of prepayment, redemption,
repurchase, defeasance, acquisition or similar payment or making of a mandatory offer to prepay, redeem, repurchase, defease, acquire
or similarly pay such Indebtedness;
will not be deemed to be the Incurrence of Indebtedness.
“Indebtedness” shall mean, as
to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities
in accordance with GAAP:
(a) all
indebtedness of such Person for borrowed money and all indebtedness of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;
(b) the
maximum amount (after giving pro forma effect to any prior drawings or reductions which have been reimbursed) of all letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments
issued or created by or for the account of such Person;
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(c)
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net Hedging Obligations of such Person;
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(d) all
obligations of such Person to pay the deferred purchase price of property or services (other than (i) current trade or other
ordinary course payables or liabilities or accrued expenses (but not any refinancings, extensions, renewals, or replacements
thereof) Incurred in the ordinary course of business and maturing within 365 days after the Incurrence thereof except if such trade
or other ordinary course payables or liabilities or accrued expenses bear interest, (ii) any earn-out or similar obligation,
unless such obligation has not been paid within 30 days after becoming due and payable and becomes a liability on the balance sheet
of such Person in accordance with GAAP and (iii) obligations resulting from take-or-pay contracts entered into in the ordinary
course of business);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar
financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
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(f)
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all Financing Lease Obligations;
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(g)
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all obligations of such Person in respect of Disqualified Capital Stock; and
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(h)
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all Guarantee Obligations of such Person in respect of any of the foregoing;
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provided that
Indebtedness shall not include (i) prepaid or Deferred Revenue arising in the ordinary course of business, (ii) purchase
price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy
warrants or other unperformed obligations of the seller of such asset, (iii) amounts owed to dissenting equityholders in
connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto (including any accrued interest), with respect to the Transactions or any other
Acquisition permitted under the Credit Documents, (iv) liabilities associated with customer prepayments and deposits and other
accrued obligations (including transfer pricing), in each case incurred in the ordinary course of business, (v) Non-Financing
Lease Obligations or other obligations under or in respect of straight-line leases, operating leases or Sale Leasebacks (except
resulting in Financing Lease Obligations), (vi) customary obligations under employment agreements and deferred compensation
arrangements, (vii) contingent post-closing purchase price adjustments, non-compete or consulting obligations or earn-outs to
which the seller in an Acquisition or Investment may become entitled and
(viii) Indebtedness of any Parent Entity appearing on the
balance sheet of the Borrower or any Restricted Subsidiary solely by reason of “pushdown” accounting under GAAP.
For all purposes hereof, the
Indebtedness of any Person shall (A) include the Indebtedness of any partnership or Joint Venture (other than a Joint Venture that
is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent
such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in
the calculation of Consolidated Total Debt of such Person and (B) in the case of Holdings, the Borrower and their Subsidiaries, exclude
all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the
ordinary course of business or consistent with past practice. The amount of any net Hedging Obligations on any date shall be deemed to
be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) above
shall, unless such Indebtedness has been assumed by such Person, be deemed to be equal to the lesser of (i) the aggregate unpaid
amount of such Indebtedness and (ii) the Fair Market Value of the property encumbered thereby as determined by such Person in good
faith.
“Indemnified Parties” shall have the meaning
provided in Section 13.5(a)(iii).
“Independent Financial
Advisor” shall mean an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses
of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has
been engaged.
“Initial Financial
Statement Delivery Date” shall mean the date on which Section 9.1 Financials are delivered to the Administrative Agent
under Section 9.1 for the first full fiscal quarterly or annual period of the Borrower completed after the Closing Date.
“Initial
Revolving Borrowing Amount” shall mean one or more Borrowings of Revolving Credit Loans on the Closing Date in an amount
not to exceed the aggregate amounts specified or referred to in the definition of the term “Permitted Initial Revolving Credit
Borrowing Purposes”; provided that, without limitation, Letters of Credit may be issued on the Closing Date to, among
other things, backstop or replace letters of credit outstanding immediately prior to the Closing Date under the Existing Credit
Facility.
“Initial Term Loan”
shall mean (a) prior to the First Incremental Agreement Effective Date, the loans made on the Closing Date pursuant to Section 2.1(a),
(b) from and after the First Incremental Agreement Effective Date but prior to the Second Incremental Agreement Effective Date, the
Incremental Term Loans made on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement and (c) from
and after the Second Incremental Agreement Effective Date, the Incremental Term Loans made on the Second Incremental Agreement Effective
Date pursuant to the Second Incremental Agreement.
“Initial Term Loan
Commitment” shall mean (a) in the case of each Lender that is a Lender on the Closing Date, the amount set forth opposite
such Lender’s name on Schedule 1.1(a) as such Lender’s “Initial Term Loan Commitment”, (b) in the case
of each Tranche B Term Lender, the amount of such Lender’s Incremental Term Loan Commitment under the First Incremental Agreement
(including, for the avoidance of doubt, the amount allocated to each Rollover Lender (as defined in the First Incremental Agreement)),
(c) in the case of each Tranche C Term Lender, the amount of such Lender’s Incremental Term Loan Commitment under the Second
Incremental Agreement (including, for the avoidance of doubt, the amount allocated to each Rollover Lender (as defined in the Second
Incremental Agreement)) and (d) in the case of any Lender that becomes a Lender after the Closing Date, the First Incremental Agreement
Effective Date or the Second Incremental Agreement Effective Date, as applicable, the amount specified as such Lender’s “Initial
Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term
Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the
Initial Term Loan Commitments as of the Closing Date was $265,000,000, the aggregate amount of the Initial Term Loan Commitments as of
the First Incremental Agreement Effective Date was $264,337,650 and the aggregate amount of the Initial Term Loan Commitments as of the
Second Incremental Agreement Effective Date iswas $292,354,969.
“Initial Term Loan
Facility” shall mean (a) prior to the First Incremental Agreement Effective Date, the Closing Date Term Loan Facility,
(b) from and after the First Incremental Agreement Effective Date but prior to the Second Incremental Agreement Effective Date, the
facility under which the Tranche B Term Loans are made available on the First Incremental Agreement Effective Date pursuant to the First
Incremental Agreement and (c) from and after the Second Incremental Agreement Effective Date, the facility under which the Tranche
C Term Loans are made available on the Second Incremental Agreement Effective Date pursuant to the Second Incremental Agreement.
“Initial Term Loan
Lender” shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial Term Loan
Maturity Date” shall mean the seventh anniversary of the Closing Date, or if such anniversary of the Closing Date is not a Business
Day, the Business Day immediately following such anniversary.
“Initial Term Loan Repayment Amount” shall
have the meaning provided in Section 2.5(b).
“Initial Term Loan Repayment Date” shall
have the meaning provided in Section 2.5(b).
“Intellectual Property” shall have the
meaning provided for such term in the Security Agreement.
“Intercompany Note”
shall mean the Intercompany Subordinated Note, dated as of the Closing Date, substantially in the form of Exhibit L hereto, executed
by Holdings, the Borrower and each other Restricted Subsidiary of the Borrower party thereto.
“Interest Period”
shall mean, with respect to any Eurodollar Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.
“Interpolated Rate” shall mean,
in relation to LIBOR, the rate which results from interpolating on a linear basis between:
(a) the
applicable LIBOR (as used in the definition of the term “Eurodollar Rate”) for the longest period (for which LIBOR is available)
which is less than the Interest Period of that Loan; and
(b) the
applicable LIBOR (as used in the definition of the term “Eurodollar Rate”) for the shortest period (for which LIBOR is
available) which exceeds the Interest Period of that Loan,
each as of approximately 11:00 a.m. (London, England time) two
Business Days prior to the commencement of such Interest Period of that Loan.
“Investment”
shall mean, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Capital Stock or Indebtedness or other securities of another Person, (b) a loan, advance or capital contribution
to, Guarantee Obligation with respect to any obligation of, or purchase or other acquisition of any other Indebtedness or equity participation
or interest in, another Person, including any partnership or Joint Venture interest in such other Person, excluding, in the case of the
Borrower and its Restricted Subsidiaries, intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive
of any roll-over or extensions of terms) and made in the ordinary course of business or (c) the purchase or other acquisition (in
one transaction or a series of transactions) of the property and assets or business of another Person or assets constituting a business
unit, line of business or division of such Person. The amount, as of any date of determination, of (i) any Investment in the form
of a loan or an advance shall be the principal amount thereof outstanding on such date, minus any payments in cash or Cash Equivalents
actually received by such investor representing interest in respect of such Investment, but without any adjustment for write-downs or
write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof,
(ii) any Investment in the form of a guarantee shall be equal to the stated or determinable amount of the related primary obligation,
or portion thereof, in respect of which such guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof, as determined in good faith by an Authorized Officer of the Borrower, (iii) any Investment in the form of a transfer
of Capital Stock or other non-cash property or services by the investor to the investee, including any such transfer in the form of a
capital contribution, shall be the Fair Market Value of such Capital Stock or other property or services as of the time of the transfer,
minus any payments actually received by such investor representing a Return in respect of such Investment, but without any other
adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the
date of such Investment, and (iv) any Investment (other than any Investment referred to in clause (i), (ii) or (iii) above)
by the specified Person in the form of a purchase or other acquisition for value of any Capital Stock, evidences of Indebtedness or other
securities of any other Person shall be the original cost of such Investment, except that the amount of any Investment in the form of
an Acquisition shall be the Acquisition Consideration, minus (i) the amount of any portion of such Investment that has been repaid
to the investor as a Return in respect of such Investment (without duplication of amounts increasing the Available Amount or the Available
Equity Amount), but without any other adjustment for increases or decreases in value of, or write- ups, write-downs or write-offs with
respect to, such Investment after the date of such Investment. For purposes of Section 10.5, if an Investment involves the acquisition
of more than one Person, the amount of such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided
that pending the final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably
determined by an Authorized Officer of the Borrower. For the avoidance of doubt, if the Borrower or any Restricted Subsidiary issues,
sells or otherwise Disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such
Person is no longer a Restricted Subsidiary, any Investment by the Borrower or any Restricted Subsidiary in such Person remaining after
giving effect thereto shall not be deemed to be a new Investment at such time.
“Investment Grade Rating”
shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P or an equivalent
rating by any other Rating Agency.
“Investment Grade
Securities” shall mean, (a) securities issued or directly and fully guaranteed or insured by the U.S. government or
any agency or instrumentality thereof (other than Cash Equivalents), (b) securities or debt instruments with an Investment
Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its
Subsidiaries, (c) investments in any fund that invests at least a 95% of its assets in investments of the type described in
clauses (a) and (b) above, which fund may also hold immaterial amounts of cash pending investment or distribution and
(d) corresponding instruments in countries other than the United States customarily utilized for high-quality investments.
“Investors” shall mean, collectively,
the Sponsor, the Rollover Investors and the other Employee Investors.
“ISP” shall
mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International
Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents”
shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement and instrument entered
into by a Letter of Credit Issuer and the Borrower (or any Restricted Subsidiary) or in favor of the Letter of Credit Issuer and relating
to such Letter of Credit.
“Joint Bookrunners”
shall mean UBS Securities LLC and SunTrust Robinson Humphrey, Inc., each in its capacity as joint bookrunner.
“Joint Venture”
shall mean a joint venture, partnership or similar arrangement, whether in corporate, partnership or other legal form.
“Junior Debt” shall mean any Subordinated
Indebtedness of any Credit Party.
“Junior Priority
Intercreditor Agreement” shall mean the Junior Priority Intercreditor Agreement substantially in the form of Exhibit G-2,
among (x) the Collateral Agent and (y) one or more representatives of the holders of Permitted Additional Debt and/or Permitted
Junior Priority Refinancing Debt, with any immaterial changes and material changes thereto in light of the prevailing market conditions,
which material changes shall be posted to the Lenders not less than five Business Days before execution thereof and, if the Required Lenders
shall not have objected to such changes within five Business Days after posting, then the Required Lenders shall be deemed to have agreed
that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement (with such changes) is reasonable
and to have consented to such intercreditor agreement (with such changes) and to the Administrative Agent’s and/or Collateral Agent’s
execution thereof.
“Latest Maturity
Date” shall mean, with respect to the Incurrence of any Indebtedness or the issuance of any Capital Stock, the latest Maturity
Date applicable to any Credit Facility that is outstanding hereunder as determined on the date such Indebtedness is Incurred or such Capital
Stock is issued.
“LCA Election” shall have the meaning
provided in Section 1.11.
“LCA Test Date” shall have the meaning
provided in Section 1.11.
“Lead Arrangers”
shall mean UBS Securities LLC and SunTrust Robinson Humphrey, Inc., each in its capacity as lead arranger.
“Lender” shall mean (a) the Persons listed on Schedule 1.1(a), (b) the Persons listed on Schedule 1 and Schedule 2 to the Third Incremental Agreement, (c) any other Person that shall become a party hereto as a “lender” pursuant to Section 13.6 and (cd) each other Person
that becomes a party hereto as a “lender” pursuant to the terms of Section 2.14 (including, for the avoidance of doubt,
the Tranche B Term Lenders under the First Incremental Agreement and including , for the avoidance of doubt, the Tranche
C Term Lenders under the Second Incremental Agreement and the 2019 Incremental Term Loan Lenders under the Third Incremental Agreement), in each case other than a Person who ceases to hold any outstanding Loans, Letter of Credit Exposure, Swingline Exposure or any Commitment.
“Lender Default”
shall mean (a) the refusal (in writing) or failure of any Revolving Credit Lender (which term, for purposes of this definition, shall
also include any Lender under an Additional/Replacement Revolving Credit Facility) to make available its portion of any Incurrence of
Revolving Credit Loans or participations in Letters of Credit or Swingline Loans, which refusal or failure is not cured within one Business
Day after the date of such refusal or failure, (b) the failure of any Revolving Credit Lender to pay over to the Administrative Agent,
any Letter of Credit Issuer, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, (c) the notification by a Revolving Credit Lender to the Borrower, the Collateral Agent or the
Administrative Agent that it does not intend or expect to comply with any of its funding obligations or has made a public statement to
that effect with respect to its funding obligations under this Agreement, (d) the failure by a Revolving Credit Lender to confirm
in a manner reasonably satisfactory to the Administrative Agent that it will comply with its obligations under this Agreement, (e) the
admission of a Distressed Person in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related Distress
Event or (f) any Lender has become the subject of a Bail-In Action.
“Lender-Related Distress
Event” shall mean, with respect to any Revolving Credit Lender (which term, for purposes of this definition, shall also include
any Lender under an Additional/Replacement Revolving Credit Facility), that such Revolving Credit Lender or any person that directly or
indirectly controls such Revolving Credit Lender (each, a “Distressed Person”), as the case may be, is or becomes subject
to a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver
or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such
Distressed Person or any person that directly or indirectly controls such Distressed Person is subject to a forced liquidation or winding
up, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by
any governmental authority having regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt or no longer
viable, or if any governmental authority having regulatory authority over such Distressed Person has taken control of such Distressed
Person or has taken steps to do so; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by
virtue of the ownership or acquisition of any equity interests in any Revolving Credit Lender or any person that directly or indirectly
controls such Revolving Credit Lender by a governmental authority or an instrumentality thereof; provided, further, that
such ownership interest does not result in or provide such person with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such person (or such governmental authority or instrumentality)
to reject, repudiate, disavow or disaffirm any contract or agreements made by such person or its parent entity.
“Letter of Credit” shall have the meaning
provided in Section 3.1(a).
“Letter of Credit
Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed
on the date when made or refinanced as a Borrowing.
“Letter of Credit
Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the amount of any Unpaid Drawings in respect
of which such Lender has made (or is required to have made) Revolving Credit Loans pursuant to Section 3.4 at such time and (b) such
Lender’s Revolving Credit Commitment Percentage of the Letter of Credit Obligations at such time (excluding the portion thereof
consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) Revolving Credit Loans pursuant
to Section 3.4).
“Letter of Credit Fee” shall have the
meaning provided in Section 4.1(c).
“Letter of Credit
Issuer” shall mean (a) UBS AG, Stamford Branch, (b) SunTrust Bank and (c) any one or more Persons who shall become
a Letter of Credit Issuer pursuant to Section 3.6. Any Letter of Credit Issuer may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of Credit Issuer”
shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one
Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed
to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context
requires.
“Letter of Credit
Maturity Date” shall mean the date that is three Business Days prior to the Revolving Credit Maturity Date.
“Letter of Credit
Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters
of Credit plus the aggregate of all Unpaid Drawings, including all Letter of Credit Borrowings. For all purposes of this Agreement,
if on any date of determination a Letter of Credit has expired by its terms, but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining
available to be drawn.
“Letter of Credit Participant” shall have
the meaning provided in Section 3.3(a).
“Letter of Credit Participation” shall
have the meaning provided in Section 3.3(a).
“Letter of Credit Request” shall
mean an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by a Letter
of Credit Issuer.
“Letter of Credit Sub-Commitment”
shall mean $15,000,000, as the same may be reduced from time to time pursuant to Section 4.2(b).
“Letter of Credit
Sub-Commitment Obligation” shall mean, in the case of each Letter of Credit Issuer that is a Letter of Credit Issuer on the
Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(a) as such Letter of Credit Issuer’s “Letter
of Credit Sub-Commitment Obligation”.
“Lien”
shall mean any mortgage, pledge, deed of trust, security interest, hypothecation, lien (statutory or other) or similar encumbrance and
any easement, right-of-way, restriction (including zoning restrictions), defect, exception or irregularity in title or similar charge
or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof); provided that in no event shall a Non-Financing Lease Obligation be deemed to be a Lien.
“Limited Condition
Acquisition” shall mean any Acquisition by the Borrower and/or one or more of its Restricted Subsidiaries permitted by this
Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan”
shall mean any Revolving Credit Loan, Additional/Replacement Revolving Credit Loan, Extended Revolving Credit Loan, Swingline Loan (including
any swingline loan pursuant to any Extended Revolving Credit Commitments or any Additional/Replacement Revolving Credit Commitments) or
Term Loan made by any Lender hereunder.
“Losses” shall have the meaning provided
in Section 13.5(a)(iii).
“Mandatory Borrowing” shall have the meaning
provided in Section 2.1(d)(ii).
“Market
Capitalization” shall mean an amount equal to (a) the total number of issued and outstanding shares of common Capital Stock
of the Borrower, Holdings or any Parent Entity on the date of the declaration of a Restricted Payment permitted pursuant to Section 10.6(m) 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 the date of declaration of such
Restricted Payment.
“Market Convention Rate”
shall have the meaning provided in Section 2.10(d).
“Master Agreement” shall have the
meaning provided in the definition of the term “Hedging Agreement.”
“Material Adverse Effect” shall
mean, except as provided in the proviso to Section 6.12, a circumstance or condition that would, individually or in the
aggregate, materially and adversely affect (a) the business, financial condition or results of operations of the Borrower and
its Restricted Subsidiaries, taken as a whole, (b) the ability of the Credit Parties (taken as a whole) to perform their
payment obligations under the Credit Documents or (c) the rights and remedies of the Administrative Agent, the Collateral Agent
and the Lenders under the Credit Documents.
“Material
Real Property” shall mean any parcel or parcels of Real Property owned in fee by any Credit Party, now or hereafter, having
a Fair Market Value (on a per property basis) of at least $5,000,000. For the purpose of determining the relevant value under this Agreement
with respect to the preceding clause, such value shall be determined as of (x) the Closing Date for Real Property now owned, (y) the
date of acquisition for Real Property acquired after the Closing Date or (z) the date on which the entity owning such Real Property
becomes a Credit Party after the Closing Date, in each case as determined in good faith by the Borrower.
“Maturity
Date” shall mean, as to the applicable Loan or Commitment, the Initial Term Loan Maturity Date, any2019
Incremental Term Loan Maturity Date, any Incremental Term Loan Maturity Date, the Revolving Credit Maturity Date, any maturity date
related to any Class of Additional/Replacement Revolving Credit Commitments or any maturity date related to any Class of Extended
Term Loans or any Class of Extended Revolving Credit Commitments, as applicable.
“Maximum Tender Condition” shall have
the meaning provided in Section 2.17(d).
“Merger Consideration” shall have the meaning provided in the recitals
to this Agreement.
“Merger Sub” shall have the meaning provided in the recitals to this Agreement.
“Merger Sub II” shall have the meaning
provided in the recitals to this Agreement.
“Mergers” shall have the meaning provided in the recitals to this Agreement.
“MFN Exceptions” shall have the meaning provided in Section 2.14(c).
“MFN Protection” shall have the meaning
provided in Section 2.14(c).
“Minimum Borrowing
Amount” shall mean (a) with respect to a Borrowing of Term Loans, $5,000,000 (or such lesser amount as may be agreed by
the Administrative Agent or as may be required in order to accommodate Borrowings described under Section 2.14(b)) and (b) with
respect to a Borrowing of Revolving Credit Loans, $1,000,000 and (c) with respect to a Borrowing of Swingline Loans, $100,000.
“Minimum Tender Condition” shall have
the meaning provided in Section 2.17(d).
“Minority Investment”
shall mean any Person (other than a Subsidiary) in which the Borrower or any Restricted Subsidiary owns Capital Stock.
“Moody’s”
shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage”
shall mean a mortgage or a deed of trust, deed to secure debt, trust deed or other security document entered into by the owner of a Mortgaged
Property in favor of the Collateral Agent for the benefit of the Secured Parties creating a Lien on such Mortgaged Property, substantially
in such form as may be reasonably agreed between the Borrower and the Collateral Agent.
“Mortgaged Property”
shall mean (a) the Real Property identified on Schedule 1.1(c) and (b) all Real Property owned in fee with respect to which
a Mortgage is required to be granted pursuant to Section 9.14(b).
“Multiemployer Plan”
shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which Holdings, the Borrower, a Restricted Subsidiary
or an ERISA Affiliate contributes, has an obligation to contribute or had an obligation to contribute over the five preceding calendar
years.
“Necessary Cure Amount” shall have the
meaning provided in Section 11.11(b).
“Net Cash Proceeds”
shall mean, with respect to any Prepayment Event, Incurrence of Indebtedness, any issuance of Capital Stock or any capital contribution
or any Disposition of any Investment (including any Designated Non-Cash Consideration), (a) the gross cash proceeds (including payments
from time to time in respect of installment or earn-out obligations, if applicable, but only as and when received and, with respect to
any Recovery Event, any insurance proceeds, eminent domain awards or condemnation awards in respect of such Recovery Event) received by
or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment Event, Incurrence of Indebtedness,
issuance of Capital Stock, receipt of a capital contribution or Disposition of any Investment, less (b) the sum of:
(i) in
the case of any Prepayment Event or such Disposition, the amount, if any, of all Taxes paid or estimated to be payable by any Parent Entity,
the Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event or such Disposition (including withholding
taxes imposed on the repatriation or expatriation of any such Net Cash Proceeds),
(ii) in
the case of any Prepayment Event or such Disposition, the amount of any reasonable reserve established in accordance with GAAP against
any liabilities (other than any amounts deducted pursuant to clause (i) above) (x) associated with the assets that are the subject
of such Prepayment Event or such Disposition and (y) retained by the Borrower or any of the Restricted Subsidiaries, including any
pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification
obligations associated with such transaction; provided that the amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such Prepayment Event or such Disposition
occurring on the date of such reduction,
(iii) in
the case of any Prepayment Event or such Disposition, the amount of any principal amount, premium or penalty, if any, interest or other
amounts on any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event or such Disposition to the extent
that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment
Event or such Disposition and such Indebtedness is actually so repaid (other than Indebtedness outstanding under the Credit Documents
or otherwise subject to a Customary Intercreditor Agreement and any costs associated with the unwinding of any Hedging Obligations in
connection with such transaction),
(iv) in
the case of any Asset Sale Prepayment Event, the amount of any proceeds of such Asset Sale Prepayment Event that the Borrower or the applicable
Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment to reinvest,
within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section 9.13);
provided that:
(A) the
Borrower or the applicable Restricted Subsidiary shall comply with Sections 9.10, 9.11 and 9.14(b) with respect to such reinvestment
if applicable;
(B) any
portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment within the Reinvestment
Period shall (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event occurring on the later of (1) the last
day of the Reinvestment Period and (2) 180 days after the date that the Borrower or such Restricted Subsidiary shall have entered
into an Acceptable Reinvestment Commitment and (y) be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or
to the prepayment, repurchase, defeasance, acquisition, redemption or similar payment of any secured Permitted Additional Debt or secured
Credit Agreement Refinancing Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in any such
case to the extent permitted under Section 5.2(a)(i); and
(C) any
proceeds subject to an Acceptable Reinvestment Commitment that is (I) later canceled or terminated for any reason before such proceeds
are applied in accordance therewith or (II) not consummated (i.e., the reinvestment contemplated by such Acceptable Reinvestment
Commitment is not made) shall be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment,
repurchase, defeasance, acquisition, redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement
Refinancing Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in any such case to the extent
permitted under Section 5.2(a)(i), unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment
Commitment with respect to such proceeds prior to the end of the Reinvestment Period,
(v) in
the case of any Recovery Prepayment Event, the amount of any proceeds of such Recovery Prepayment Event (x) that the Borrower or
the applicable Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment
to reinvest, within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section 9.13),
including for the repair, restoration or replacement of the asset or assets subject to such Recovery Prepayment Event, or (y) for
which the Borrower or the applicable Restricted Subsidiary has provided a Restoration Certification prior to the end of the Reinvestment
Period; provided that:
(A) the
Borrower or the applicable Restricted Subsidiary shall comply with Sections 9.10, 9.11 and 9.14(b) with respect to such reinvestment
if applicable;
(B) any
portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment or Restoration Certification
within the Reinvestment Period shall (x) be deemed to be Net Cash Proceeds of a Recovery Prepayment Event occurring on the later
of (1) the last day of the Reinvestment Period and (2) 180 days after the date that the Borrower or such Restricted Subsidiary
shall have entered into an Acceptable Reinvestment Commitment or shall have provided a Restoration Certification and (y) be applied
to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase, defeasance, acquisition,
redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement Refinancing Indebtedness pursuant
to the corresponding provisions of the governing documentation thereof, in any such case to the extent permitted under Section 5.2(a)(i);
and
(C) any
proceeds subject to an Acceptable Reinvestment Commitment or a Restoration Certification that is (I) later canceled or terminated
for any reason before such proceeds are applied in accordance therewith or (II) not consummated (i.e., the reinvestment, repair,
restoration or replacement contemplated by such Acceptable Reinvestment Commitment or Restoration Certification, as the case may be,
is not made) shall be applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i) or to the prepayment, repurchase,
defeasance, acquisition, redemption or similar payment of any secured Permitted Additional Debt or secured Credit Agreement Refinancing
Indebtedness pursuant to the corresponding provisions of the governing documentation thereof, in each case to the extent permitted under
Section 5.2(a)(i), unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment
or provides another Restoration Certification with respect to such proceeds prior to the end of the Reinvestment Period,
(vi) in
the case of any Asset Sale Prepayment Event or Recovery Prepayment Event by any non-wholly owned Restricted Subsidiary, the pro
rata portion of the net cash proceeds thereof (calculated without regard to this clause (vi)) attributable to minority interests
and not available for distribution to or for the account of the Borrower or a wholly owned Restricted Subsidiary as a result
thereof,
(vii) in
the case of any Prepayment Event, Incurrence of Indebtedness, Disposition, issuance of Capital Stock or receipt of a capital contribution,
the reasonable and customary fees, commissions, expenses (including attorney’s fees, investment banking fees, survey costs, title
insurance premiums and search and recording charges, transfer taxes, deed or mortgage recording taxes and other customary expenses and
brokerage, consultant and other customary fees or commissions), issuance costs, discounts and other costs and expenses (and, in the case
of the Incurrence of any Indebtedness the proceeds of which are required to be used to prepay any Class of Loans and/or reduce any
Class of Commitments under this Agreement, accrued interest and premium, if any, on such Loans and any other amounts (other than
principal) required to be paid in respect of such Loans and/or Commitments in connection with any such prepayment and/or reduction), and
payments made in order to obtain a necessary consent required by Applicable Law, in each case only to the extent not already deducted
in arriving at the amount referred to in clause (a) above, and
(viii) in
the case of any Asset Sale Prepayment Event or Disposition, any amounts funded into escrow established pursuant to the documents evidencing
any such Asset Sale Prepayment Event or Disposition to secure any indemnification obligations or adjustments to the purchase price associated
with any such Asset Sale Prepayment Event or Disposition until such amounts are released to the Borrower or a Restricted Subsidiary.
“Net Income”
shall mean, with respect to any Person, the net income (loss) attributable to such Person, determined on a consolidated basis in accordance
with GAAP and before any reduction in respect of dividends on preferred Capital Stock (other than dividends on Disqualified Capital Stock).
“New Holdings” shall have the meaning
provided in the definition of the term “Holdings”.
“Non-Consenting Lender” shall have the meaning provided
in Section 13.7(b).
“Non-Credit Party” shall mean any Person
that is not a Credit Party.
“Non-Credit Party Asset Sale” shall have
the meaning provided in Section 5.2(h).
“Non-Credit Party Recovery Event” shall
have the meaning provided in Section 5.2(h).
“Non-Debt Fund Affiliate” shall mean
any Affiliate of the Borrower (other than Holdings, the Borrower or any Restricted Subsidiary of the Borrower) that is not a Debt Fund
Affiliate.
“Non-Defaulting Lender” shall mean and
include each Lender other than a Defaulting Lender.
“Non-Excluded Taxes” shall have the meaning provided in Section 5.4(a).
“Non-Extension Notice Date” shall have
the meaning provided in Section 3.2(e).
“Non-Financing Lease Obligations” shall
mean a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income
statement for financial reporting purposes in accordance with GAAP. For avoidance of doubt, a straight-line or operating lease shall
be considered a Non- Financing Lease Obligation.
“Non-U.S. Lender” shall have the meaning
provided in Section 5.4(d).
“Note” shall mean a Term Note or a
Revolving Credit Note, in each case of the Borrower payable to any Lender or its registered assigns, evidencing the aggregate amount
of Indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender.
“Notice of Borrowing”
shall mean a request of the Borrower in accordance with the terms of Section 2.3 and substantially in the form of Exhibit D
or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Administrative Agent), appropriately completed and signed by an Authorized Officer of the Borrower.
“Notice of Conversion or Continuation”
shall have the meaning provided in Section 2.6(a).
“Notice Period” shall have the meaning
provided in Section 2.10(d).
“Obligations” shall mean the collective reference to:
(a) the
due and punctual payment of (i) the principal of and premium, if any, and interest at the applicable rate provided in this Agreement
(including interest accruing during the pendency of any proceeding under any applicable Debtor Relief Laws (or that would accrue but for
the operation of applicable Debtor Relief Laws), regardless of whether allowed or allowable in such proceeding) on the Loans, when and
as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required
to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon (including interest accruing during the pendency of any proceeding under any applicable
Debtor Relief Laws (or that would accrue but for the operation of applicable Debtor Relief Laws), regardless of whether allowed or allowable
in such proceeding) and obligations to provide Cash Collateral, and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any applicable proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding),
of the Borrower or any other Credit Party to any of the Secured Parties under this Agreement and the other Credit Documents,
(b) the
due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower under or pursuant to this Agreement
and the other Credit Documents,
(c) the
due and punctual payment and performance of all the covenants, agreements, obligations, and liabilities of each other Credit Party under
or pursuant to this Agreement or the other Credit Documents,
(d) the
due and punctual payment and performance of all Cash Management Obligations under each Secured Cash Management Agreement of a Credit Party
or any Restricted Subsidiary thereof, and
(e) the
due and punctual payment and performance of all Hedging Obligations under each Secured Hedging Agreement of a Credit Party or any Restricted
Subsidiary thereof (other than with respect to any such Credit Party’s Hedging Obligations that constitute Excluded Swap Obligations
with respect to such Credit Party).
Notwithstanding the
foregoing, (i) unless otherwise agreed to by the Borrower, the obligations of a Credit Party or any Restricted Subsidiary
thereof under any Secured Cash Management Agreement and Secured Hedging Agreement shall be secured and guaranteed pursuant to the
Security Documents and only to the extent that, and for so long as, the other Obligations are so secured and guaranteed,
(ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement and the other Credit Documents
shall not require the consent of the holders of the Cash Management Obligations under Secured Cash Management Agreements or the
consent of the holders of the Hedging Obligations under Secured Hedging Agreements and (iii) Obligations shall in no event
include any Excluded Swap Obligations.
“OFAC” shall have the meaning provided
in Section 8.20(a).
“OID” shall mean original issue discount.
“Organizational Documents”
shall mean (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate
or articles of formation or organization and operating agreement and (c) with respect to any partnership, Joint Venture, trust or
other form of business entity, the partnership, Joint Venture or other applicable agreement of formation or organization and, if applicable,
any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation
or organization of such entity.
“Other Taxes” shall have the meaning provided
in Section 5.4(b).
“Overnight Rate” shall mean, for any
day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate determined by the Administrative Agent,
the applicable Letter of Credit Issuer or the Swingline Lender, as the case may be, in accordance with banking industry rules on
interbank compensation.
“Parent Entity”
shall mean any Person that is a direct or indirect parent company (which may be organized as, among other things, a partnership) of Holdings
and/or the Borrower, as applicable. For the avoidance of doubt, any Person that is formed to effect a public offering of common Capital
Stock that directly or indirectly owns a majority of the Voting Stock of Holdings will be deemed a Parent Entity of Holdings.
“Participant” shall have the meaning provided
in Section 13.6(d)(i).
“Participant Register” shall have the meaning provided in Section 13.6(d)(ii).
“PATRIOT ACT”
shall have the meaning provided in Section 8.21.8.20(a).
“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Pension Plan”
shall mean any “employee pension benefit plan” (as defined in Section 3(2) of ERISA, other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA that is sponsored, maintained
or contributed to by Holdings, the Borrower, a Restricted Subsidiary or an ERISA Affiliate or, solely with respect to representations
and covenants that relate to liability under Section 4069 of ERISA, that was so maintained and in respect of which the Borrower,
any Restricted Subsidiary or ERISA Affiliate would have liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
“Perfection Certificate”
shall mean a certificate in the form of Exhibit M or any other form approved by the Collateral Agent in its reasonable discretion.
“Permitted
Acquisition” shall mean any Acquisition by the Borrower or any of the Restricted Subsidiaries, so long as (a) such
Acquisition and all transactions related thereto shall be consummated in all material respects in accordance with all Applicable
Laws, (b) if such Acquisition involves the acquisition of Capital Stock of a Person that upon such Acquisition would become a
Subsidiary, such Acquisition shall result in the issuer of such Capital Stock becoming a Restricted Subsidiary and, to the extent
required by Section 9.10, a Guarantor, (c) to the extent required by Sections 9.10, 9.11 and/or 9.14(b), such Acquisition
shall result in the Collateral Agent, for the benefit of the Secured Parties, being granted a security interest in any Capital Stock
or any assets so acquired, (d) subject to Section 1.11, both immediately prior to and after giving pro forma effect to
such Acquisition, no Event of Default under either Section 11.1 or Section 11.5 shall have occurred and be continuing and
(e) immediately after giving pro forma effect to such Acquisition, the Borrower and its Restricted Subsidiaries shall be in
compliance with Section 9.13.
“Permitted
Additional Debt” shall mean (a) secured or unsecured bonds, notes or debentures (which bonds, notes or debentures, if
secured, may only be secured by Liens on the Collateral having a priority ranking equal to the priority of the Liens on the
Collateral securing the Obligations (but without regard to control of remedies) or by Liens on the Collateral having a priority
ranking junior to the Liens on the Collateral securing the Obligations) or
(b) secured or unsecured loans (or commitments to provide
loans or other extensions of credit) (which loans or commitments, if secured, may only be secured by Liens on the Collateral having
a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but without regard to control of
remedies) or by Liens on the Collateral having a priority ranking junior to the Liens on the Collateral securing the Obligations),
in each case Incurred by or provided to the Borrower or another Guarantor; provided that (a) the terms of such
Indebtedness or commitments do not provide for a maturity date that is earlier than the Latest Maturity Date, a Weighted Average
Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans or mandatory prepayments,
mandatory redemptions, mandatory commitment reductions, mandatory offers to purchase or mandatory sinking fund obligations prior to
the Latest Maturity Date, other than customary prepayments, commitment reductions, repurchases, redemptions, defeasances,
acquisitions or satisfactions and discharges, or offers to prepay, reduce, redeem, repurchase, defease, acquire or satisfy and
discharge, in each case upon, a change of control, asset sale event or casualty, eminent domain or condemnation event, or on account
of the accumulation of excess cash flow (in the case of loans or commitments), AHYDO Catch-Up Payments and customary acceleration
rights upon an event of default; provided that the foregoing requirements of this clause (a) shall not apply to the
extent such Indebtedness or commitments constitute a customary bridge facility, so long as the long-term Indebtedness into which any
such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (a) and such
conversion or exchange is subject only to conditions customary for similar conversions or exchanges, (b) except for any of the
following that are applicable only to periods following the Latest Maturity Date, the covenants, events of default, Subsidiary
guarantees and other terms for such Indebtedness or commitments (excluding, for the avoidance of doubt, interest rates (including
through fixed interest rates), interest rate margins, rate floors, fees, maturity, funding discounts, original issue discounts,
currency denomination and redemption or prepayment terms and premiums), when taken as a whole, are determined by the Borrower to
either (A) be consistent with market terms and conditions and conditions at the time of Incurrence or effectiveness or
(B) not be materially more restrictive on the Borrower and its Restricted Subsidiaries than the terms of this Agreement, when
taken as a whole (provided that, if the documentation governing such Indebtedness or commitments contains any Previously
Absent Financial Maintenance Covenant, the Administrative Agent shall have been given prompt written notice thereof and this
Agreement shall have been amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit
Facility (provided, however, that, if (x) the documentation governing the Permitted Additional Debt that includes
a Previously Absent Financial Maintenance Covenant consists of a revolving credit facility (whether or not the documentation
therefor includes any other facilities) and (y) such Previously Absent Financial Maintenance Covenant is a
“springing” financial maintenance covenant for the benefit of such revolving credit facility or a covenant only
applicable to, or for the benefit of, a revolving credit facility, then this Agreement shall be amended to include such Previously
Absent Financial Maintenance Covenant only for the benefit of each revolving credit facility hereunder (and not for the benefit of
any term loan facility hereunder) and such Indebtedness or commitments shall not be deemed “more restrictive” solely as
a result of such Previously Absent Financial Maintenance Covenant benefiting only such revolving credit facilities); provided
that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior
to the Incurrence of such Indebtedness or the providing of such commitments, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or commitments or drafts of the documentation relating thereto, stating that the
Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence
that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such
five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees), (c) if such Indebtedness is senior subordinated or subordinated Indebtedness, the terms of such Indebtedness
provide for customary “high yield” subordination of such Indebtedness to the Obligations, (d) any Permitted
Additional Debt may not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations, (e) any
secured Permitted Additional Debt Incurred may not be secured by any assets that do not secure the Obligations and shall be subject
to an applicable Customary Intercreditor Agreement and (f) any Permitted Additional Debt in the form of loans secured by Liens
on the Collateral having a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but
without regard to control of remedies) shall be subject to the MFN Protection set forth in Section 2.14(c) (but subject to
the MFN Exceptions to such MFN Protection) as if such Permitted Additional Debt were an Incremental Term Loan.
“Permitted Additional
Debt Documents” shall mean any document or instrument (including any guarantee, security or collateral agreement or mortgage
and which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Additional Debt
by any Credit Party.
“Permitted Additional
Debt Obligations” shall mean, if any secured Permitted Additional Debt has been Incurred by or provided to a Credit Party and
is outstanding, the collective reference to (a) the due and punctual payment of (i) the principal of and premium, if any, and
interest at the applicable rate provided in the applicable Permitted Additional Debt Documents (including interest accruing during the
pendency of any proceeding under any applicable Debtor Relief Laws (or would accrue but for the operation of applicable Debtor Relief
Laws), regardless of whether allowed or allowable in such proceeding) on any such Permitted Additional Debt, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment, repurchase, redemption, defeasance, acquisition or otherwise
and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency of any proceeding under any applicable Debtor Relief Laws,
regardless of whether allowed or allowable in such proceeding), of the Borrower or any other Credit Party to any of the Permitted Additional
Debt Secured Parties under the applicable Permitted Additional Debt Documents and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Borrower or any Credit Party under or pursuant to applicable Permitted Additional Debt
Documents.
“Permitted Additional
Debt Secured Parties” shall mean the holders from time to time of the secured Permitted Additional Debt Obligations (and any
representative on their behalf).
“Permitted
Debt Exchange” shall have the meaning provided in Section 2.17(a).
“Permitted Debt Exchange Offer” shall
have the meaning provided in Section 2.17(a).
“Permitted Encumbrances” shall mean:
(a) Liens
for Taxes, assessments or other governmental charges or claims that are not yet overdue by more than sixty days or more, or if more than
sixty days overdue either (i) that are being diligently contested in good faith and by appropriate proceedings for which appropriate
reserves have been established in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction or (ii) with
respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(b) Liens
in respect of property or assets of the Borrower or any of its Restricted Subsidiaries imposed by Applicable Law, such as landlord’s,
carriers’, warehousemen’s, repairmen’s, construction contractors’ and mechanics’ Liens, supplier of materials,
architects’ and other similar Liens, in each case so long as such Liens arise in the ordinary course of business or consistent with
past practice and secure amounts not overdue for a period of more than sixty days or, if more than sixty days overdue either (i) no
action has been taken to enforce such Lien, (ii) such amount is being diligently contested in good faith by appropriate proceedings
for which appropriate reserves have been established in accordance with GAAP or the equivalent accounting principles in the relevant local
jurisdiction or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse
Effect;
(c) Liens
arising from judgments, awards, attachments or decrees for the payment of money in circumstances not constituting an Event of Default
under Section 11.9;
(d) Liens
incurred or pledges or deposits (i) made in connection with the Federal Employers Liability Act or any other workers’ compensation,
unemployment insurance, employers’ health tax and other types of social security or similar legislation, (ii) securing insurance
premiums, other liabilities (including in respect of reimbursement and indemnified obligations) to insurance carriers under insurance
or self-insurance arrangements (including in respect of deductibles, co-payment, co-insurance, self- insurance retention amounts and premiums
and adjustments thereof), (iii) securing the performance of tenders, public or statutory obligations, surety, stay, indemnity, warranty
release, customs and appeal bonds, bids, licenses, leases (other than Financing Lease Obligations), contracts (including government contracts
and trade contracts (other than for Indebtedness)), performance, performance and completion, completion and return-of-money bonds or guarantees,
government contracts, financial assurances and completion obligations and other similar obligations, (iv) securing contested Taxes
or import duties or the payment of rent, (v) securing letters of credit, bank guarantees or similar items issued or posted to support
the payment of or for the benefit of items in the foregoing clauses (i), (ii), (iii) and (iv) above, in each case incurred in
the ordinary course of business or consistent with past practice;
(e) ground
leases or subleases, licenses or sublicenses in respect of Real Property on which locations and/or facilities owned or leased by the Borrower
or any of its Restricted Subsidiaries are located;
(f) (i) easements
or reservations of, or rights of others for, rights-of-way, licenses, special assessments, survey exceptions, restrictions (including
zoning restrictions), minor title defects, servitudes, drains, sewers, exceptions or irregularities in title, encroachments, protrusions
and other similar charges, electric lines, telegraph and telephone lines and other similar purposes, or encumbrances or restrictions on
the use of Real Property, which in each case do not and could not reasonably be expected to have a Material Adverse Effect, and that were
not incurred in connection with and do not secure any Indebtedness, and (ii) to the extent reasonably agreed by the Collateral Agent,
any exception on the title policies issued in connection with any Mortgaged Property;
(g) any
(i) Lien or interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s,
licensor’s or sublicensor’s interest under any lease, sublease, license or sublicense permitted by this Agreement (other than
in respect of a Financing Lease Obligation), (ii) landlord Liens permitted by the terms of any lease, (iii) restriction or encumbrance
that the interest or title of any such lessor, sublessor, licensor or a sublicensor may be subject (including ground lease) or (iv) subordination
of the interest of the lessee, sublessee, licensee or sublicensee under such lease or license to any restriction or encumbrance referred
to in the preceding clause (iii);
(h) Liens
in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with
the importation of goods or to secure the performance of leases of Real Property;
(i) Liens
on goods or inventory or proceeds thereof the purchase, shipment or storage price of which is financed by a documentary letter of credit
or bankers’ acceptance issued or created for the account of the Borrower or any of its Restricted Subsidiaries; provided
that such Lien secures only the obligations of the Borrower or such Restricted Subsidiaries in respect of such letter of credit or bankers’
acceptance to the extent permitted under Section 10.1;
(j) licenses,
sublicenses and cross-licenses of Intellectual Property granted in the ordinary course of business;
(k) Liens
arising from precautionary UCC (or equivalent statute) financing statement, other applicable personal property or movable property security
registry financing statements or similar filings made in respect of Non-Financing Lease Obligations, consignment arrangements or bailee
arrangements entered into by the Borrower or any of its Restricted Subsidiaries;
(l) any
zoning, building or similar law or right reserved to, or vested in, any Governmental Authority to control or regulate the use of any Real
Property or any structure thereon that does not and could not reasonably be expected to have a Material Adverse Effect;
(m) (i) leases,
licenses, subleases or sublicenses (including of Intellectual Property) granted to others in the ordinary course of business that do not
and could not reasonably be expected to have a Material Adverse Effect or (ii) 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 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;
(n) Liens
given to a public utility or any municipality or Governmental Authority when required by such utility or other authority in connection
with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary; provided that such Liens do not and could
not reasonably be expected to have a Material Adverse Effect;
(o) servicing
agreements, development agreements, site plan agreements, subdivision agreements and other agreements with Governmental Authorities pertaining
to the use or development of any of the Real Property of the Borrower or any Restricted Subsidiary, including, without limitation, any
obligations to deliver letters of credit and other security as required, so long as the same do not and could not reasonably be expected
to have a Material Adverse Effect;
(p) 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;
(q) reservations,
limitations, provisos and conditions expressed in any original grant from any Governmental Authority or other grant of real or immovable
property or interests therein;
(r) Liens
consisting of royalties payable with respect to any asset, right or property of the Borrower or its Subsidiaries;
(s) statutory
Liens incurred or pledges or deposits made in favor of a Governmental Authority to secure the performance of obligations of the Borrower
or any of its Subsidiaries under Environmental Laws to which the Borrower or any of its Subsidiaries or any assets of the Borrower or
any of its Subsidiaries is subject, in each case incurred or made in the ordinary course of business or consistent with past practice;
(t) all
rights of expropriation, access or use or other similar right conferred by or reserved by any federal, state or municipal Governmental
Authority;
(u) the
right reserved to, or vested in, any Governmental Authority by any statutory provision or by the terms of any lease, license, franchise,
grant or permit of the Borrower or any Restricted Subsidiary, to terminate any such lease, license, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance thereof;
(v) Liens
arising from Cash Equivalents described in clause (i) of the definition of the term “Cash Equivalents”; and
(w) with
respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by any Applicable Law.
“Permitted Equal
Priority Refinancing Debt” shall mean any secured Indebtedness Incurred by the Borrower and/or the Guarantors in the form of
one or more series of senior secured notes, bonds, debentures or loans; provided that (a) such Indebtedness is secured by
Liens on all or a portion of the Collateral on an equal priority basis with the Liens on the Collateral securing the Obligations (but
without regard to the control of remedies) and is not secured by any property or assets of Holdings, the Borrower or any Restricted Subsidiary
other than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth in the provisos to the definition
of “Credit Agreement Refinancing Indebtedness”, (c) such Indebtedness is not at any time guaranteed by any Persons other
than Persons that are Guarantors and (d) the holders of such Indebtedness (or their representative) and Collateral Agent shall become
parties to a Customary Intercreditor Agreement described in clause (a) of the definition thereof providing that the Liens on the
Collateral securing such obligations shall rank equal in priority to the Liens on the Collateral securing the Obligations (but without
regard to the control of remedies).
“Permitted Holder
Group” shall have the meaning provided in the definition of the term “Permitted Holders”.
“Permitted Holders”
shall mean each of (a) the Investors, (b) the Employee Investors and (c) other than for purposes of determining the “Permitted
Holders” for purposes of clause (a)(i)(x) of the definition
of “Change of Control”, any group (within the meaning of Section 13(d)(3) of the Exchange Act (or any successor
provision)) the members of which include any of the Permitted Holders specified in clauses (a) or (b) above (a “Permitted
Holder Group”); provided that, in the case of any Permitted Holder Group, no Person or other group (other than the Permitted
Holders specified in clauses (a) or (b) above) own, directly or indirectly, Capital Stock having more than 50.0% of the total
voting power of the Voting Stock of Holdings (or, for the avoidance of doubt, any New Holdings or Successor Holdings) or any Parent Entity
held by such Permitted Holder Group.
“Permitted Initial
Revolving Credit Borrowing Purposes” shall mean one or more Borrowings of Revolving Credit Loans equal to the sum of (a) an
amount sufficient to fund any OID or upfront fees required to be funded pursuant to the “flex provisions” of the Fee Letter
on the Closing Date plus (b) an amount sufficient to fund any ordinary course working capital requirements of the Borrower
and its Subsidiaries (including the Target, Amplify and their respective Subsidiaries) on the Closing Date plus (c) an amount
sufficient to cash collateralize letters of credit outstanding immediately prior to the Closing Date under the Existing Credit Facility
plus (d) an amount not to exceed $5,000,000 to pay the Merger Consideration, the Existing Debt Refinancing and/or the Transaction
Expenses (including any OID or upfront fees).
“Permitted Investment” shall have the
meaning provided in Section 10.5.
“Permitted
Junior Priority Refinancing Debt” shall mean secured Indebtedness Incurred by any Credit Party in the form of one or more
series of junior lien secured notes, bonds or debentures or junior lien secured loans; provided that (a) such
Indebtedness is secured by Liens on all or a portion of the Collateral on a junior priority basis to the Liens on the Collateral
securing the Obligations and any other First Lien Obligations and is not secured by any property or assets of Holdings, the Borrower
or any Restricted Subsidiary other than the Collateral,
(b) such Indebtedness satisfies the applicable requirements
set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness” (provided that such
Indebtedness may be secured by a Lien on the Collateral that ranks junior in priority to the Liens on the Collateral securing the
Obligations and any other First Lien Obligations, notwithstanding any provision to the contrary contained in the definition of
“Credit Agreement Refinancing Indebtedness”), (c) the holders of such Indebtedness (or their representative) and
the Collateral Agent shall become parties to a Customary Intercreditor Agreement described in clause (b) of the definition
thereof providing that the Liens on the Collateral securing such obligations shall rank junior in priority to the Liens on the
Collateral securing the Obligations, and (d) such Indebtedness is not at any time guaranteed by any Person other than Persons
that are Guarantors.
“Permitted
Refinancing Indebtedness” shall mean, with respect to any Indebtedness (the “Refinanced Indebtedness”),
any Indebtedness Incurred in exchange for or as a replacement of (including by entering into alternative financing arrangements in
respect of such exchange or replacement (in whole or in part), by adding or replacing lenders, creditors, agents, borrowers and/or
guarantors, or, after the original instrument giving rise to such Indebtedness has been terminated, by entering into any credit
agreement, loan agreement, note purchase agreement, indenture or other agreement), or the net proceeds of which are to be used for
the purpose of modifying, extending, refinancing, renewing, replacing, redeeming, repurchasing, defeasing, acquiring, amending,
supplementing, restructuring, repaying, prepaying, retiring, extinguishing or refunding (collectively to
“Refinance” or a “Refinancing” or “Refinanced”), such Refinanced
Indebtedness (or previous refinancing thereof constituting Permitted Refinancing Indebtedness); provided that (A) the
principal amount (or accreted value, if applicable) of any such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Refinanced Indebtedness outstanding immediately prior to the consummation of such
Refinancing except by an amount equal to the unpaid accrued interest, dividends and premium (including tender premiums), if any,
thereon plus defeasance costs, underwriting discounts and other amounts paid and fees and expenses (including OID, closing
payments, upfront fees and similar fees) incurred in connection with such Refinancing plus an amount equal to any existing
commitment unutilized and letters of credit undrawn thereunder, (B) if the Indebtedness being Refinanced is Indebtedness
permitted by Section 10.1(a), 10.1(h) or 10.1(u), the direct and contingent obligors with respect to such Permitted
Refinancing Indebtedness are not changed (except that any Credit Party may be added as an additional direct or contingent obligor in
respect of such Permitted Refinancing Indebtedness), (C) other than with respect to a Refinancing in respect of Indebtedness
permitted pursuant to Section 10.1(f) or Section 10.1(g), such Permitted Refinancing Indebtedness shall have a final
maturity date equal to or earlier than the final maturity date of, and shall have a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Refinanced Indebtedness; provided that the foregoing requirements
of this clause (C) shall not apply to the extent such Indebtedness constitutes a customary bridge facility, so long as the
long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged satisfies the requirements of
this clause (C) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges,
and (D) if the Indebtedness being Refinanced is Indebtedness permitted by Section 10.1(a), 10.1(h) or 10.1(u), except
for any of the following that are only applicable to periods after the Latest Maturity Date, the terms and conditions contained in
the documentation governing such Permitted Refinancing Indebtedness, taken as a whole, are determined by the Borrower to either
(A) be consistent with market terms and conditions and conditions at the time of incurrence, issuance or effectiveness or
(B) not be materially more restrictive on the obligor or obligors of such Indebtedness than the terms and conditions contained
in the documentation governing such Refinanced Indebtedness being Refinanced (including, if applicable, as to collateral priority
and subordination, but excluding as to interest rates (including through fixed exchange rates), interest rate margins, rate floors,
fees, maturity, currency denomination, funding discounts, original issue discount and redemption or prepayment terms and premiums)
(provided that, if the documentation governing such Permitted Refinancing Indebtedness contains a Previously Absent Financial
Maintenance Covenant, the Administrative Agent shall have been given prompt written notice thereof and this Agreement shall be
amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility (provided, however,
that if (x) the documentation governing the Permitted Refinancing Indebtedness that includes a Previously Absent Financial
Maintenance Covenant consists of a revolving credit facility (whether or not the documentation therefor includes any other
facilities) and (y) such Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance
covenant for the benefit of such revolving credit facility or a covenant only applicable to, or for the benefit of, a revolving
credit facility, the Previously Absent Financial Maintenance Covenant shall only be included in this Agreement for the benefit of
each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder) and such Permitted
Refinancing Indebtedness shall not be deemed “more restrictive” solely as a result of such Previously Absent Financial
Maintenance Covenant benefiting only such revolving credit facilities)); provided that a certificate of an Authorized Officer
of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness,
together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the
documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the
foregoing requirement in clause (D) shall be conclusive evidence that such terms and conditions satisfy the foregoing
requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such
determination (including a reasonable description of the basis upon which it disagrees).
“Permitted Unsecured
Refinancing Debt” shall mean unsecured Indebtedness Incurred by any Credit Party in the form of one or more series of senior,
senior subordinated or subordinated unsecured notes, bonds, debentures or loans; provided that (a) such Indebtedness satisfies
the applicable requirements set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness” and
(b) such Indebtedness is not at any time guaranteed by any Persons other than Persons that are Guarantors.
“Person” shall mean any individual,
partnership, Joint Venture, firm, corporation, unlimited liability company, limited liability company, association, trust or other enterprise
or any Governmental Authority.
“Planned Expenditures” shall have the
meaning provided in the definition of the term “Excess Cash Flow.”
“Platform” shall have the meaning provided
in Section 13.2.
“Pledge Agreement”
shall mean the Pledge Agreement, dated as of the Closing Date, among Holdings, the Borrower, the Domestic Subsidiary pledgors party thereto
and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C.
“Preferred Stock”
shall mean any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“Prepayment Event”
shall mean any Asset Sale Prepayment Event, Recovery Prepayment Event or Debt Incurrence Prepayment Event.
“Prepayment Premium Period” shall have
the meaning provided in Section 5.1(b).
“Present Fair Saleable
Value” shall mean the amount that could be obtained by an independent willing seller from an independent willing buyer if the
assets (both tangible and intangible) of the applicable Person and its subsidiaries taken as a whole are sold on a going-concern basis
with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises
insofar as such conditions can be reasonably evaluated.
“Previous
Holdings” shall have the meaning provided in the definition of the term “Holdings.”
“Previously
Absent Financial Maintenance Covenant” shall mean, at any time (x) any financial maintenance covenant that is not
included in this Agreement at such time and (y) any financial maintenance covenant in any other Indebtedness that is included
in this Agreement at such time but with covenant levels that are more restrictive on the Borrower and the Restricted Subsidiaries
than the covenant levels included in this Agreement at such time.
“Prime Rate”
shall mean the rate of interest last quoted by The Wall Street Journal (or another national publication selected by the Administrative
Agent and reasonably acceptable to the Borrower) as the “Prime Rate” in the U.S. or, if The Wall Street Journal or such other
national publication 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 determined by the Administrative Agent) or any similar release by the Federal Reserve
Board (as determined by the Administrative Agent).
“Proceeding” shall have the meaning provided
in Section 13.5(a)(iii).
“Pro Forma Balance Sheet” shall have the
meaning provided in Section 8.9(b).
“Pro Forma Entity” shall mean
any Acquired Entity or Business, any Sold Entity or Business, any Converted Restricted Subsidiary or any Converted Unrestricted Subsidiary.
“Pro Forma Financial Statements” shall
have the meaning provided in Section 8.9(b).
“Public Company” shall mean
any Person with a class or series of Capital Stock that is traded on the New York Stock Exchange, the NASDAQ or any comparable stock exchange
or similar market.
“Public Company Costs”
shall mean costs relating to compliance with the provisions of the Securities Act and the Exchange Act, in each case 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, costs 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.
“Public Lender” shall have the meaning
provided in Section 13.2.
“Purchasing Borrower Party”
shall mean Holdings, the Borrower or any Restricted Subsidiary of the Borrower that becomes a Transferee pursuant to Section 13.6(g).
“QFC”
shall have the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in
accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC
Credit Support” shall have the meaning provided in Section 13.23.
“Qualified Capital Stock” shall mean any
Capital Stock that is not Disqualified Capital Stock.
“Qualified
Proceeds” shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business; provided
that the Fair Market Value of any such assets or Capital Stock shall be determined by the Borrower in good faith.
“Qualified Receivables
Facility” shall mean any Receivables Facility of a Receivables Subsidiary that meets the following conditions: (a) the
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 Borrower and its Restricted Subsidiaries; (b) all
sales of accounts receivables and related assets by the 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 Borrower); (c) the financing terms, covenants, termination
events and other provisions thereof shall be on market terms (as determined in good faith by the 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 Borrower or any of its Restricted Subsidiaries (other than a
Receivables Subsidiary).
“Qualifying IPO”
shall mean the issuance by Holdings (or any Parent Entity of Holdings) of its common Capital Stock in an underwritten primary public offering
(other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed
with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“Rating Agency”
shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Initial Term Loans and/or the
Borrower and/or any other Person, instrument or security publicly available, a nationally recognized statistical rating agency or agencies,
as the case may be, selected by the Borrower which shall be substituted for Moody’s or S&P or both, as the case may be.
“Real Property”
shall mean, collectively, all right, title and interest in and to any and all parcels of or interests in real property owned or leased
by any person, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant
fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership thereof.
“Receivables
Facility” shall mean any of one or more receivables financing facilities as amended, supplemented, modified, extended,
renewed, restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations,
warranties, covenants and indemnities made in connection with such facilities) to the Borrower or any of the Restricted Subsidiaries
(other than a Receivables Subsidiary) pursuant to which the Borrower or any of the Restricted Subsidiaries sells its accounts
receivable 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 its accounts receivable 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
Fees” shall mean distributions or payments made directly or by means of discounts with respect to any accounts receivable or
participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary
in connection with, any Receivables Facility.
“Receivables
Subsidiary” shall mean any Subsidiary formed for the purpose of, and that solely engages only in, one or more Receivables Facilities
and other activities reasonably related thereto.
“Recovery Event”
shall mean (a) any damage to, destruction of, or other casualty or loss involving, any property or asset or (b) any seizure,
condemnation, confiscation or taking under the power of eminent domain of, or any requisition of title or use of or relating to, or any
similar event in respect of, any property or asset, in each case, of the Borrower or a Restricted Subsidiary.
“Recovery Prepayment
Event” shall mean the receipt of cash proceeds with respect to any settlement or payment in connection with any Recovery Event
in respect of any property or asset of the Borrower or any Restricted Subsidiary; provided that the term “Recovery Prepayment
Event” shall not include any Asset Sale Prepayment Event.
“Redemption Notice” shall
have the meaning provided in Section 10.7(a).
“Reference Rate”
shall mean an interest rate per annum equal to the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London
time) on such day by reference to ICE Benchmark Administration Limited’s “LIBOR” rate (or by reference to the rates
provided by any Person that take over the administration of such rate if ICE Benchmark Administration Limited is no longer making a “LIBOR”
rate available) for deposits in Dollars (as set forth on the Bloomberg screen displaying such “LIBOR” rate (or, in the event
such rate does not appear on a Bloomberg page or screen, on any successor or substitute page or screen that displays such rate,
or on the appropriate page of such other information service that publishes such rate from time to time, in each case as selected
by the Administrative Agent)) for a period equal to three-months; provided that, to the extent that the Eurodollar Rate is not
ascertainable pursuant to the foregoing, the Reference Rate shall be determined by the Administrative Agent to be the average of the rates
per annum at which deposits in Dollars are offered for a three month Interest Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on such date.
“Refinance,”
“Refinancing” and “Refinanced” shall have the meanings provided in the definition of the term “Permitted
Refinancing Indebtedness”.
“Refinanced Debt”
shall have the meaning provided in the definition of Credit Agreement Refinancing Indebtedness.
“Refinanced Indebtedness”
shall have the meaning provided in the definition of the term “Permitted Refinancing Indebtedness”.
“Refunding Capital Stock”
shall have the meaning provided in Section 10.6(a).
“Register” shall have the meaning provided in Section 13.6(b)(v).
“Regulation D” shall mean Regulation
D of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Regulation T” shall mean Regulation
T of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin
requirements.
“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin
requirements.
“Reinvestment Period”
shall mean, with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event, the day which is eighteen months after the receipt
of cash proceeds by the Borrower or any Restricted Subsidiary from such Asset Sale Prepayment Event or Recovery Prepayment Event.
“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, advisors,
controlling Persons and other representatives and successors of such Person or such Person’s Affiliates.
“Release”
shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration
into or through the Environment or within, from or into any building, structure, facility or fixture.
“Repayment Amount”
shall mean any Initial Term Loan Repayment Amount, any 2019 Incremental Term Loan Repayment Amount,
an Extended Term Loan Repayment Amount with respect to any Extension Series and the amount of any installment of Incremental Term
Loans scheduled to be repaid on any date.
“Reportable Event”
shall mean an event described in Section 4043(c) of ERISA and the regulations thereunder, other than those events as to which
the 30 day notice period referred to in Section 4043 of ERISA has been waived, with respect to a Pension Plan (other than a Pension
Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) and (o) of Section 414
of the Code).
“Repricing Transaction” shall
mean (a) the Incurrence by the Borrower of any term loans (including, without limitation, any new or additional term loans under
this Agreement, whether Incurred directly or by way of the conversion of Initial2019
Incremental Term Loans into a new Class of replacement term loans under this Agreement) that are broadly syndicated under
credit facilities (i) having an Effective Yield that is less than the Effective Yield for the Initial2019
Incremental Term Loans of the respective equivalent Type, but excluding Indebtedness Incurred in connection with a Qualifying
IPO, Change of Control (or transaction that if consummated would constitute a Change of Control) or Transformative Acquisition and (ii) the
proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding
principal of Initial2019 Incremental Term Loans
or (b) any effective reduction in the Effective Yield for the Initial2019
Incremental Term Loans (e.g., by way of amendment, waiver or otherwise), except for a reduction in connection with a Qualifying
IPO, Change of Control (or transaction that if consummated would constitute a Change of Control) or Transformative Acquisition and, in
the case of any transaction under either clause (a) or clause (b) above, the primary purpose of which is to lower the Effective
Yield on any Initial2019 Incremental Term Loans.
Any determination by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive
and binding on all Lenders holding Initial2019
Incremental Term Loans.
“Required
Lenders” shall mean, at any date and subject to the limitations set forth in Section 13.6(h), Non- Defaulting Lenders
having or holding greater than 50% of the sum of (a) the outstanding principal amount of the Term Loans in the aggregate at
such date, (b)(i) the Adjusted Total Revolving Credit Commitment at such date and the Adjusted Total Extended Revolving Credit
Commitment of all Classes at such date or (ii) if the Total Revolving Credit Commitment (or any Total Extended Revolving Credit
Commitment of any Class) has been terminated or, for the purposes of acceleration pursuant to Section 11, the outstanding
principal amount of the Revolving Credit Loans and Letter of Credit Exposure (excluding the Revolving Credit Exposure of Defaulting
Lenders) in the aggregate at such date and/or the outstanding principal amount of the Extended Revolving Credit Loans and letter of
credit exposure under such Extended Revolving Credit Commitments (excluding any such Extended Revolving Credit Loans and letter of
credit exposure of Defaulting Lenders) at such date and (c)(i) the Adjusted Total Additional/Replacement Revolving Credit
Commitment of each Class of Additional/Replacement Revolving Credit Commitments at such date or (ii) if the Adjusted Total
Additional/Replacement Revolving Credit Commitment of any Class of Additional/Replacement Revolving Credit Commitments has been
terminated or for purposes of acceleration pursuant to Section 11, the outstanding principal amount of the
Additional/Replacement Revolving Credit Loans of such Class and the related revolving credit exposure (excluding the revolving
credit exposure of Defaulting Lenders) in the aggregate at such date.
“Required Reimbursement Date” shall have
the meaning provided in Section 3.4(a).
“Required Revolving
Credit Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding greater than 50% of the Adjusted Total Revolving
Credit Commitment at such date (or, if the Total Revolving Credit Commitment has been terminated at such time, a majority of the outstanding
principal amount of the Revolving Credit Loans and Revolving Credit Exposure (excluding the Revolving Credit Exposure of Defaulting Lenders)
at such time).
“Restoration Certification”
shall mean, with respect to any Recovery Prepayment Event, a certification made by an Authorized Officer of the Borrower or a Restricted
Subsidiary, as applicable, to the Administrative Agent prior to the end of the Reinvestment Period certifying (a) that the Borrower
or such Restricted Subsidiary intends to use the proceeds received in connection with such Recovery Prepayment Event to repair, restore
or replace the property or assets in respect of which such Recovery Prepayment Event occurred, or otherwise invest in assets useful to
the business, (b) the approximate costs of completion of such repair, restoration or replacement and(c) that such repair, restoration,
reinvestment, or replacement will be completed within the later of (x) eighteen months after the date on which cash proceeds with
respect to such Recovery Prepayment Event were received and (y) 180 days after delivery of such Restoration Certification.
“Restricted Investments”
shall mean any Investment other than a Permitted Investment.
“Restricted
Payment Amount” shall mean, at any time, the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries for the Test Period most recently ended (measured as of such date) based upon the Section 9.1
Financials most recently delivered on or prior to such date, minus the sum of (a) the amount utilized by the Borrower or any
Restricted Subsidiary to make Restricted Payments in reliance on Section 10.6(f)(iv), (b) the amount utilized by the Borrower
or any Restricted Subsidiary to Investments in reliance on Section 10.5(vv) (c) the amount utilized by the Borrower or any Restricted
Subsidiary to prepay, repurchase, redeem or otherwise defease or make similar payments in respect of Junior Debt prior to its stated maturity
made by the Borrower or any Restricted Subsidiary in reliance on Section 10.7(a)(iii)(D).
“Restricted Payments”
shall have the meaning provided in Section 10.6.
“Restricted Subsidiary”
shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary. Unless otherwise expressly provided herein, all references
herein to a “Restricted Subsidiary” shall mean a Restricted Subsidiary of the Borrower.
“Retained
Asset Sale Proceeds” shall mean that portion of the Net Cash Proceeds of an Asset Sale Prepayment Event or
Recovery Payment Event not required to be offered to prepay Term Loans pursuant to Section 5.2(a)(i) due to the Disposition
Percentage being less than 100%.
“Retained Refused Proceeds” shall have
the meaning provided in Section 5.2(c)(ii).
“Return”
shall mean, with respect to any Investment, any dividend, distribution, interest, fee, premium, return of capital, repayment of principal,
income, profit (from a Disposition or otherwise) and any other similar amount received or realized in respect thereof.
“Revolving Credit
Borrowing” shall mean a borrowing consisting of Revolving Credit Loans of the same Type and Class and, in the case of Eurodollar
Loans, having the same Interest Period made by each of the Revolving Credit Lenders under such Class pursuant to Section 2.1(b).
“Revolving Credit
Commitment” shall mean, (a) with respect to each Lender that is a Lender on the Closing Date, the amount set forth opposite
such Lender’s name on Schedule 1.1(a) as such Lender’s “Revolving Credit Commitment,” (b) in the case
of any Lender that becomes a Lender after the Closing Date, the amount specified as such Lender’s “Revolving Credit Commitment”
in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment and (c) in
the case of any Lender that increases its Revolving Credit Commitment or becomes an Incremental Revolving Credit Commitment Increase Lender
in respect of the Revolving Credit Facility, in each case pursuant to Section 2.14, the amount specified in the applicable Incremental
Agreement (including Schedule 2 to the Third Incremental Agreement), in each case as the same
may be changed from time to time pursuant to terms hereof. The aggregate amount of Revolving Credit Commitments as of the Closing Date
is $50,000,000. The aggregate amount of Revolving Credit Commitments as of
the Third Incrementl Agreement Effective Date is $60,000,000.
“Revolving Credit
Commitment Percentage” shall mean, at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s
Revolving Credit Commitment by (b) the aggregate amount of the Revolving Credit Commitments of all Revolving Credit Lenders; provided
that, at any time when the Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit Commitment
Percentage shall be its Revolving Credit Commitment Percentage as in effect immediately prior to such termination.
“Revolving Credit
Exposure” shall mean, with respect to any Lender at any time, the sum of (a) the aggregate principal amount of the Revolving
Credit Loans of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at such time and (c) such Lender’s
Swingline Exposure at such time.
“Revolving Credit Extension
Request” shall have the meaning provided in Section 2.15(b).
“Revolving Credit Facility” shall have
the meaning provided in the recitals to this Agreement.
“Revolving Credit
Lender” shall mean, at any time, any Lender that has a Revolving Credit Commitment at such time.
“Revolving Credit Loan” shall have the
meaning provided in Section 2.1(b)(i).
“Revolving Credit
Maturity Date” shall mean the fifth anniversary of the Closing Date, or, if such anniversary is not a Business Day, the Business
Day immediately following such anniversary.
“Revolving Credit
Note” shall mean a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially
the form of Exhibit F-1 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit Lender resulting from
the Revolving Credit Loans made by such Revolving Credit Lender.
“Revolving Credit
Termination Date” shall mean the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit Loans
shall be outstanding and the Letter of Credit Obligations shall have been reduced to zero or Cash Collateralized.
“Rollover Investors” shall have the meaning
provided in the recitals to this Agreement.
“S&P”
shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.
“Sale Leaseback”
shall mean any transaction or series of related transactions pursuant to which the Borrower or any of the Restricted Subsidiaries (a) sells,
transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such
transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes
as the property being sold, transferred or Disposed of.
“Sanctions”
shall mean any U.S. sanctions administered by OFAC or the U.S. Department of State.
“SEC” shall mean the Securities
and Exchange Commission or any successor thereto.
“Second Incremental
Agreement” shall mean that certain Incremental Agreement No. 2, dated as of October 31, 2018 among the Borrower, Holdings,
the other Guarantors, the Lenders party thereto and the Administrative Agent.
“Second Incremental
Agreement Effective Date” shall have the meaning provided in the Second Incremental Agreement.
“Section 9.1
Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or
9.1(b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).
“Secured Cash Management
Agreement” shall mean, at the Borrower’s written election to the Administrative Agent, any agreement relating to Cash
Management Services that is entered into by and between Holdings, the Borrower or any Restricted Subsidiary and a Cash Management Bank.
“Secured Hedging
Agreement” shall mean, at the Borrower’s written election to the Administrative Agent, any Hedging Agreement that is entered
into by and between Holdings, the Borrower or any Restricted Subsidiary and any Hedge Bank. For purposes of the preceding sentence, the
Borrower may deliver one notice designating all Hedging Agreements entered into pursuant to a specified Master Agreement as “Specified
Hedging Agreements”.
“Secured Parties”
shall mean, collectively, (a) the Lenders, (b) the Letter of Credit Issuers, (c) the Swingline Lender, (d) the Administrative
Agent, (e) the Collateral Agent, (f) each Hedge Bank, (g) each Cash Management Bank, (h) the beneficiaries of each
indemnification obligation undertaken by any Credit Party under the Credit Documents and (i) any successors, endorsees, permitted
transferees and permitted assigns of each of the foregoing.
“Securities Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securitization Repurchase
Obligation” shall mean any obligation of a seller (or any guaranty of such obligation) of assets subject to a Receivables Facility
in 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 the seller.
“Security Agreement”
shall mean the Security Agreement, dated as of the Closing Date, among Holdings, the Borrower, the Domestic Subsidiary grantors party
thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B.
“Security Documents”
shall mean, collectively the Security Agreement, the Pledge Agreement, the Mortgages, if any, and each other security agreement or other
instrument or document executed and delivered pursuant to Section 6.2, 9.10, 9.11 or 9.14 and any Customary Intercreditor Agreement
executed and delivered pursuant to Section 10.2 or pursuant to any of the Security Documents.
“Similar Business”
shall mean any business conducted or proposed to be conducted by the Borrower and the Restricted Subsidiaries on the Closing Date or any
business that is similar, reasonably related, incidental or ancillary thereto.
“Software” shall have the meaning provided
in the Security Agreement.
“Sold Entity or Business” shall
have the meaning provided in the definition of the term “Consolidated EBITDA.”
“Solvent” shall mean, at the time of determination:
(a) each
of the Fair Value and the Present Fair Saleable Value of the assets of a Person and its Subsidiaries taken as a whole exceed their Stated
Liabilities and Identified Contingent Liabilities; and
(b) such Person and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and
(c) such
Person and its Subsidiaries taken as a whole can pay their Stated Liabilities and Identified Contingent Liabilities as they mature.
Defined terms used in the foregoing definition
shall have the meanings set forth in the solvency certificate delivered on the Closing Date pursuant to Section 6.8.
“Special Purpose
Subsidiary” shall mean any (a) not-for-profit Subsidiary, (b) captive insurance company or (c) Receivables Subsidiary
and any other Subsidiary formed for a specific bona fide purpose not including substantive business operations and that does not own any
material assets, in each case, that has been designated as a “Special Purpose Subsidiary” by the Borrower.
“Specified Acquisition
Agreement Representations” shall mean the representations and warranties made by, or with respect to, the Target and its subsidiaries
in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Holdings (or its affiliates)
has the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the Acquisition Agreement
or to decline to consummate the Mergers (in accordance with the terms thereof) as a result of a breach of such representations and warranties
in the Acquisition Agreement.
“Specified Debt Incurrence Prepayment Event”
shall have the meaning provided in Section 5.2(a)(i).
“Specified Existing
Revolving Credit Commitment” shall mean any Existing Revolving Credit Commitments belonging to a Specified Existing Revolving
Credit Commitment Class.
“Specified Existing
Revolving Credit Commitment Class” shall have the meaning provided in Section 2.15(b).
“Specified Representations”
shall mean the representations and warranties of the Borrower and the Guarantors set forth in Sections 8.1 (with respect to the organizational
existence only of Holdings and Merger Sub), the first two sentences of Section 8.2, Section 8.3(c) (with respect to the
Incurrence of the Loans on the Closing Date only, the provision of the Guarantees by the Credit Parties on the Closing Date and the granting
of the Liens on the Collateral by the Credit Parties on the Closing Date), Section 8.5, Section 8.7, Section 8.16, Section 8.19(b) (with
respect to the use of the proceeds of the Loans on the Closing Date), Section 8.20(b) (with respect to the use of the proceeds
of the Loans on the Closing Date), Section 8.21, Section 8.23 and Section 3.3 of the Security Agreement (limited to the
Security Documents required to be delivered on the Closing Date and the other requirements set forth in Section 6).
“Specified Restructuring”
means any restructuring initiative, cost saving initiative or other similar strategic initiative of the Borrower or any of its Restricted
Subsidiaries after the Closing Date described in reasonable detail in a certificate of an Authorized Officer delivered by the Borrower
to the Administrative Agent.
“Specified Subsidiary”
shall mean, at any date of determination, any Restricted Subsidiary that would be a “significant subsidiary” as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Closing
Date.
“Specified Transaction”
shall mean, with respect to any period, any Investment (including Acquisitions), sale, transfer or other Disposition of assets or property, Incurrence,
Refinancing, prepayment, redemption, repurchase, defeasance, acquisition, similar payment, extinguishment, retirement or repayment of
Indebtedness, Restricted Payment, Subsidiary designation, provision of Incremental Term Loans, provision of Incremental Revolving Credit
Commitment Increases, provision of Additional/Replacement Revolving Credit Commitments, creation of Extended Term Loans or Extended Revolving
Credit Commitments or other event that by the terms of the Credit 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.
“Sponsor”
shall mean, collectively Hellman & Friedman LLC and/or its Affiliates and any funds, partnerships or other co-investment vehicles
managed, advised or controlled by the foregoing or their respective Affiliates, but excluding any operating portfolio companies of Hellman &
Friedman LLC or any such Affiliate.
“SPV” shall have the meaning provided
in Section 13.6(c).
“Standard
Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Borrower
or any Subsidiary of the Borrower which the 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.
“Stated Amount”
of any Letter of Credit shall mean, unless otherwise specified herein, the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related
thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the maximum stated amount of such Letter of Credit after giving pro forma effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
“Statutory
Reserves” shall have the meaning provided in the definition of the term “Eurodollar Rate.”
“Subordinated Indebtedness” shall mean any third-party Indebtedness for borrowed money (and any Guarantee
Obligation in respect thereof) that is subordinated expressly by its terms in right of payment to the Obligations.
“Subordinated Indebtedness
Documentation” shall mean any document or instrument issued or executed with respect to any Subordinated Indebtedness.
“Subsidiary”
of any Person shall mean and include (a) any corporation more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock
of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through Subsidiaries and (b) any limited liability company, partnership, association,
Joint Venture or other entity in which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at
the time. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.
“Subsidiary Guarantor” shall mean each
Guarantor that is a Subsidiary of the Borrower.
“Successor Benchmark Rate” shall have the meaning provided in Section 2.10(d).
“Successor Borrower” shall have the meaning provided in Section 10.3(a).
“Successor Holdings” shall have the meaning
provided in Section 10.9(b).
“Supported
QFC” shall have the meaning provided in Section 13.23.
“Swap”
shall mean any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47)
of the Commodity Exchange Act.
“Swap Obligation” shall mean any obligation
to pay or perform under any Swap.
“Swap Termination
Value” shall mean, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed
out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the
date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which
may include a Lender or any Affiliate of a Lender).
“Swingline Commitment” shall mean $5,000,000.
“Swingline
Exposure” shall mean, with respect to any Lender, at any time, such Lender’s Revolving Credit Commitment Percentage of
the Swingline Loans outstanding at such time.
“Swingline
Lender” shall mean UBS AG, Stamford Branch, in its capacity as lender of Swingline Loans hereunder, or such other financial
institution that, after the Closing Date, shall agree to act in the capacity of lender of Swingline Loans hereunder. In the event that
there is more than one Swingline Lender at any time, references herein and in the other Credit Documents to the Swingline Lender shall
be deemed to refer to the Swingline Lender in respect of the applicable Swingline Loan or to all Swingline Lenders, as the context requires.
“Swingline Loan” shall
have the meaning provided in Section 2.1(d)(i).
“Swingline
Maturity Date” shall mean, with respect to any Swingline Loan, the date that is three Business Days prior to the Revolving Credit
Maturity Date.
“Target” shall have the meaning provided
in the recitals to this Agreement.
“Taxes” shall have the meaning provided in Section 5.4(a).
“Term Loan” shall mean an Initial
Term Loan, ana 2019 Incremental Term Loan, any other
Incremental Term Loan or any Extended Term Loan, as applicable.
“Term Loan Exchange Notes” shall have
the meaning provided in Section 2.17(a).
“Term Loan Exchange Effective Date” shall
have the meaning provided in Section 2.17(a).
“Term Loan Extension Request” shall have the meaning provided in
Section 2.15(a).
“Term Loan Facility” shall mean
any of the Initial Term Loan Facility, anythe 2019 Incremental
Term Facility, any other Incremental Term Loan Facility and any Extended
Term Loan Facility.
“Term Note”
shall mean a promissory note of the Borrower payable to any Initial Term Loan Lender or its registered assigns, in substantially the form
of Exhibit F-2 hereto, evidencing the aggregate Indebtedness of the Borrower to such Initial Term Loan Lender resulting from the
Initial Term Loans made by such Initial Term Loan Lender.
“Test
Period” shall mean, for any determination under this Agreement, the most recent period of four consecutive fiscal quarters
of the Borrower ended on or prior to such date of determination (taken as one accounting period) in respect of which
Section 9.1 Financials shall have been delivered to the Administrative Agent for each fiscal quarter or fiscal year in such
period; provided that, prior to the first date that Section 9.1 Financials shall have been delivered pursuant to
Section 9.1(a) or (b), the Test Period in effect shall be the period of four consecutive fiscal quarters of the Borrower
ended June 30, 2017. A Test Period may be designated by reference to the last day thereof (i.e. the June 30, 2017 Test
Period refers to the period of four consecutive fiscal quarters of the Borrower ended June 30, 2017), and a Test Period shall
be deemed to end on the last day thereof.
“Third
Incremental Agreement Effective Date” shall have the meaning provided for such term in the Third Incremental Agreement.
“Third
Incremental Agreement” shall mean that certain Incremental Agreement No. 3 to Credit Agreement, dated as of
August 1, 2019, among Holdings, the Borrower, the 2019 Incremental Term Loan Lenders party thereto, the Administrative Agent, and
the other parties thereto.
“Total
2019 Incremental Term Loan Commitment” shall mean the sum of the 2019 Incremental Term Loan Commitments of all Lenders.
“Total Additional/Replacement
Revolving Credit Commitment” shall mean the sum of Additional/Replacement Revolving Credit Commitments of all the Lenders providing
any Class of Additional/Replacement Revolving Credit Commitments.
“Total Commitment”
shall mean the sum of the Total Initial Term Loan Commitment, the Total 2019
Incremental Term Loan Commitment, any other Total Incremental Term Loan Commitment, the Total Revolving
Credit Commitment, the Total Additional/Replacement Revolving Credit Commitment and the Total Extended Revolving Credit Commitment of
each Extension Series.
“Total Credit Exposure”
shall mean, at any date, the sum, without duplication, of the Total Revolving Credit Commitment at such date (or, if the Total Revolving
Credit Commitment shall have terminated on such date, the aggregate Revolving Credit Exposure of all Revolving Credit Lenders at such
date), the Total Additional/Replacement Revolving Credit Commitment at such date (or, if the Total Additional/Replacement Revolving Credit
Commitment shall have been terminated on such date, the aggregate exposure of all Additional/Replacement Revolving Credit Lenders at such
date), the Total Extended Revolving Credit Commitment of each Extension Series at such date (or if the Total Extended Revolving Credit
Commitment of any Extension Series shall have been terminated on such date, the aggregate exposures of all lenders under such series
at such date) and the outstanding principal amount of all Term Loans at such date.
“Total Extended Revolving
Credit Commitment” shall mean the sum of all Extended Revolving Credit Commitments of all Lenders under each Extension Series.
“Total Incremental
Term Loan Commitment” shall mean the sum of the Incremental Term Loan Commitments of any Class of Incremental Term Loans
of all the Lenders providing such Class of Incremental Term Loans.
“Total Initial Term
Loan Commitment” shall mean the sum of the Initial Term Loan Commitments of all the Lenders.
“Total Revolving
Credit Commitment” shall mean, on any date, the sum of the Revolving Credit Commitments on such date of all the Revolving Credit
Lenders.
“Tranche
B Term Lender” shall have the meaning provided for such term in the First Incremental Agreement.
“Tranche
B Term Loan” shall have the meaning provided for such term in the First Incremental Agreement.
“Tranche C Term Lender”
shall have the meaning provided for such term in the Second Incremental Agreement.
“Tranche
C Term Loan” shall have the meaning provided for such term in the Second Incremental Agreement.
“Transaction Expenses”
shall mean any fees or expenses incurred or paid by the Sponsor, Investors, Merger Sub, Merger Sub II, Holdings, the Borrower, any
of their Subsidiaries or any of their Affiliates in connection with the Transactions, this Agreement and the other Credit Documents and
the transactions contemplated hereby and thereby.
“Transactions”
shall mean, collectively, (a) the formation of Holdings, Merger Sub, Merger Sub II and any Parent Entity of Holdings for purposes
of consummating the other transactions contemplated by the Acquisition Agreement, (b) the entry into the Acquisition Agreement, the
Commitment Letter, the Fee Letter and any other Contractual Obligations in connection therewith, (c) the Equity Contribution, including
the rollover consummated by the Rollover Investors, (d) the Mergers and the consummation of the other transactions contemplated by
the Acquisition Agreement, including the payment of the Merger Consideration and the payment of certain Transaction Expenses, (e) the
Existing Debt Refinancing, (f) the entering into of the Agreement, the other Credit Documents, and funding of the Loans on the Closing
Date and the consummation of the other transactions contemplated by this Agreement and the other Credit Documents and (g) the payment
of the Transaction Expenses.
“Transferee” shall have the meaning provided
in Section 13.6(f).
“Transformative Acquisition”
shall mean any acquisition by the Borrower or any Restricted Subsidiary that is either (a) not permitted by the terms of this Agreement
immediately prior to the consummation of such acquisition or (b) if permitted by the terms of this Agreement immediately prior to
the consummation of such acquisition, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility under this
Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by the Borrower
acting in good faith.
“Treasury
Capital Stock” shall have the meaning provided in Section 10.6(a).
“Type” shall mean as to any
Loan, its nature as an ABR Loan or a Eurodollar Loan.
“UCC” shall
mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.
“UCP” shall
mean, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce
(“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“Unfunded Current
Liability” of any Pension Plan shall mean the amount, if any, by which the present value of the accrued benefits under the Pension
Plan exceeds the Fair Market Value of the assets allocable thereto as of the close of its most recent plan year, determined in both cases
using the applicable assumptions promulgated under Section 430 of the Code.
“United States Tax Compliance Certificate”
shall have the meaning provided in Section 5.4(d).
“Unpaid Drawing” shall have the meaning
provided in Section 3.4(a).
“Unrestricted Subsidiary”
shall mean (a) any Subsidiary of the Borrower that is formed or acquired after the Closing Date and is designated as an Unrestricted
Subsidiary by the Borrower pursuant to Section 9.15 subsequent to the Closing Date, (b) any existing Restricted Subsidiary of
the Borrower that is designated as an Unrestricted Subsidiary by the Borrower pursuant to Section 9.15 subsequent to the Closing
Date and (c) any Subsidiary of an Unrestricted Subsidiary.
“U.S. Special Resolution Regimes”
shall have the meaning provided in Section 13.23.
“Voting Stock”
shall mean, with respect to any Person, shares of such Person’s Capital Stock that is at the time generally entitled, without regard
to contingencies, to vote in the election of the Board of Directors of such Person. To the extent that a partnership agreement, limited
liability company agreement or other agreement governing a partnership or limited liability company provides that the members of the Board
of Directors of such partnership or limited liability company (or, in the case of a limited partnership whose business and affairs are
managed or controlled by its general partner, the Board of Directors of the general partner of such limited partnership) is appointed
or designated by one or more Persons rather than by a vote of Voting Stock, each of the Persons who are entitled to appoint or designate
the members of such Board of Directors will be deemed to own a percentage of Voting Stock of such partnership or limited liability company
equal to (a) the aggregate votes entitled to be cast on such Board of Directors by the members of such Board of Directors which such
Person or Persons are entitled to appoint or designate divided by (b) the aggregate number of votes of all members of such Board
of Directors.
“Weighted Average
Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the
sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment (it being understood
that the Weighted Average Life to Maturity shall be determined without giving effect to any change in installment or other required payments
of principal resulting from prepayments following the Incurrence of such Indebtedness); by (b) the then outstanding principal
amount of such Indebtedness.
“Wholly-Owned Subsidiary”
shall mean a Subsidiary of a Person, all of the outstanding Capital Stock of which (other than (x) any director’s qualifying
shares and (y) shares issued to other Persons to the extent required by Applicable Law) are owned by such Person and/or by one or
more wholly-owned Subsidiaries of such Person.
“Withdrawal Liability”
shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Title IV of ERISA.
“Withholding Agent”
shall mean any Credit Party, the Administrative Agent and, in the case of any U.S. federal withholding tax, any other withholding agent,
if applicable.
“Write-Down and Conversion
Power” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers
are described in the EU Bail-In Legislation Schedule.
1.2 Other
Interpretive Provisions. With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in
such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The
words “herein,” “hereto,” “hereof” and “hereunder” and words
of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision
thereof.
(c) The
term “including” is by way of example and not limitation.
(d) Section,
Exhibit and Schedule references are to the Credit Document in which such reference appears.
(e) The
term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or electronic form.
(f) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including”; the words “to” and “until” each mean “to but excluding”;
and the word “through” means “to and including.”
(g) Section headings
herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Credit Document.
(h) Any
reference to any Person shall be constructed to include such Person’s successors or assigns (subject to any restrictions on assignment
set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or
all of the functions thereof.
(i) Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
(j) The word “will” shall be construed to have the same meaning as the word “shall.”
(k) The
words “asset” and “property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(a) All
accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP, applied in a manner consistent with that used in preparing, prior to the Closing Date, the Historical Financial Statements
and, after the Closing Date, the Section 9.1 Financials, except as otherwise specifically prescribed herein; provided, however,
that (i) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate
the effect of any Accounting Change occurring after the Closing Date on the operation of such provision, regardless of whether any such
notice is given before or after such Accounting Change, then such provision shall be interpreted as if such Accounting Change had not
occurred until such notice shall have been withdrawn or such provision amended in accordance herewith and (ii) if the Administrative
Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof to eliminate the effect of any Accounting
Change occurring after the Closing Date on the operation of such provision, regardless of whether any such notice is given before or after
such Accounting Change, then such provision shall be interpreted as if such Accounting Change had not occurred until such notice shall
have been withdrawn or such provision amended in accordance herewith, but only to the extent that, without undue burden or expense, the
Borrower, its auditors and/or its financial systems are capable of interpreting such provisions as if such Accounting Change had not occurred.
(b) Where
reference is made to “the Borrower and its Restricted Subsidiaries, on a consolidated basis” or similar language, such consolidation
shall not include any Subsidiaries of the Borrower other than Restricted Subsidiaries.
(c) Notwithstanding
any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations
of amounts and ratios referred to herein shall be made, without giving effect to any election under the Financial Accounting Standards
Board’s Accounting Standards Codification No. 825—Financial Instruments, or any successor thereto (including pursuant
to the Accounting Standards Codification), to value any Indebtedness of Holdings, the Borrower or any Subsidiary at “fair value”
as defined therein.
(d) For
the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business in respect of which a definitive agreement
for the Disposition thereof has been entered into as discontinued operations, the Net Income of such Person or business shall not be excluded
from the calculation of Net Income until such Disposition shall have been consummated.
1.4 Rounding.
Any financial ratios required to be maintained or complied with by the 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).
1.5 References
to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organizational Documents, agreements
(including the Credit Documents) and other Contractual Obligations shall be deemed to include all subsequent amendments, restatements,
amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements,
amendment and restatements, extensions, supplements and other modifications are permitted by this Agreement; and (b) references to
any Applicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting
such Applicable Law.
1.6 Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard,
as applicable, for times of the day in New York City, New York).
1.7 Timing
of Payment or Performance. Except as otherwise provided herein, when the payment of any obligation or the performance of any covenant,
duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than
as described in Section 2.5 or Section 2.9) or performance shall extend to the immediately succeeding Business Day.
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1.8
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Currency Equivalents Generally.
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(a) For
purposes of any determination under Section 9, Section 10 (other than for purposes of calculating the Consolidated First
Lien Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to
Consolidated EBITDA Ratio or the Consolidated EBITDA to Consolidated Interest Expense Ratio) or Section 11 or any determination
under any other provision of this Agreement requiring the use of a current exchange rate, all amounts Incurred or proposed to be
Incurred in currencies other than Dollars shall be translated into Dollars at the Exchange Rate then in effect on the date of such
determination; provided, however, that (x) for purposes of determining compliance with Section 10 with
respect to the amount of any Indebtedness, Investment, Disposition, Restricted Payment or payment under Section 10.7 in a
currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates
of exchange occurring after the time such Indebtedness or Investment is Incurred or Disposition, Restricted Payment or payment under
Section 10.7 is made, (y) for purposes of determining compliance with any Dollar-denominated restriction on the Incurrence
of Indebtedness, if such Indebtedness is Incurred to Refinance other Indebtedness denominated in a foreign currency, and such
Refinancing would cause the applicable Dollar- denominated restriction to be exceeded if calculated at the relevant currency
Exchange Rate in effect on the date of such Refinancing, such Dollar-denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of the Indebtedness that is Incurred to Refinance such Indebtedness does not exceed the
principal amount (or accreted amount) of such Indebtedness being Refinanced, except by an amount equal to the accrued interest,
dividends and premium (including tender premiums), if any, thereon plus defeasance costs, underwriting discounts and other amounts
paid and fees and expenses (including OID, closing payments, upfront fees and similar fees) incurred in connection with such
Refinancing plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (z) for the
avoidance of doubt, the foregoing provisions of this Section 1.8 shall otherwise apply to such Sections, including with respect
to determining whether any Indebtedness or Investment may be Incurred or Disposition, Restricted Payment or payment under
Section 10.7 may be made at any time under such Sections. For purposes of calculating the Consolidated First Lien Debt to
Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated
EBITDA Ratio and the Consolidated EBITDA to Consolidated Interest Expense Ratio, amounts in currencies other than Dollars
shall be translated into Dollars at the applicable exchange rates used in preparing the most recently delivered financial statements
pursuant to Section 9.1(a) or (b), or, prior to the delivery of such financial statements, the financial statements
delivered pursuant to Section 6.9.
(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 Borrower’s consent (such consent not to be unreasonably withheld) to appropriately reflect a change in currency
of any country and any relevant market conventions or practices relating to such change in currency.
1.9 Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving
Credit Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Credit Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Credit Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Credit Borrowing”).
1.10 Letter
of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar
equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases
in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
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1.11
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Limited Condition Acquisitions.
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(a) In
connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with
any provision of this Agreement that requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred,
is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrower, be deemed satisfied,
so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date on which the definitive acquisition
agreements for such Limited Condition Acquisition are entered. For the avoidance of doubt, if the Borrower has exercised its option under
the first sentence of this clause (a), and any Default, Event of Default or specified Event of Default occurs following the date on which
the definitive acquisition agreements for the applicable Limited Condition Acquisition were entered into and prior to or on the date of
the consummation of such Limited Condition Acquisition, any such Default, Event of Default or specified Event of Default shall be deemed
to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition
Acquisition is permitted hereunder.
(b) In
connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining
compliance with any provision of this Agreement which requires the calculation of the Consolidated First Lien Debt to Consolidated EBITDA
Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated EBITDA Ratio or the Consolidated
EBITDA to Consolidated Interest Expense Ratio; or
(ii) testing
baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA);
in each case, at the option
of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an
“LCA Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to
be the date on which the definitive acquisition agreements for such Limited Condition Acquisition are entered into (the
“LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other
transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof)
as if they had occurred at the beginning of the Test Period most recently ended on or prior to the applicable LCA Test Date, the
Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket
shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCA Election and any of the
ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in
any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited
Condition Acquisition, on or prior to the date of consummation of the relevant transaction or action, such baskets or ratios will
not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCA Election for any Limited
Condition Acquisition, then in connection with any subsequent calculation of any ratio or test with respect to the Incurrence of
Indebtedness or Liens, or the making of distributions or Restricted Payments, Investments, payments pursuant to
Section 10.7, Dispositions, mergers, Dispositions of all or substantially all of the assets of the Borrower or the designation
of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited
Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires
without consummation of such Limited Condition Acquisition, any such ratio or test shall be calculated on a pro forma basis assuming
such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the
use of proceeds thereof) have been consummated.
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1.12
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Pro Forma and Other Calculations.
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(a) Notwithstanding
anything to the contrary herein, financial ratios and tests (including measurements of Consolidated EBITDA), including the Consolidated
EBITDA to Consolidated Interest Expense Ratio, Consolidated First Lien Debt to Consolidated EBITDA Ratio, Consolidated Secured Debt to
Consolidated EBITDA Ratio and Consolidated Total Debt to Consolidated EBITDA Ratio shall be calculated in the manner prescribed by this
Section 1.12; provided that, notwithstanding anything to the contrary in clauses (b), (c), (d) or (e) of this Section 1.12,
when calculating the Consolidated First Lien Debt to Consolidated EBITDA Ratio for purposes of (i) the definition of “Applicable
Margin,” and (ii) Sections 5.2(a)(i) and 5.2(a)(ii), the events described in this Section 1.12 that occurred subsequent
to the end of the applicable Test Period shall not be given pro forma effect; provided, however, that for purposes of any
determination under the proviso to Section 5.2(a)(ii), Consolidated First Lien Debt shall be determined after giving pro forma effect
to any voluntary prepayments of Term Loans made pursuant to Section 5.1 after the end of the Borrower’s most recently ended
full fiscal year and prior to the date of the applicable payment to be made pursuant to such Section 5.2(a)(ii) assuming such
voluntary prepayments had been made on the last day of such fiscal year. In addition, whenever a financial ratio or test is to be calculated
on a pro forma basis or requires pro forma compliance, the reference to “Test Period” for purposes of calculating such financial
ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which Section 9.1
Financials have been delivered.
(b) For
purposes of calculating any financial ratio or test (including Consolidated Total Assets or Consolidated EBITDA), Specified Transactions
(with any Incurrence or Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.12)
that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously
with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified
Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to
any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total Assets or
“unrestricted” cash and Cash Equivalents, on the last day of the applicable Test Period). If, since the beginning of any applicable
Test Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower
or any Restricted Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required
adjustment pursuant to this Section 1.12, then such financial ratio or test (including Consolidated Total Assets and Consolidated
EBITDA) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12.
(c) Whenever
pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction or a Specified Restructuring,
the pro forma calculations shall be made in good faith by an Authorized Officer of the Borrower and may include, for the avoidance
of doubt, the amount of “run rate” cost savings, operating expense reductions and cost synergies and other synergies
projected by the Borrower in good faith to result from or relating to any Specified Transaction (including the Transactions) or
Specified Restructuring that is being given pro forma effect or for which a determination of pro forma compliance is being made that
have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating
expense reductions, cost synergies or other synergies have been taken, have been committed to be taken, with respect to which
substantial steps have been taken or which are expected to be taken (in the good faith determination of the Borrower) (calculated on
a pro forma basis as though such cost savings, operating expense reductions, cost synergies and other synergies had been realized on
the first day of such period and as if such cost savings, operating expense reductions, cost synergies and other synergies were
realized during the entirety of such period and “run rate” means the full recurring benefit for a period that is
associated with any action taken, any action committed to be taken, any action with respect to which substantial steps have been
taken or any action that is expected to be taken (including any savings expected to result from the elimination of Public Company
Costs, if any) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be
included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the
effects thereof are expected to be realized) relating to such Specified Transaction or Specified Transaction, and any such
adjustments included in the initial pro forma calculations shall continue to apply to subsequent calculations of such financial
ratios or tests, including during any subsequent test periods in which the effects thereof are expected to be realizable; provided that
(x) (A) such amounts are reasonably
identifiable in the good faith judgment of the Borrower, (B) such actions are taken, such actions are committed to be taken,
substantial steps with respect to such action have been taken or such actions are expected to be taken no later than eight fiscal
quarters after the date of consummation of such Specified Transaction or the date of initiation of such Specified Restructuring (or,
with respect to the Transactions, eight fiscal quarters) and (C) no amounts shall be added to the extent duplicative of any
amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro
forma adjustment or otherwise, with respect to such period. and
(y) following the Third Incremental Agreement Effective Date, solely with respect to transactions and adjustments related to
restructuring initiatives, cost savings initiatives and other initiatives not contemplated on or prior to the Third Incremental
Agreement Effective Date (and other than, for the avoidance of doubt,
with respect to the Transactions, the 2019 Transactions, and other adjustments that may arise from mergers, business combinations, Acquisitions and
similar Investments, Dispositions and other similar transactions), the aggregate amount of adjustments included in Consolidated
EBITDA for any Test Period pursuant to this clause (c) clause and pursuant to clause (a)(viii)(B) of the definition of
“Consolidated EBITDA” shall not exceed 30% of Consolidated EBITDA in the aggregate for such Test Period (with such
calculation being made after giving pro forma effect to any adjustments made
pursuant to this clause (c) and pursuant to clause (a)(viii)(B) of the definition of “Consolidated EBITDA”).
(d) In
the event that the Borrower or any Restricted Subsidiary Incurs (including by assumption or guarantee) or Refinances (including by redemption,
repurchase, repayment, retirement or extinguishment) any Indebtedness, in each case included in the calculations of any financial ratio
or test, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously
with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma
effect to such Incurrence or Refinancing of Indebtedness (including pro forma effect to the application of the net proceeds therefrom),
in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of
the Consolidated EBITDA to Consolidated Interest Expense Ratio (or similar ratio), in which case such Incurrence or Refinancing of Indebtedness
will be given effect, as if the same had occurred on the first day of the applicable Test Period); provided that, with respect
to any Incurrence of Indebtedness permitted by the provisions of this Agreement in reliance on the pro forma calculation of the Consolidated
First Lien Debt to Consolidated EBITDA Ratio, the Consolidated Secured Debt to Consolidated EBITDA Ratio, the Consolidated EBITDA to Consolidated
Interest Expense Ratio and/or the Consolidated Total Debt to Consolidated EBITDA Ratio, as applicable, pro forma effect shall not be given
to any Indebtedness being Incurred (or expected to be Incurred) substantially simultaneously or contemporaneously with the Incurrence
of any such Indebtedness in reliance on any “basket” set forth in this Agreement (including the Incremental Base Amount, any
“baskets” measured as a percentage of Consolidated EBITDA) including any Credit Event under the Revolving Credit Facility
or, except to the extent expressly required to be calculated otherwise in Section 2.14 or Section 10.1(u), any Additional/Replacement
Revolving Credit Facility.
(e) Whenever
pro forma effect is to be given to a pro forma event, the pro forma calculations shall be made in good faith by an Authorized
Officer of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on
such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the
Consolidated EBITDA to Consolidated Interest Expense Ratio is made had been the applicable rate for the entire period (taking
into account any interest Hedging Agreements applicable to such Indebtedness). To the extent interest expense generated by Hedging
Obligations that have been terminated is included in Consolidated Interest Expense prior to the date of the event for which the
calculation of the Consolidated EBITDA to Consolidated Interest Expense Ratio is being made, Consolidated Interest Expense shall be
adjusted to exclude such expense. Interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by an Authorized Officer of the Borrower to be the rate of interest implicit in such Financing Lease Obligation in
accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually
chosen, or if none, then based upon such optional rate chosen as the Borrower or applicable Restricted Subsidiary may designate. For
purposes of making the computations referred to above, interest on any Indebtedness under a revolving credit facility computed on a
pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period or, if
lower, the maximum commitments under such revolving credit facility as of the date of the event for which the calculation of the
Consolidated EBITDA to Consolidated Interest Expense Ratio is being made, except as set forth in Section 1.12(d).
(f) Any
such pro forma calculation may include, without limitation, (1) all adjustments of the type described in clause (a)(viii) of
the definition of “Consolidated EBITDA” to the extent such adjustments, without duplication, continue to be applicable to
such Test Period, and (2) adjustments calculated in accordance with Regulation S-X under the Securities Act.
SECTION 2. Amount
and Terms of Credit Facilities.
(a) Subject
to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make (or
in the case of any Rollover Lender (as defined in the First Incremental Agreement) on the First Incremental Agreement Effective Date,
be deemed to make) (or in the case of any Rollover Lender (as defined in the Second Incremental Agreement) on the Second Incremental Agreement
Effective Date, be deemed to make) a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term
Loans (iA) shall not exceed, for
any such Lender, the Initial Term Loan Commitment of such Lender, (iiB)
shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iiiC)
shall be made (x) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (a) of
the definition of Initial Term Loan Commitments, on the Closing Date, (y) in the case of Initial Term Loans made in respect of Initial
Term Loan Commitments described in clause (b) of the definition of Initial Term Loan Commitments, on the First Incremental Agreement
Effective Date, and (z) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (c) of
the definition of Initial Term Loan Commitments, on the Second Incremental Agreement Effective Date, (ivD)
shall be denominated in Dollars, (vE) may, at
the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that
all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist
entirely of Initial Term Loans of the same Type and (viF)
may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term
Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(ii) Subject to and upon terms and conditions set
forth in the Third Incremental Agreement, each Lender having a 2019 Incremental Term Loan Commitment severally agrees to make a loan or
loans (each a “2019 Incremental Term Loan”) to the Borrower, which 2019 Incremental Term Loans (A) shall not exceed,
for any such Lender, the 2019 Incremental Term Loan Commitment of such Lender, (B) shall not exceed, in the aggregate the Total 2019
Incremental Term Loan Commitment, (C) shall be made on the Third Incremental Agreement Effective Date, (D) shall be denominated
in Dollars, (E) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar
Loans; provided that all such 2019 Incremental Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise
provided herein, consist entirely of 2019 Incremental Term Loans of the same Type and (F) may be repaid or prepaid in accordance
with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the 2019 Incremental Term Loan Maturity Date, all outstanding
2019 Incremental Term Loans shall be repaid in full.
(b) (i) Subject
to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a
“Revolving Credit Loan”) to the Borrower in U.S. Dollars, which Revolving Credit Loans (A) shall not exceed, for
any such Lender, the Revolving Credit Commitment of such Lender, (B) shall not, after giving pro forma effect thereto and to the
application of the proceeds thereof, result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s
Revolving Credit Commitment at such time, (C) shall not, after giving pro forma effect thereto and to the application of the proceeds
thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit
Commitment then in effect, (D) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving
Credit Maturity Date (provided that notwithstanding the foregoing, the aggregate amount of all Revolving Credit Loans made on the
Closing Date shall not exceed the Initial Revolving Borrowing Amount), (E) may at the option of the Borrower be Incurred and maintained
as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders
pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the
same Type and (F) may be repaid and reborrowed in accordance with the provisions hereof.
(ii)
On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full
and the Revolving Credit Commitments shall terminate.
(c) Each
Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Eurodollar
Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Eurodollar
Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower
resulting therefrom (which obligation of the 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 determines would be otherwise disadvantageous to it
and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10
shall apply).
(d) (i) Subject
to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from
time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a
“Swingline Loan”) to the Borrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans,
(B) shall have the benefit of the provisions of Section 2.1(d)(ii), (C) shall not exceed at any time outstanding the
Swingline Commitment, (D) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof,
result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit
Commitment then in effect, (E) may be repaid and reborrowed in accordance with the provisions hereof and (F) shall mature
no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding
Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice
from either the Borrower or the Administrative Agent stating that a Default or an Event of Default exists and is continuing until
such time as the Swingline Lender shall have received written notice (x) of rescission of all such notices from the party or
parties originally delivering such notice, (y) of the waiver of such Default or Event of Default in accordance with the
provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer
continuing.
(ii) On
any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the
Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case
Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the
same Business Day by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage,
and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding
Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon same Business
Days’ notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on
the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may
not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing,
(iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such
Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any
reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any Debtor
Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the
Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause
each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided
that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the
respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender
purchasing the same from and after such date of purchase.
(iii) The
Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Lenders
that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender
hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent
and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective
date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this
Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit
Lender in its capacity as a lender of Swingline Loans hereunder.
(iv) The
Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice
thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier
of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date
of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such
Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline
Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to
Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
2.2 Minimum
Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing of Term Loans or Revolving
Credit Loans shall be in a multiple of $500,000 (or, in the case of a Borrowing of Revolving Credit Loans on the Closing Date, $100,000),
and Swingline Loans shall be in a multiple of $100,000, and, in each case, shall not be less than the Minimum Borrowing Amount with respect
for such Type of Loans (except that that Mandatory Borrowings shall be made in the amounts required by Section 2.1(d) and Revolving
Credit Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts required by Section 3.3
or Section 3.4, as applicable). More than one Borrowing may be Incurred on any date; provided that at no time shall there
be outstanding more than twelve (12) Eurodollar Borrowings under this Agreement (which number of Eurodollar Borrowings may be increased
or adjusted by agreement between the Borrower and the Administrative Agent in connection with any Incremental Facility or Extended Loans/Commitments).
For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall
be considered separate Borrowings.
(a) The
Borrower shall give the Administrative Agent at the Administrative Agent’s Office (i) prior to 1:00 p.m. (New York
City time) at least three Business Days’ prior written notice of the Borrowing of Initial Term Loans,
the Borrowing of 2019 Incremental Term Loans or any Borrowing of Incremental Term Loans
(unless otherwise set forth in the applicable Incremental Agreement), as the case may be, if all or any of such Term Loans are to be
initially Eurodollar Loans and (ii) written notice prior to 12:00 p.m. (New York City time) on the date of the Borrowing
of Initial Term Loans, the Borrowing of 2019 Incremental Term Loans or
any Borrowing of Incremental Term Loans, as the case may be, if all or any of such Term Loans are to be ABR Loans. Such notice
(together with each notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(b) and each notice of a
Borrowing of Swingline Loans pursuant to Section 2.3(c), a “Notice of Borrowing”) shall be in substantially
the form of Exhibit D and shall specify (i) the aggregate principal amount of the Initial Term Loans or,
the 2019 Incremental Term Loans or any other Incremental
Term Loans, as the case may be, to be made, (ii) the date of the Borrowing (which shall be, (wv)
in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (a) of the definition of
Initial Term Loan Commitments, the Closing Date, (xw)
in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (b) of the definition of
Initial Term Loan Commitments, the First Incremental Agreement Effective Date, (yx)
in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (c) of the definition of
Initial Term Loan Commitments, the Second Incremental Agreement Effective Date, (y) in the
case of the 2019 Incremental Term Loans, the Third Incremental
Agreement Effective Date, and, (z) in the case of Incremental Term Loans, the applicable Incremental Facility Closing Date in
respect of such Class) and (iii) whether the Initial Term Loans or,
the 2019 Incremental Term Loans or other Incremental Term Loans, as the case may be, shall
consist of ABR Loans and/or Eurodollar Loans and, if the Initial Term Loans, the 2019
Incremental Term Loans or Incremental Term Loans, as the case may be, are to include
Eurodollar Loans, the Interest Period to be initially applicable thereto; provided that the Notice of Borrowing for a
Borrowing of Term Loans shall be revocable so long as the Borrower agrees to comply with the applicable provisions of
Section 2.11 upon any such revocation. The Administrative Agent shall promptly give each Lender written notice of each proposed
Borrowing of Initial Term Loans or, 2019
Incremental Term Loans or other Incremental Term Loans, as the case may be, of such
Lender’s proportionate share thereof and of the other matters covered by the related Notice of Borrowing.
(b) Whenever
the Borrower desires to Incur Revolving Credit Loans hereunder (other than Mandatory Borrowing or borrowings to repay Unpaid Drawings
under Letters of Credit), it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to 1:00 p.m. (New
York City time) at least three Business Days’ prior written notice of each Borrowing of Revolving Credit Loans that are to be initially
Eurodollar Loans and (ii) prior to 1:00 p.m. (New York City time) on the date of such Borrowing prior written notice of each
Borrowing of Revolving Credit Loans that are to be ABR Loans. Each such Notice of Borrowing, except as otherwise expressly provided in
Section 2.10, shall be irrevocable and shall specify (i) the aggregate principal amount of the Revolving Credit Loans to be
made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective
Borrowing shall consist of ABR Loans and/or Eurodollar Loans, and, if Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall promptly give each Lender written notice of each proposed Borrowing of Revolving Credit Loans,
of such Lender’s proportionate share thereof and of the other matters covered by the related Notice of Borrowing.
(c) Whenever
the Borrower desires to Incur Swingline Loans hereunder, the Borrower shall give the Administrative Agent written notice of each Borrowing
of Swingline Loans prior to 3:00 p.m. (New York City time) or such later time as agreed by the Swingline Lender on the date of such
Borrowing. Each such Notice of Borrowing shall specify (i) the aggregate principal amount of the Swingline Loans to be made pursuant
to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day). The Administrative Agent shall promptly give the
Swingline Lender written notice of each proposed Borrowing of Swingline Loans and of the other matters covered by the related Notice of
Borrowing.
(d) Mandatory
Borrowings shall be made upon the notice specified in Section 2.1(d)(ii) with the Borrower irrevocably agreeing, by its Incurrence
of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings
of Revolving Credit Loans to reimburse Unpaid Drawings under Letters of Credit shall be made upon the terms set forth in Section 3.3
or Section 3.4(a).
(f) If
the Borrower fails to specify a Type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as Eurodollar Loans with
an Interest Period of one (1) month. If the Borrower requests a Borrowing of Eurodollar Loans, in any such Notice of Borrowing, but
fails to specify an Interest Period (or fails to give a timely notice requesting a continuation of Eurodollar Loans), it will be deemed
to have specified an Interest Period of one (1) month.
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2.4
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Disbursement of Funds.
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(a) No
later than the later of 12:00 p.m. (New York City time) on the date specified in each Notice of Borrowing (including Mandatory Borrowings
and Borrowings to reimburse Unpaid Drawings under Letters of Credit) and two hours after written notice of such Borrowing is delivered
by the Administrative Agent to such Lender, each Lender will make available its pro rata portion, if any, of each Borrowing requested
to be made on such date in the manner provided below; provided that on the Closing Date (or, with respect to any Incremental Facilities,
on the relevant Incremental Facilities Closing Date), such funds may be made available at such earlier time as may be agreed among the
relevant Lenders, the Borrower and the Administrative Agent for the purpose of consummating the Transactions; provided, further,
that all Swingline Loans shall be made available to the Borrower in the full amount thereof by the Swingline Lender no later than two
hours after written notice of such Borrowing is delivered by the Administrative Agent to the Swingline Lender.
(b) (i) Each
Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments in immediately
available funds to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except in the
case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings under Letters of Credit) make available to the Borrower by depositing
to an account designated by the Borrower to the Administrative Agent in writing, the aggregate of the amounts so made available in Dollars.
Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not
intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower
a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available same to the Borrower, the Administrative Agent shall be entitled to recover such corresponding
amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount
to the Administrative Agent in Dollars. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower, as
the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (i) if paid by such Lender, the Federal Funds Effective Rate, or (ii) if paid by the Borrower, the then-
applicable rate of interest, calculated in accordance with Section 2.8, for the respective Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing
to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.
(ii) The
Swingline Lender shall make available all amounts it is to fund to the Borrower under any Borrowing of Swingline Loans in immediately
available funds to the Borrower (as specified in the applicable Notice of Borrowing), by depositing to an account designated by the Borrower
to the Swingline Lender in writing or otherwise in such Notice of Borrowing, the aggregate of the amount so made available.
(c) Nothing
in this Section 2.4, including any payment by the Borrower, shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such
Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its
commitments hereunder).
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2.5
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Repayment of Loans; Evidence of Debt.
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(a) The
Borrower agrees to repay to the Administrative Agent, for the benefit of the applicable Lenders, (i) on the Initial Term Loan
Maturity Date, all then outstanding Initial Term Loans, (ii) on the relevant2019
Incremental Term Loan Maturity Date, all then outstanding 2019 Incremental Term Loans, (iii) on the relevant Incremental
Term Loan Maturity Date for any Class of Incremental Term Loans, any then outstanding Incremental Term Loans of such Class,
(iiiiv)
on the Revolving Credit Maturity Date, the then outstanding Revolving Credit Loans, (ivv)
on the relevant maturity date for any Class of Additional/Replacement Revolving Credit Commitments, all then outstanding
Additional/Replacement Revolving Credit Loans of such Class, (vvi)
on the relevant maturity date for any Class of Extended Term Loans, all then outstanding Extended Term Loans of such Class,
(vivii)
on the relevant maturity date for any Class of Extended Revolving Credit Commitments, all then outstanding Extended Revolving
Credit Loans of such Class and (viiviii)
on the Swingline Maturity Date, the then outstanding Swingline Loans.
(b) (i) The
Borrower shall repay to the Administrative Agent, in Dollars, for the ratable benefit of the Initial Term Loan Lenders, on (y) the
last Business Day of each March, June, September and December, beginning December 31, 2018 (each, an “Initial Term
Loan Repayment Date”), a principal amount of the Initial Term Loans equal to (i) the
product of (xA)
the aggregate principal amount of Initial Term Loans outstanding immediately after the Borrowing of Tranche C Term Loans on the Second
Incremental Agreement Effective Date multiplied by (yB)
0.25% (with respect to each Initial Term Loan Repayment Date prior to the Initial Term Loan Maturity Date, as such product may be reduced
by, and after giving pro forma effect to, any voluntary and mandatory prepayments made in accordance with Section 5 or as contemplated
by Section 2.15) orand
(iiz)
on the
Initial Term Loan Maturity Date,
the aggregate principal amount of Initial Term Loans then outstanding (with
respect to the Initial Term Loan Maturity Date) (each
amount, an “Initial Term Loan Repayment Amount”).
(ii) The Borrower shall repay to the Administrative
Agent, in Dollars, for the ratable benefit of the 2019 Incremental Term Loan Lenders, on (y) the last Business Day of each March,
June, September and December, beginning December 31, 2019 (each, a “2019 Incremental Term Loan Repayment Date”),
a principal amount of the 2019 Incremental Term Loans equal to the product of (A) the aggregate principal amount of 2019 Incremental
Term Loans outstanding immediately after the Borrowing of 2019 Incremental Term Loans on the Third Amendment Effective Date multiplied
by (B) 0.25% (with respect to each 2019 Incremental Loan Repayment Date prior to the 2019 Incremental Term Loan Maturity Date, as
such product may be reduced by, and after giving pro forma effect to, any voluntary and mandatory prepayments made in accordance with
Section 5 or as contemplated by Section 2.15) and (z) on the 2019 Incremental Term Loan Maturity Date, the aggregate principal
amount of all 2019 Incremental Term Loans then outstanding (each amount, an “2019 Incremental Term Loan Repayment Amount”).
(c) In
the event any Incremental Term Loans are made, such Incremental Term Loans shall mature and be repaid in amounts and on dates as agreed
between the Borrower and the relevant Lenders of such Incremental Term Loans in the applicable Incremental Agreement, subject to the requirements
set forth in Section 2.14. In the event that any Extended Term Loans are established, such Extended Term Loans shall, subject to
the requirements of Section 2.15, mature and be repaid by the Borrower in the amounts (each such amount, an “Extended Term
Loan Repayment Amount”) and on the dates (each an “Extended Repayment Date”) set forth in the applicable
Extension Agreement. In the event any Extended Revolving Credit Commitments are established, such Extended Revolving Credit Commitments
shall, subject to the requirements of Section 2.15, be terminated (and all Extended Revolving Credit Loans of the same Extension
Series repaid) on dates set forth in the applicable Extension Agreement.
(d) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such lending office of such Lender from time to time, including
the amounts of principal and interest payable and paid to such lending office of such Lender from time to time under this Agreement.
(e) The
Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 13.6(b)(v), and a subaccount
for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made
hereunder, whether such Loan is an Initial Term Loan, ana
2019 Incremental Term Loan, any Incremental
Term Loan (and the relevant Class thereof), a Revolving Credit Loan, an Additional/Replacement Revolving Credit Loan (and the
relevant Class thereof), an Extended Term Loan (and the relevant Class thereof), an Extended Revolving Credit Loan (and
the relevant Class thereof), or a Swingline Loan, as applicable, the Type of each Loan made 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 Borrower
to each Lender or the Swingline Lender hereunder, (iii) the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender’s share thereof and (iv) any cancellation or retirement of Loans contemplated by
Section 13.6(i).
(f) The
entries made in the Register and accounts and subaccounts maintained pursuant to paragraphs(d) and
(e) of this Section 2.5 shall, to the extent permitted by Applicable Law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded and, in the case of the Register, shall be conclusive absent manifest
error; provided, however, that the failure of any Lender or the Administrative Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to
repay (with applicable interest) the Loans made to the Borrower in accordance with the terms of this Agreement.
(g) For
the avoidance of doubt, all Loans shall be repaid, whether pursuant to this Section 2.5 or otherwise, in Dollars.
(h) For
the avoidance of doubt, the Tranche C Term Loans made on the Second Incremental Agreement Effective Date (x) shall constitute the
Initial Term Loans for all purposes of this Agreement, (y) shall mature and shall become due and payable on the Initial Term Loan
Maturity Date and (z) shall be repaid in quarterly installments in accordance with Section 2.5(b).
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2.6
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Conversions and Continuations.
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(a) The
Borrower shall have the option on any Business Day, subject to Section 2.11, to convert all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Term Loans, Revolving Credit Loans, Additional/Replacement Revolving Credit Loans
or Extended Revolving Credit Loans of one Type into a Borrowing or Borrowings of another Type and except as otherwise provided herein
the Borrower shall have the option on the last day of an Interest Period to continue the outstanding principal amount of any Eurodollar
Loans as Eurodollar Loans for an additional Interest Period; provided that (i) no partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount,
(ii) ABR Loans may not be converted into Eurodollar Loans if an Event of Default is in existence on the date of the conversion and
the Administrative Agent has, or the Required Lenders have, determined in its or their sole discretion not to permit such conversion,
(iii) Eurodollar Loans may not be continued as Eurodollar Loans for an additional Interest Period if an Event of Default is in existence
on the date of the proposed continuation and the Administrative Agent has, or the Required Lenders have, determined in its or their sole
discretion not to permit such continuation, and (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall
be limited in number as provided in Section 2.2. Each such conversion or continuation shall be effected by the Borrower giving the
Administrative Agent at the Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Business
Days’, in the case of a continuation of, or conversion to, Eurodollar Loans or (ii) the same Business Day in the case of a
conversion into ABR Loans), prior written notice (each a “Notice of Conversion or Continuation”) specifying the Loans
to be so converted or continued, the Type of Loans to be converted or continued, the requested date of the conversion or continuation,
as the case may be (which shall be a Business Day), the principal amount of Loans to be converted or continued, as the case may be, and
if such Loans are to be converted into or continued as Eurodollar Loans, the Interest Period to be initially applicable thereto. If the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made or continued as
the same Type of Loan, which if a Eurodollar Loan, shall have a one-month Interest Period. Any such automatic continuation shall be effective
as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Loans. If the Borrower requests a conversion
to, or continuation of, Eurodollar Loans in any such Notice of Conversion or Continuation, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one (1) month’s duration. Notwithstanding anything to the contrary herein,
a Swingline Loan may not be converted to a Eurodollar Loan. The Administrative Agent shall give each applicable Lender notice as promptly
as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b) If
any Event of Default is in existence at the time of any proposed continuation of any Eurodollar Loans and the Administrative Agent
has, or the Required Lenders have, determined in its or their sole discretion not to permit such continuation, Eurodollar Loans
shall be automatically converted on the last day of the current Interest Period into ABR Loans.
2.7 Pro
Rata Borrowings. Each Borrowing of Initial Term Loans under this Agreement shall be granted by the Lenders pro rata on
the basis of their then-applicable Initial Term Loan Commitments. Each Borrowing of 2019
Incremental Term Loans under this Agreement shall be granted by the Lenders prorata on the basis of their then-applicable 2019
Incremental Term Loan Commitments. Each Borrowing of Revolving Credit Loans under this Agreement shall be granted by the
Revolving Credit Lenders pro rata on the basis of their then- applicable Revolving Credit Commitment Percentages with respect
to the applicable Class. Each Borrowing of Incremental Term Loans under this Agreement shall be granted by the Lenders of the
relevant Class thereof pro rata on the basis of their then-applicable Incremental Term Loan Commitments for the
applicable Class. Each Borrowing of Additional/Replacement Revolving Credit Loans under this Agreement shall be granted by the
Lenders of the relevant Class thereof pro rata on the basis of their then-applicable Additional/Replacement Revolving
Credit Commitments for the applicable Class. Each Borrowing of Extended Revolving Credit Loans under this Agreement shall be granted
by the Lenders of the relevant Class thereof pro rata on the basis of their then-applicable Extended Revolving Credit
Commitments for the applicable Class. It is understood that (a) no Lender shall be responsible for any default by any other
Lender in its obligation to make Loans hereunder and that each Lender, severally and not jointly, shall be obligated to make the
Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder, and
(b) other than as expressly provided herein with respect to a Defaulting Lender, failure by a Lender to perform any of its
obligations under any of the Credit Documents shall not release any Person from performance of its obligations under any Credit
Document.
(a) The
unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration
or otherwise) at a rate per annum that shall at all times be the Applicable Margin in effect from time to time plus the ABR in
effect from time to time.
(b) The
unpaid principal amount of each Eurodollar Loan shall bear interest from the date of the Borrowing thereof until maturity thereof (whether
by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin in effect from time to time plus
the relevant Eurodollar Rate in effect from time to time.
(c) If
at any time after the occurrence of and during the continuance of an Event of Default under Section 11.1 or Section 11.5, all
or a portion of the principal amount of any Loan or any interest payable thereon or any fees or other amounts due hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest (including post-petition
interest in any proceeding under any applicable Debtor Relief Law) at a rate per annum that is (i) in the case of overdue principal,
the rate that would otherwise be applicable thereto plus 2% or (ii) in the case of overdue interest, fees or other amounts
due hereunder, to the extent permitted by Applicable Law, the rate described in Section 2.8(a) plus 2% from and including
the date of such non-payment to but excluding the date on which such amount is paid in full. All such interest shall be payable on demand.
(d) Interest
on each Loan shall accrue from and including the date of any Borrowing to but excluding the date of any repayment thereof, and shall be
payable in Dollars and, except as otherwise provided below, shall be payable (i) in respect of each ABR Loan, quarterly in arrears
on the last Business Day of each March, June, September and December, (ii) in respect of each Eurodollar Loan, on the last day
of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at
three-month intervals after the first day of such Interest Period, and (iii) in respect of each Loan (except in the case of prepayments
of any ABR Revolving Credit Loans that are not made in connection with the termination or permanent reduction of the Revolving Credit
Commitments), on any prepayment date (on the amount prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity,
on demand; provided that a Loan that is repaid on the same day on which it is made shall bear interest for one day.
(e) All computations of interest hereunder shall be made in accordance with Section 5.5.
(f) The
Administrative Agent, upon determining the interest rate for any Borrowing of Eurodollar Loans shall promptly notify the Borrower and
the relevant Lenders thereof. Each such determination shall, absent clearly demonstrable error, be final and conclusive and binding on
all parties hereto.
(g) Except
as otherwise provided herein, whenever any payment hereunder or under the other Credit Documents shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment or letter of credit fee or commission, as the case may be.
2.9 Interest
Periods. At the time the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect of the making of,
or conversion into, or continuation as, a Borrowing of Eurodollar Loans (in the case of the initial Interest Period applicable thereto)
on or prior to 1:00 p.m. (New York City time) on the third Business Day prior to the expiration of an Interest Period applicable
to a Borrowing of Eurodollar Loans, the Borrower shall have the right to elect, by giving the Administrative Agent written notice, the
Interest Period applicable to such Borrowing, which Interest Period shall be the period commencing on the date of such Borrowing and ending
on the numerically corresponding day (or, if there is no numerically corresponding day, on the last Business Day) in the calendar month
that is one, two, three or six months thereafter (or, if agreed to by all relevant Lenders participating in the relevant Credit Facility,
twelve months thereafter or a period shorter than one month).
Notwithstanding anything to the contrary contained above:
(a) the
initial Interest Period for any Borrowing of Eurodollar Loans shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of ABR Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(b) 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;
(c) if
any Interest Period relating to a Borrowing of Eurodollar Loans begins on the last Business Day of a calendar month or begins on a day
for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of the calendar month at the end of such Interest Period;
(d) in
the case of Eurodollar Loans, interest shall accrue from and including the first day of an Interest Period to but excluding the last day
of such Interest Period; and
(e) the
Borrower shall not be entitled to elect any Interest Period in respect of any Eurodollar Loan if such Interest Period would extend beyond
the applicable Maturity Date of such Loan.
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2.10
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Increased Costs, Illegality, Etc.
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(a) In
the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and
(iii) below, any Lender, shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final
and conclusive and binding upon all parties hereto):
(i) on
any date for determining the Eurodollar Rate for any Interest Period that (x) deposits in the principal amounts of the Loans
comprising any Borrowing of Eurodollar Loans are not generally available in the relevant market or (y) by reason of any changes
arising on or after the Closing Date affecting the London interbank eurocurrency market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) that,
due to a Change in Law, which shall (A) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender
(except any reserve requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any Tax
(other than (1) Taxes indemnifiable under Section 5.4, (2) Excluded Taxes or (3) Taxes described in
Section 5.4(f)) on its loans, loan principal, letters of credits, commitments or other obligations, or its deposits, reserves,
other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank eurocurrency market any
other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender (other than Taxes), which results
in the cost to such Lender of making, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of
Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or
receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at
any time after the Closing Date, that the making or continuance of any Eurodollar Loan has become unlawful by compliance by such Lender
in good faith with any Applicable Law (or would conflict with any such Applicable Law not having the force of law even though the failure
to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date
that materially and adversely affects the London interbank eurocurrency market;
then, and in any such event, such Lender (or the
Administrative Agent, in the case of clause (i) above) shall within a reasonable time thereafter give written notice to the Borrower
and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other
Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent
no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice
of Borrowing or Notice of Conversion or Continuation given by the Borrower with respect to Eurodollar Loans that have not yet been Incurred
shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender, promptly
(but no later than ten Business Days) after receipt of written demand therefor such additional amounts (in the form of an increased rate
of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as shall
be required to compensate such Lender for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written
notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted
to the Borrower by such Lender shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto)
and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 2.10(b) as
promptly as possible and, in any event, within the time period required by Applicable Law.
(b) At
any time that any Eurodollar Loan is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may
(and in the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the affected Eurodollar
Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent written notice thereof on the
same date that the Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected
Lender to convert each such Eurodollar Loan into an ABR Loan, if applicable; provided that if more than one Lender is affected
at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).
(c) If,
any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return
on such Lender’s or Letter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of
such Lender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender
or Letter of Credit Issuer or their respective parent could have achieved but for such Change in Law (taking into consideration such
Lender’s or Letter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy or
liquidity), then from time to time, promptly (but no later than ten Business Days) after written demand by such Lender or Letter of
Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such
additional amount or amounts as will compensate such Lender or Letter of Credit Issuer or their respective parent for such
reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such
compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or
directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each
Lender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this
Section 2.10(c), will give prompt written notice thereof to the Borrower (on its own behalf) which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not,
subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this
Section 2.10(c) upon receipt of such notice.
(d) If
the Borrower and the Administrative Agent reasonably determine in good faith that an interest rate is not ascertainable pursuant to
the provisions of the definition of “Eurodollar Rate” or “Reference Rate” and the inability to ascertain
such rate is unlikely to be temporary, the “Eurodollar Rate” and “Reference Rate” shall be an alternate rate
that is reasonably commercially practicable for the Administrative Agent to administer (as determined by the Administrative Agent in
its reasonable discretion) that is either: (i) an alternate rate established by the Administrative Agent and the Borrower that
is generally accepted as the then prevailing market convention for determining a rate of interest for syndicated leveraged loans of
this type in the United States at such time, in which case, the Administrative Agent and the Borrower shall enter into an amendment
to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable
(including the making of appropriate adjustments to such alternate rate and this Agreement (x) to preserve pricing in effect at
the time of selection of such alternate rate (but for the avoidance of doubt which would not reduce the Applicable Margin) and
(y) other changes necessary to reflect the available interest periods for such alternate rate) (the “Market Convention
Rate”) or (ii) if a Market Convention Rate is not available in the reasonable determination of the Administrative
Agent and the Borrower acting in good faith, an alternate rate, at the option of the Borrower, either (x) established
by the Administrative Agent and the Borrower, so long as the Lenders shall have received at least five Business Days' prior written
notice thereof (the “Notice Period”), in which case, the Administrative Agent and the Borrower shall enter into
an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be
applicable; provided that such alternate rate shall not apply to (and any such amendment shall not be effective with respect
to) any Class for which the Administrative Agent has received a written objection within the Notice Period from the Required
Lenders of such Class (with the Required Lenders of such Class determined as if such Class of Lenders were the only
Class of Lenders hereunder at the time), or (y) selected by the Borrower and the Required Lenders of any applicable
Class (with the Required Lenders of such Class determined as if such Class of Lenders were the only Class of
Lenders hereunder at the time) solely with respect to such Class, in which case, the Required Lenders of such Class and the
Borrower shall, subject to 15 Business Days' prior written notice to the Administrative Agent, enter into an amendment to this
Agreement to reflect such alternate rate of interest for such Class and make such other related changes to this Agreement as
may be necessary to reflect such alternate rate applicable to such Class) (any such alternate rate so established in accordance with
the foregoing provisions of this clause (d), the “Successor Benchmark Rate”); provided that, in the case
of each of clauses (i) and (ii), any such amendment shall become effective without any further action or consent of any other
party to this Agreement, notwithstanding anything to the contrary in Section 13.1; provided, further, that until
such Successor Benchmark Rate has been determined pursuant to this paragraph, (A) any request for Borrowing, the conversion of
any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (B) all outstanding
Borrowings shall be converted to an ABR Borrowing.
(e) This
Section 2.10 shall not operate to provide payments that are duplicative of those required under Section 5.4.
(f) The
agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(g) Notwithstanding
the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the
occurrence of a Change in Law arising solely from (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act or any
requests, rules, guidelines or directives thereunder or issued in connection therewith or (y) Basel III or any requests, rules,
guidelines or directives thereunder or issued in connection therewith, unless such Lender or Letter of Credit Issuer is generally
seeking compensation from other borrowers in the U.S. leveraged loan market with respect to its similarly affected commitments,
loans and/or participations under agreements with such borrowers having provisions similar to this Section 2.10.
2.11 Compensation.
If (a) any payment of principal of a Eurodollar Loan is made by the Borrower to or for the account of a Lender other than on
the last day of the Interest Period for such Eurodollar Loan as a result of a payment or conversion pursuant to Section 2.5,
2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the maturity of the Loans pursuant to Section 11 or for any other
reason, (b) any Borrowing of Eurodollar Loans is not made as a result of a withdrawn Notice of Borrowing or failure to satisfy
the conditions of Section 6 and Section 7, (c) any ABR Loan is not converted into a Eurodollar Loan as a result of a
withdrawn Notice of Conversion or Continuation, (d) any Eurodollar Loan is not continued as a Eurodollar Loan as a result of a
withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of a Eurodollar Loan is not made as a result
of a withdrawn notice of prepayment pursuant to Section 5.1 or 5.2, the Borrower shall, after receipt of a written request by
such Lender (which request shall set forth in reasonable detail the basis for requesting such amount and, absent clearly
demonstrable error, the amount requested shall be final and conclusive and binding upon all parties hereto), pay to the
Administrative Agent for the account of such Lender within ten Business Days of such request any amounts required to compensate such
Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to
borrow, failure to convert, failure to continue, failure to prepay, reduction or failure to reduce, including any loss, cost or
expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund or maintain such Eurodollar Loan. The agreements in this Section 2.11 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
2.12 Change
of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(c), 3.5 or 5.4 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event; provided
that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage,
with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.12
shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Section 2.10, 3.5 or 5.4.
2.13 Notice
of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Section 2.10,
2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has knowledge (or should have had knowledge) of the occurrence
of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described in such Sections,
such Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any such amounts
incurred or accruing prior to the giving of such notice to the Borrower; provided that, if the circumstance giving rise to such
claim is retroactive, then such 180 day period referred to above shall be extended to include the period of retroactive effect thereof.
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2.14
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Incremental Facilities.
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(a) The
Borrower may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent
request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing
Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the
Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment
Increase”) or (iii) one or more additional Classes of revolving credit commitments (the
“Additional/Replacement Revolving Credit Commitments,” and, together with the Incremental Term Loans and the
Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments in respect
thereof are referred to as the “Incremental Commitments”); provided that, subject to Section 1.11, at
the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement
Revolving Credit Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the proviso to
clause (b) below, no Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection
with an Acquisition or similar Investment, no Event of Default under Section 11.1 or 11.5) shall have occurred and be
continuing.
(b) Each
tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving
Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount
may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise
agreed by the Borrower and the Administrative Agent, in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso
at the end of this Section 2.14(b), following the SecondThird
Incremental Agreement Effective Date the aggregate amount of (x) the Incremental Term Loans, Incremental Revolving Credit Commitment
Increases and the Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds
thereof) Incurred pursuant to this Section 2.14(b), plus (y) the aggregate principal amount of Permitted Additional Debt
Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the
sum of (A) the Incremental Base Amount plus (B) an aggregate amount of Indebtedness, such that, subject to Section 1.11,
after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or Specified Restructuring
to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement
Revolving Credit Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance
with a Consolidated First Lien Debt to Consolidated EBITDA Ratio as of the last day of the Test Period most recently ended on or prior
to the Incurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred
on the first day of such Test Period, that is no greater than either (x) 5.24.95:1.00
or (y) if Incurred in connection with an Acquisition or similar Investment, no greater than the Consolidated First Lien Debt to Consolidated
EBITDA Ratio immediately prior to such Acquisition or similar Investment (this clause (B), the “Incremental Ratio Debt Amount”
and, together with the Incremental Base Amount, the “Incremental Limit”); provided that (i) Incremental
Term Loans may be Incurred without regard to the Incremental Limit, without regard to whether an Event of Default has occurred and is
continuing and, without regard to the minimums set forth in the first part of this 2.14(b), to the extent that the Net Cash Proceeds from
such Incremental Term Loans are used on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith)
to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or
(y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit Commitments or Additional/Replacement Revolving
Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (and any such Incremental Term Loans shall
be deemed to have been Incurred pursuant to this proviso), and (ii) Additional/Replacement Revolving Credit Commitments may be provided
without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this 2.14(b) and without
regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments, Extended
Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with
Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided
(and any such Additional/Replacement Revolving Credit Commitments shall be deemed to have been Incurred pursuant to this proviso).
(c) (i) The
Incremental Term Loans (A) shall rank equal in right of payment and security with the Initial Term Loans and
the 2019 Incremental Term Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and
shall only be guaranteed by the Credit Parties on a senior basis, (B) shall not mature earlier than the Initial Term Loan
Maturity Date or the 2019 Incremental Term Loan Maturity Date, (C) shall not have a
shorter Weighted Average Life to Maturity than the remaining Initial Term Loans or the remaining 2019 Incremental Term
Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and
interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments,
funding discounts, original issue discounts, currency denomination and prepayment terms and premiums for the Incremental Term Loans
as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, during
the period commencing on the Closing Date and ending on first anniversary of
the Closing Datewith respect of the 2019 Incremental Terms Loans, in the
event that the Effective Yield for any Incremental Term Loans (other than Incremental Term Loans (x) Incurred pursuant
to clause (B) of Section 2.14(b), (y) established pursuant to the
proviso of Section 2.14(b) or (zy)
Incurred in connection with an Acquisition (clauses (x), and (y) and
(z), collectively, the “MFN Exceptions”)), is greater than the Effective Yield for the Initial2019
Incremental Term Loans by more than 0.50%, then the Applicable Margins for the Initial2019
Incremental Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial2019
Incremental Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% (this proviso,
the “MFN Protection”); provided, further, that, with respect to any Incremental Term Loans that do
not bear interest at a rate determined by reference to the Eurodollar Rate, for purposes of calculating the applicable increase (if
any) in the Applicable Margins for the Initial2019
Incremental Term Loans in the immediately preceding proviso, the Applicable Margin for such Incremental Term Loans shall
be deemed to be the interest rate (calculated after giving pro forma effect to any increases required pursuant to the immediately
succeeding proviso) of such Incremental Term Loans less the then applicable Reference Rate; and (E) may otherwise have
terms and conditions different from those of the Initial Term Loans or the 2019 Incremental Term Loans,
as applicable; provided that (x) except with respect to matters contemplated by clauses (B), (C) and
(D) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other
provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Incremental
Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been
given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant
for the benefit of each Credit Facility.
(ii) The
Incremental Revolving Credit Commitment Increase shall be treated the same as the Class of Revolving Credit Commitments being increased
(including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being
increased (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the interest rate
margins, rate floors and undrawn commitment fees on the Class of Revolving Credit Commitments being increased may be increased and
additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Credit Commitment Increase
(without any requirement to pay such fees to any existing Revolving Credit Lenders)).
(iii) The
Additional/Replacement Revolving Credit Commitments (A) shall rank equal in right of payment and security with the Revolving
Credit Loans, shall be secured only by all or a portion of the Collateral securing the Obligations and shall only be guaranteed by
the Credit Parties on a senior basis, (B) shall not mature earlier than the Revolving Credit Maturity Date and shall require no
scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (C) shall have interest
rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding
discounts, original issue discounts, currency denomination, prepayment terms and premiums and commitment reduction and termination
terms as determined by the Borrower and the lenders of such commitments; provided that, during the period commencing on the
Closing Date and ending on first anniversary of the Closing Date, in the event that the Effective Yield for any
Additional/Replacement Revolving Credit Loans (other than Additional/Replacement Revolving Credit Loans under any
Additional/Replacement Revolving Credit Commitments (x) incurred pursuant to clause (B) of Section 2.14(b),
(y) established pursuant to the proviso of Section 2.14(b) or (z) Incurred in connection with an Acquisition or
similar Investment) is greater than the Effective Yield for the Revolving Credit Loans by more than 0.50%, then the Applicable
Margins for the Revolving Credit Loans shall be increased to the extent necessary so that the Effective Yield for the Revolving
Credit Loans are equal to the Effective Yield for the Additional/Replacement Revolving Credit Loans minus 0.50%;
(D) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders
of such commitments, (E) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued
thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees
payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be
determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and
borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the
applicable Incremental Agreement) to the terms relating to the Swingline Loans and Letters of Credit with respect to the applicable
Class of Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (F) may otherwise
have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect
to matters contemplated by clauses (B), (C), (D) and (E) above, any differences shall be reasonably satisfactory to the
Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and
(y) the documentation governing any Additional/Replacement Revolving Credit Commitments may include any Previously Absent
Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and
this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Credit Facility
(provided, further, however, that, if the applicable Previously Absent Financial Maintenance Covenant is a
“springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable
to, or for the benefit of, a revolving credit facility, the Previously Absent Financial Maintenance Covenant shall be automatically
included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term
loan facility hereunder)).
(d) Each
notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount, currency
denomination and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement
Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement
Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or
delayed), by any existing Lender (it being understood that no existing Lender with an Initial Term Loan Commitment
or 2019 Incremental Term Loan Commitment will have an obligation to make a portion of any Incremental Term Loan, no existing
Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Credit Commitment
Increase and no existing Lender with a Revolving Credit Commitment will have an obligation to provide a portion of any Additional/Replacement
Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other
bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative
Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such
Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit
Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or
Commitments, as applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental
Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and the Letter of Credit
Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing
such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments if such consent would be
required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) Commitments
in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving
Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by
an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment)
under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate,
the other Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each
Additional Lender, if any, and the Administrative Agent. The Incremental Agreement may, subject to Section 2.14(c), without the
consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the
reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (including
(i) in connection with an Incremental Revolving Credit Commitment Increase, to reallocate Revolving Credit Exposure on a pro
rata basis among the relevant Revolving Credit Lenders, (ii) in connection with Classes of Incremental Term Loans, to
extend the Prepayment Premium Period for the benefit of any existing Class of Term Loans to the extent that such Class of
Incremental Term Loans shall have the benefit of such longer Prepayment Premium Period and/or (iii) to increase the Effective
Yield of the applicable Class of Term Loans to the extent necessary in order to ensure that any applicable Class of
Incremental Term Loans are “fungible” with such existing Class of Term Loans. The effectiveness of any Incremental
Agreement (an “Incremental Facility Closing Date”) and the occurrence of any Credit Event pursuant to such
Incremental Agreement shall be subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrower will
use the proceeds of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement
Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided, however, that the proceeds of
any Incremental Term Loans Incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as
described in the proviso to Section 2.14(b), shall be used in accordance with the terms thereof.
(f) (i) No
Lender shall be obligated to provide any Incremental Term Loans, Incremental Revolving Credit Commitment Increases or
Additional/Replacement Revolving Credit Commitments unless it so agrees and the Borrower shall not be obligated to offer any
existing Lender the opportunity to provide any Incremental Term Loans, Incremental Revolving Credit Commitment Increases or
Additional/Replacement Revolving Credit Commitments.
(ii) Upon each increase in the Revolving Credit Commitments of any Class pursuant to this Section,
each Lender with a Revolving Credit Commitment of such Class immediately prior to such increase will automatically and without further
act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each, an “Incremental
Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment
Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations
hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving pro forma effect to each such deemed assignment
and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and
(B) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment of such Class (including
each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments
of such Class of all Lenders represented by such Lender’s Revolving Credit Commitment of such Class. If, on the date of such
increase, there are any Revolving Credit Loans of such Class outstanding, such Revolving Credit Loans shall on or prior to the effectiveness
of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder
(reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on
the Revolving Credit Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 2.11.
The Administrative Agent and the Lenders hereby agree 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 the immediately preceding
sentence.
(g) This
Section 2.14 shall supersede any provisions in Section 2.7 or 13.1 to the contrary. For the avoidance of doubt, any provisions
of this Section 2.14 may be amended with the consent of the Required Lenders; provided no such amendment shall require any
Lender to provide any Incremental Commitment without such Lender’s consent
2.15 Extensions
of Term Loans, Revolving Credit Loans and Revolving Credit Commitments and Additional/Replacement Revolving Credit Loans and Additional/Replacement
Revolving Credit Commitments.
(a) The
Borrower may at any time and from time to time request that all or a portion of each Term Loan of any Class (an
“Existing Term Loan Class”) be converted or exchanged to extend the scheduled final maturity date(s) of any
payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have
been so extended, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.15.
Prior to entering into any Extension Agreement with respect to any Extended Term Loans, the Borrower shall provide written notice to
the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class,
with such request offered equally to all such Lenders of such Existing Term Loan Class) (a “Term Loan Extension
Request”) setting forth the proposed terms of the Extended Term Loans to be established, which terms shall be similar to
the Term Loans of the Existing Term Loan Class from which they are to be extended except that (w) the scheduled final
maturity date shall be extended and all or any of the scheduled amortization payments of all or a portion of any principal amount of
such Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such
Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments
reflected in Section 2.5 or in the Extension Agreement or the Incremental Agreement, as the case may be, with respect to the
Existing Term Loan Class of Term Loans from which such Extended Term Loans were extended, in each case as more particularly set
forth in Section 2.15(cd) below),
(x)(A) the interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding
discounts, AHYDO Catch-Up Payments, original issue discounts and prepayment terms and premiums with respect to the Extended Term
Loans may be different than those for the Term Loans of such Existing Term Loan Class and/or (B) additional fees and/or
premiums may be payable to the Lenders providing such Extended Term Loans in addition to any of the items contemplated by the
preceding clause (A), in each case, to the extent provided in the applicable Extension Agreement, (y) subject to the provisions
set forth in Sections 5.1 and 5.2, the Extended Term Loans may have optional prepayment terms (including call protection and
prepayment terms and premiums) and mandatory prepayment terms as may be agreed between the Borrower and the Lenders thereof and
(z) the Extension Agreement may provide for other covenants and terms that apply to any period after the Latest Maturity Date.
No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into
Extended Term Loans pursuant to any Term Loan Extension Request. Any Extended Term Loans of any Extension Series shall
constitute a separate Class of Term Loans from the Existing Term Loan Class of Term Loans from which they were
extended.
(b) The
Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, the Extended
Revolving Credit Commitments of any Class and/or any Additional/Replacement Revolving Credit Commitments (and, in each case, including
any previously extended Revolving Credit Commitments and/or Additional/Replacement Revolving Credit Commitments), existing at the time
of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans under any
such facility, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving
Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted or exchanged to extend
the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of
any principal amount of Existing Revolving Credit Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving
Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related revolving
credit loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.15.
Prior to entering into any Extension Agreement with respect to any Extended Revolving Credit Commitments, the Borrower shall provide
a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of
Existing Revolving Credit Commitments, with such request offered equally to all Lenders of such Class) (a “Revolving Credit
Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established thereunder,
which terms shall be similar to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the
“Specified Existing Revolving Credit Commitment Class”) except that (w) all or any of the final maturity dates
of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Existing Revolving Credit
Commitments of the Specified Existing Revolving Credit Commitment Class, (x)(A) the interest rates, interest margins, rate floors,
upfront fees, funding discounts, AHYDO Catch-Up Payments, original issue discounts and prepayment terms and premiums with respect to
the Extended Revolving Credit Commitments may be different than those for the Existing Revolving Credit Commitments of the Specified
Existing Revolving Credit Commitment Class and/or (B) additional fees and/or premiums may be payable to the Lenders providing
such Extended Revolving Credit Commitments in addition to or in lieu of any of the items contemplated by the preceding clause (A) and
(y)(1) the undrawn revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be different
than those for the Specified Existing Revolving Credit Commitment Class and (2) the Extension Agreement may provide for other
covenants and terms that apply to any period after the Latest Maturity Date; provided that, notwithstanding anything to the contrary
in this Section 2.15, Section 5.2(e) or otherwise, (I) the borrowing and repayment (other than in connection with
a permanent repayment and termination of commitments) of the Extended Revolving Credit Loans under any Extended Revolving Credit Commitments
shall be made on a pro rata basis with any borrowings and repayments of the Existing Revolving Credit Loans of the Specified Existing
Revolving Credit Commitment Class (the mechanics for which may be implemented through the applicable Extension Agreement and may
include technical changes related to the borrowing and repayment procedures of the Specified Existing Revolving Credit Commitment Class),
(II) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed
by the assignment and participation provisions set forth in Section 13.6 and (III) subject to the applicable limitations set
forth in Section 4.2 and Section 5.2(e)(ii), permanent repayments of Extended Revolving Credit Loans (and corresponding permanent
reduction in the related Extended Revolving Credit Commitments) shall be permitted as may be agreed between the Borrower and the Lenders
thereof. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any
Existing Revolving Credit Class converted or exchanged into Extended Revolving Credit Loans or Extended Revolving Credit Commitments
pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate
Class of revolving credit commitments from Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment
Class and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so
established on such date).
(c) The
Borrower shall provide the applicable Extension Request to the Administrative Agent at least five (5) Business Days (or such shorter
period as the Administrative Agent may determine in its reasonable discretion) prior to the date on which Lenders under the Existing Class are
requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent,
in each case acting reasonably, to accomplish the purpose of this Section 2.15. The Borrower may, at its election, specify as a condition
to consummating any Extension Agreement that a minimum amount (to be determined and specified in the relevant Extension Request in the
Borrower’s sole discretion and as may be waived by the Borrower) of Term Loans and/or Revolving Credit Commitments (as applicable)
of any or all applicable Classes be tendered. Any Lender (an “Extending Lender”) wishing to have all or a portion of
its Term Loans, Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments (or any earlier Extended Revolving
Credit Commitments) of an Existing Class subject to such Extension Request converted or exchanged into Extended Loans/Commitments
shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension
Request of the amount of its Term Loans, Revolving Credit Commitments and/or Additional/Replacement Revolving Credit Commitments (and/or
any earlier Extended Revolving Credit Commitments) which it has elected to convert or exchange into Extended Loans/Commitments (subject
to any minimum denomination requirements imposed by the Administrative Agent). In the event that the aggregate amount of Term Loans, Revolving
Credit Commitments and Additional/Replacement Revolving Credit Commitments (and any earlier extended Extended Revolving Credit Commitments)
subject to Extension Elections exceeds the amount of Extended Loans/Commitments requested pursuant to the Extension Request, Term Loans,
Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments or earlier extended Extended Revolving Credit Commitments,
as applicable, subject to Extension Elections shall be converted to or exchanged to Extended Loans/Commitments on a pro rata basis (subject
to such rounding requirements as may be established by the Administrative Agent) based on the amount of Term Loans, Revolving Credit Commitments,
Additional/Replacement Revolving Credit Commitments and earlier extended Extended Revolving Credit Commitments included in each such Extension
Election or as may be otherwise agreed to in the applicable Extension Agreement. Notwithstanding the conversion of any Existing Revolving
Credit Commitment into an Extended Revolving Credit Commitment, unless expressly agreed by the holders of each affected Existing Revolving
Credit Commitment of the Specified Existing Revolving Credit Commitment Class, such Extended Revolving Credit Commitment shall not be
treated more favorably than all Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class for
purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(d) and Letters of Credit
under Section 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the last day
for issuing Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be continued
(pursuant to mechanics to be specified in the applicable Extension Amendment) so long as the Swingline Lender and/or each Letter of Credit
Issuer have consented to such extensions (it being understood that no consent of any other Lender shall be required in connection with
any such extension).
(d) Extended
Loans/Commitments shall be established pursuant to an amendment (an “Extension Agreement”) to this Agreement
(which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.15(d) and
notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the
Extending Lenders with respect to the Extended Loans/Commitments established thereby) executed by the Credit Parties, the
Administrative Agent and the Extending Lenders. In addition to any terms and changes required or permitted by Section 2.15(b),
each Extension Agreement in respect of Extended Term Loans shall amend the scheduled amortization payments pursuant to
Section 2.5 or the applicable Incremental Agreement or Extension Agreement with respect to the Existing Class of Term
Loans from which the Extended Term Loans were exchanged to reduce each scheduled Repayment Amount for the Existing Class in the
same proportion as the amount of Term Loans of the Existing Class is to be reduced pursuant to such Extension Agreement (it
being understood that the amount of any Repayment Amount payable with respect to any individual Term Loan of such Existing
Class that is not an Extended Term Loan shall not be reduced as a result thereof). In connection with any Extension Agreement,
the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent and addressed to the
Administrative Agent and the applicable Extending Lenders (i) as to the enforceability of such Extension Agreement, this
Agreement as amended thereby, and such of the other Credit Documents (if any) as may be amended thereby (in the case of such other
Credit Documents as contemplated by the immediately preceding sentence) and covering customary matters and (ii) to the effect
that such Extension Agreement, including the Extended Loans/Commitments provided for therein, does not breach or result in a default
under the provisions of Section 13.1 of this Agreement.
(e) Notwithstanding
anything to the contrary contained in this Agreement, (A) on any date on which any Existing Term Loan Class or
Class of Existing Revolving Credit Commitments is converted or exchanged to extend the related scheduled maturity
date(s) in accordance with paragraph (a) above (an “Extension Date”), (I) in the case of the
existing Term Loans of each Extending Lender, the aggregate principal amount of such existing Term Loans shall be deemed reduced by
an amount equal to the aggregate principal amount of Extended Term Loans so converted or exchanged by such Lender on such date, and
the Extended Term Loans shall be established as a separate Class of Term Loans (together with any other Extended Term Loans so
established on such date), and (II) in the case of the
Existing Revolving Credit Commitments of each Extending Lender under any Specified Existing Revolving Credit Commitment Class, the
aggregate principal amount of such Existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate
principal amount of Extended Revolving Credit Commitments so converted or exchanged by such Lender on such date (or by any greater
amount as may be agreed by the Borrower and such Lender), and such Extended Revolving Credit Commitments shall be established as a
separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitment Class and from any
other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such
date) and (B) if, on any Extension Date, any Existing Revolving Credit Loans of any Extending Lender are outstanding under the
Specified Existing Revolving Credit Commitment Class, such Existing Revolving Credit Loans (and any related participations) shall be
deemed to be converted or exchanged to Extended Revolving Credit Loans (and related participations) of the applicable Class in
the same proportion as such Extending Lender’s Specified Existing Revolving Credit Commitments to Extended Revolving Credit
Commitments of such Class.
(f) In
the event that the Administrative Agent determines in its sole discretion that the allocation of Extended Term Loans of a given Extension
Series or the Extended Revolving Credit Commitments of a given Extension Series, in each case to a given Lender was incorrectly determined
as a result of manifest administrative error in the receipt and processing of an Extension Election timely submitted by such Lender in
accordance with the procedures set forth in the applicable Extension Agreement, then the Administrative Agent, the Borrower and such affected
Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter into an amendment
to this Agreement and the other Credit Documents (each, a “Corrective Extension Agreement”) within 15 days following
the effective date of such Extension Agreement, as the case may be, which Corrective Extension Agreement shall (i) provide for the
conversion or exchange and extension of Term Loans under the Existing Term Loan Class or Existing Revolving Credit Commitments (and
related Revolving Credit Exposure), as the case may be, in such amount as is required to cause such Lender to hold Extended Term Loans
or Extended Revolving Credit Commitments (and related revolving credit exposure) of the applicable Extension Series into which such
other Term Loans or commitments were initially converted or exchanged, as the case may be, in the amount such Lender would have held had
such administrative error not occurred and had such Lender received the minimum allocation of the applicable Loans or Commitments to which
it was entitled under the terms of such Extension Agreement, in the absence of such error, (ii) be subject to the satisfaction of
such conditions as the Administrative Agent, the Borrower and such Lender may agree (including conditions of the type required to be satisfied
for the effectiveness of an Extension Agreement described in Section 2.15(d)), and (iii) effect such other amendments of the
type (with appropriate reference and nomenclature changes) described in the penultimate sentence of Section 2.15(d).
(g) No
conversion or exchange of Loans or Commitments pursuant to any Extension Agreement in accordance with this Section 2.15 shall constitute
a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(h) This
Section 2.15 shall supersede any provisions in Section 2.4 or Section 13.1 to the contrary. For the avoidance of doubt,
any of the provisions of this Section 2.15 may be amended with the consent of the Required Lenders; provided that no such
amendment shall require any Lender to provide any Extended Loans/Commitments without such Lender’s consent.
2.16 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 the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) the
Commitment of and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or
the Required Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment
or waiver pursuant to Section 13.1); provided that (i) any waiver, amendment or modification requiring the consent of
all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent
of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of
such Lender;
(c) if
any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any
part of such Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to
the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among
the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each
Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting
Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment
by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the
Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender
to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting
Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders,
whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within two Business Days
following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving pro forma effect to any partial
reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit
Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures
set forth in Section 3.8 for so long as such Letter of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes
any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to the requirements of this Section 2.16(c), the
Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting
Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized,
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(c),
then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’
Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with
respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit
Exposure is reallocated, or (v) if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated
pursuant to the requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer
or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit
Exposure shall be payable to the Letter of Credit Issuer until such Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(d) (i) the
Letter of Credit Issuer will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase
the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Letter of Credit Issuer is
reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered
by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or combination thereof in accordance
with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit
Issuer; and
(ii) the Swingline
Lender will be not required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would
result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non- Defaulting
Lenders or a combination thereof in accordance with the requirements of Section 2.16(c) above.
(e) If
the Borrower, the Administrative Agent, the Swingline Lender and each applicable Letter of Credit Issuer agree in writing in their discretion
that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify
the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such
Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Credit Loans of the other Revolving Credit
Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause such outstanding Revolving Credit
Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Revolving
Credit Lenders (including such Lender) in accordance with their applicable percentages, whereupon such Lender will cease to be a Defaulting
Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter
of Credit Exposure and Swingline Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(c) shall be
reallocated back to such Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided that, except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release
of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender; and
(f) Any
payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise, and including any amounts made available to
the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to
the Administrative Agent hereunder; second, in the case of a Revolving Credit Lender, to the payment on a pro rata
basis of any amounts owing by that Defaulting Lender to the Letter of Credit Issuer and the Swingline Lender hereunder; third,
as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth,
if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released pro
rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans
under this Agreement and (y) Cash Collateralize, in accordance with Section 3.8, the Letter of Credit Issuer’s
potential future fronting exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this
Agreement; fifth, to the payment of any amounts owing to the Lenders, the Letter of Credit Issuer or the Swingline Lender as
a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or such Swingline
Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth,
so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower or any of its Restricted
Subsidiaries pursuant to any Secured Hedging Agreement with such Defaulting Lender as certified by an Authorized Officer of the
Borrower to the Administrative Agent (with a copy to the Defaulting Lender) prior to such date of payment; seventh, so long
as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court
of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that, if such payment is a payment of the principal amount of any Loans or a payment of any
Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant
non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.16(f). Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall be deemed paid to and redirected by that Defaulting
Lender, and each Lender irrevocably consents hereto.
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2.17
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Term Loan Exchange Notes.
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(a) The
Borrower may by written notice to the Administrative Agent elect to offer (each a “Permitted Debt Exchange Offer”)
to issue to Lenders holding Term Loans under this Agreement first priority senior secured notes and/or junior lien secured notes and/or
unsecured notes (the “Term Loan Exchange Notes”) in exchange for the Term Loans (each such exchange, a “Permitted
Debt Exchange”); provided that such Term Loan Exchange Notes may not be in an aggregate principal amount greater than
the Term Loans being exchanged plus unpaid accrued interest, fees and premiums (including tender premiums) (if any) thereon, defeasance
costs, underwriting discounts and fees, commissions and expenses (including OID, closing payments, upfront fees or similar fees) in connection
with the issuance of the Term Loan Exchange Notes. Each such notice shall specify the date (each, a “Term Loan Exchange Effective
Date”) on which the Borrower proposes that the Term Loan Exchange Notes shall be issued, which shall be a date not less than
fifteen days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may be agreed by
the Administrative Agent); provided that: (w) the Weighted Average Life to Maturity of such Term Loan Exchange Notes shall
not be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans being exchanged (it being understood that
acceleration or mandatory repayment, prepayment, redemption or repurchase of such Term Loan Exchange Notes upon the occurrence of an
event of default, a change in control, an event of loss or an asset disposition shall not be deemed to constitute a change in the stated
final maturity thereof); (x) if secured, such Term Loan Exchange Notes shall rank equal to or junior in right of payment and of
security with the Loans and Commitments being exchanged hereunder; (y) all other terms and conditions (other than interest
rates (including through fixed interest rates), interest rate margins, rate floors, fees, maturity, funding discounts, original issue
discounts and redemption or prepayment terms and premiums) applicable to such Term Loan Exchange Notes shall reflect market terms and
conditions at the time of incurrence or issuance (as determined in good faith by the Borrower); provided that the Term Loan Exchange
Notes may have the benefit of any Previously Absent Financial Maintenance Covenant if the Administrative Agent has been given prompt
written notice thereof and this Agreement shall have been amended to include such Previously Absent Financial Maintenance Covenant; and
(z) the obligations in respect of the Term Loan Exchange Notes (A) shall not be secured by Liens on any asset of Holdings,
the Borrower and the Restricted Subsidiaries other than assets constituting Collateral, (B) if such Term Loan Exchange Notes are
secured, all security therefor shall be granted pursuant to documentation that is not more restrictive than the Security Documents in
any material respect taken as a whole (as determined by the Borrower) and the representative for such Additional Term Notes shall enter
into a Customary Intercreditor Agreement (it being understood that junior Liens are not required to be equal to other junior Liens, and
that Indebtedness secured by junior Liens may be secured by Liens that are equal to, or junior in priority to, other Liens that are junior
to the Liens securing the Obligations), or (C) shall not be incurred or Guaranteed by any Restricted Subsidiary unless such Restricted
Subsidiary is a Credit Party which shall have previously or substantially concurrently Guaranteed or borrowed such Term Loans being exchanged.
(b) The
Borrower shall offer to issue Term Loan Exchange Notes in exchange for the Class of Term Loans to all Lenders holding such Class of
Term Loans (other than any Lender that, if requested by the Borrower, is unable to certify that it is (i) a “qualified institutional
buyer” (as defined in Rule 144A under the Securities Act), (ii) an institutional “accredited investor” (as
defined in Rule 501 under the Securities Act) or (iii) not a “U.S. person” (as defined in Rule 902 under the
Securities Act) on a pro rata basis, and such Lenders may choose to accept or decline to receive such Term Loan Exchange Notes in their
sole discretion. Any such Term Loans exchanged for Term Loan Exchange Notes shall be automatically and immediately, without further action
by any Person, cancelled on the Term Loan Exchange Effective Date for all purposes of this Agreement (and, if requested by the Administrative
Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other
form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its
interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), and accrued
and unpaid interest on such Term Loans shall be paid to the exchanging Lenders on the Term Loan Exchange Effective Date, or, if agreed
to by the Borrower and the Administrative Agent, the next scheduled Interest Payment Date with respect to such Term Loans (with such
interest accruing until the date of consummation of such Permitted Debt Exchange).
(c) If
the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of a given Class tendered by Lenders in
respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which
exceeds the principal amount thereof of the applicable Class actually held by it) shall exceed the maximum aggregate principal amount
of Term Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower
shall exchange Term Loans under the relevant Class tendered by such Lenders ratably up to such maximum based on the respective principal
amounts so tendered, or, if such Permitted Debt Exchange Offer shall have been made with respect to multiple Classes without specifying
a maximum aggregate principal amount offered to be exchanged for each Class, and the aggregate principal amount of all Term Loans (calculated
on the face amount thereof) of all Classes tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender
being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof actually held by it) shall exceed
the maximum aggregate principal amount of Term Loans of all relevant Classes offered to be exchanged by the Borrower pursuant to such
Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans across all Classes subject to such Permitted Debt Exchange
Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered.
(d) With
respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.17, unless waived by the Borrower,
such Permitted Debt Exchange Offer shall be made for not less than $50,000,000 in aggregate principal amount of Term Loans; provided that
subject to the foregoing the Borrower may at its election specify (A) as a condition (a “Minimum Tender
Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the
relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable Classes be
tendered and/or (B) as a condition (a “Maximum Tender Condition”) to consummating any such Permitted Debt
Exchange that no more than a maximum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the
Borrower’s discretion) of Term Loans of any or all applicable Classes will be accepted for exchange. The Administrative Agent
and the Lenders hereby acknowledge and agree that this Section 2.17 shall supersede any provisions of Section 2.5,
Section V and Section 13.1 to the contrary, waive the requirements of any other provision of this Agreement or any other
Credit Document that may otherwise prohibit the incurrence of any Indebtedness expressly provided for by this Section 2.17 and
hereby agree not to assert any Default or Event of Default in connection with the implementation of any such Permitted Debt Exchange
or any other transaction contemplated by this Section 2.17.
(e) In
connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least five Business Days’ (or
such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative
Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this
Section 2.17; provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant
Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five Business Days
following the date on which the Permitted Debt Exchange Offer is made. The Borrower shall provide the final results of such Permitted
Debt Exchange to the Administrative Agent no later than one Business Day prior to the proposed date of effectiveness for such Permitted
Debt Exchange and the Administrative Agent shall be entitled to conclusively rely on such results.
(f) The
Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection
with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent nor any Lender assumes
any responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted Debt Exchange and
(y) each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations
to which such Lender may be subject under the Exchange Act.
SECTION 3. Letters
of Credit.
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3.1
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Issuance of Letters of Credit.
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(a) Subject
to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Closing Date and prior to the
date that is 15 days prior to the Revolving Credit Maturity Date, each Letter of Credit Issuer agrees to issue (or cause its Affiliates
or other financial institution with which the Letter of Credit Issuer shall have entered into an agreement regarding the issuance of letters
of credit hereunder, to issue on its behalf), upon the request of and for the account of the Borrower or any Restricted Subsidiary, letters
of credit (each, a “Letter of Credit”) in such form as may be approved by such Letter of Credit Issuer in its reasonable
discretion; provided that the Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Letter
of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding
the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Obligations
at such time, would exceed the Letter of Credit Sub-Commitment then in effect, (ii) no Letter of Credit shall be issued the Stated
Amount of which, when added to the Letter of Credit Obligations and the Revolving Credit Loans and Swingline Loans outstanding at such
time, would exceed the Total Revolving Credit Commitment then in effect, (iii) no Letter of Credit shall be required to be issued
by a Letter of Credit Issuer the Stated Amount of which, when added to such Letter of Credit Issuer’s Revolving Credit Exposure
(whether held directly or through its Affiliates), would exceed the Revolving Credit Commitment of such Letter of Credit Issuer (or its
Affiliates), (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one year after
the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of Credit Issuer or as
provided under Section 3.2(e), and (y) the Letter of Credit Maturity Date, (v) each Letter of Credit shall be denominated
in Dollars, (vi) no Letter of Credit shall be issued if it would be illegal under any Applicable Law for the beneficiary of the Letter
of Credit to have a Letter of Credit issued in its favor, (vii) no Letter of Credit shall be issued after the applicable Letter of
Credit Issuer has received a written notice from the Borrower or the Administrative Agent stating that a Default or an Event of Default
has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission
of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default
in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing, (viii) no
Letter of Credit shall be issued by the applicable Letter of Credit Issuer if such issuance would cause the Letter of Credit Obligations
of such Letter of Credit Issuer to exceed the Letter of Credit Sub-Commitment Obligation of such Letter of Credit Issuer, (ix) UBS
AG, Stamford Branch shall only be required to issue standby letters of credit and (x) in no event shall SunTrust Bank be required
to issue commercial or trade letters of credit.
(c) In
connection with the establishment of any Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments
and subject to the availability of unused Commitments with respect to such newly established Class and the satisfaction of the Conditions
set forth in Section 7, the Borrower may, with the written consent of the Letter of Credit Issuer, designate any outstanding Letter
of Credit to be a Letter of Credit issued pursuant to such Class of Extended Revolving Credit Commitments or Additional/Replacement
Revolving Credit Commitments, as applicable. Upon such designation such Letter of Credit shall no longer be deemed to be issued and outstanding
under such prior Class and shall instead be deemed to be issued and outstanding under such newly established Class of Extended
Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments, as applicable.
(d) On
the Closing Date, without further action by any party hereto (including the delivery of a Letter of Credit Request or any consent
of, or confirmation by or to, the Administrative Agent), subject to the terms of this Section 3, (i) each Existing Letter
of Credit set forth on Schedule 1.1(b) hereto issued by a Letter of Credit Issuer hereunder shall become a Letter of Credit
outstanding under this Agreement, shall be deemed to be a Letter of Credit issued under this Agreement and shall be subject to the
terms and conditions hereof (including Section 4.1) as if each such Letter of Credit was issued by the applicable Letter of
Credit Issuer pursuant to this Agreement and (ii) each Letter of Credit Issuer that has issued an Existing Letter of Credit
shall be deemed to have granted each Letter of Credit Participant in respect thereof and each Letter of Credit Participant in
respect thereof shall be deemed to have acquired from such Letter of Credit Issuer, on the terms and conditions of Section 3.3
hereof, for such Letter of Credit Participant’s own account and risk, an undivided participation interest in such Letter of
Credit Issuer’s obligations and rights under each such Existing Letter of Credit equal to such Letter of Credit
Participant’s Revolving Credit Commitment Percentage, as applicable, of (A) the outstanding amount available to be drawn
under such Existing Letter of Credit and (B) the aggregate amount of any outstanding reimbursement obligations in respect
thereof.
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3.2
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Letter of Credit Requests.
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(a) Whenever
the Borrower (or the Borrower on behalf of any Restricted Subsidiary) desires that a Letter of Credit be issued (or amended, renewed or
extended), it shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request by no later than 1:00 p.m. (New
York City time) (i) at least three (or such lesser number as may be agreed upon by the Administrative Agent and the Letter of Credit
Issuer) Business Days prior to the proposed date of issuance, amendment, renewal or extension for any Letter of Credit for the account
of the Borrower or any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall have also signed the applicable Letter
of Credit Request), (ii) at least five (or such lesser number as may be agreed upon by the Administrative Agent and the Letter of
Credit Issuer) Business Days prior to the proposed date of issuance, amendment, renewal or extension for any Letter of Credit for the
account of any Restricted Subsidiary that is a Domestic Subsidiary that is not a Credit Party and (iii) at least ten (or such lesser
number as may be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days prior to the date of issuance,
amendment, renewal or extension for any Letter of Credit for the account of any Foreign Restricted Subsidiary. Each Letter of Credit Request
shall be executed by the Borrower and sent by facsimile, by United States mail, by overnight courier, by electronic transmission using
the system provided by the Letter of Credit Issuer, by personal delivery or by any other means acceptable to the Letter of Credit Issuer.
(b) In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day);
(B) the Stated Amount thereof; (C) the expiry date
thereof (which shall be not later than the earlier of (x) one year after the date of issuance thereof, unless otherwise agreed
upon by the Administrative Agent and the applicable Letter of Credit Issuer or as provided under Section 3.2(e), and
(y) the Letter of Credit Maturity Date); (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder and (G) such other matters as the Letter of Credit Issuer may reasonably require.
In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify:
(A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit Issuer may reasonably
require.
(c) Promptly
after receipt of any Letter of Credit Request, the Letter of Credit Issuer will confirm with the Administrative Agent in writing that
the Administrative Agent has received a copy of such Letter of Credit Request from the Borrower and, if not, the Letter of Credit Issuer
will provide the Administrative Agent with a copy thereof. Unless the Letter of Credit Issuer has received written notice from the Required
Revolving Credit Lenders, the Administrative Agent, the Borrower or any other Credit Party at least two Business Days prior to the requested
date of issuance or amendment of the Letter of Credit, that one or more applicable conditions contained in Section 7 shall not then
be satisfied, then, subject to the terms and conditions hereof, the Letter of Credit Issuer shall, on the requested date, issue a Letter
of Credit for the account of the Borrower (or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with the terms hereof.
(d) The
making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower that the Letter of Credit
may be issued in accordance with, and will not violate the requirements of, Section 3.1(b).
(e) If
the Borrower so requests in any applicable Letter of Credit Request, the Letter of Credit Issuer may agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that
any such Auto-Extension Letter of Credit must permit the Letter of Credit Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless otherwise directed by the Letter of Credit Issuer, the Borrower shall not be
required to make a specific request to the Letter of Credit Issuer for any such extension. Once an Auto-Extension Letter of Credit
has been issued, the Lenders shall be deemed to have authorized (but may not require) the Letter of Credit Issuer to permit the
extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Maturity Date; provided, however,
that the Letter of Credit Issuer shall not permit any such extension if (A) the Letter of Credit Issuer has determined that it
would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received written
notice on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent
that the Required Revolving Credit Lenders have elected not to permit such extension or (2) from the Administrative Agent, the
Required Revolving Credit Lenders or the Borrower that one or more of the applicable conditions specified in Section 7 are not
then satisfied, and in each such case directing the Letter of Credit Issuer not to permit such extension.
(f) Promptly
after its delivery of any Letter of Credit or any amendment, renewal or extension to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the Letter of Credit Issuer will notify the Administrative Agent of such delivery, amendment, renewal
or extension and will also deliver to the Borrower a true and complete copy of such Letter of Credit or amendment, renewal or extension.
On the last Business Day of each March, June, September and December, the Letter of Credit Issuer shall provide the Administrative
Agent a list of all Letters of Credit issued by it that are outstanding at such time.
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3.3
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Letter of Credit Participations.
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(a) Immediately
upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and
transferred to each other Revolving Credit Lender (each such Revolving Credit Lender, in its capacity under this Section 3.3(a),
a “Letter of Credit Participant”), and each such Letter of Credit Participant shall be deemed irrevocably and unconditionally
to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation
(each, a “Letter of Credit Participation”), to the extent of such Letter of Credit Participant’s Revolving Credit
Commitment Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of
the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit
Fees will be paid directly to the Administrative Agent for the ratable account of the Letter of Credit Participants as provided in Section 4.1(c) and
the Letter of Credit Participants shall have no right to receive any portion of any fees paid to the Administrative Agent for the account
of the Letter of Credit Issuer in respect of each Letter of Credit issued hereunder).
(b) In
determining whether to pay under any Letter of Credit, the Letter of Credit Issuer shall have no obligation relative to the Letter of
Credit Participants other than to confirm to the Administrative Agent that any documents required to be delivered under such Letter of
Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken or omitted
in the absence of gross negligence or willful misconduct, as determined in a final non-appealable judgment of a court of competent jurisdiction,
shall not create for the Letter of Credit Issuer any resulting liability.
(c) Whenever
the Administrative Agent receives a payment in respect of an unpaid reimbursement obligation for the account of the Letter of Credit Issuer
from the Borrower, the Administrative Agent shall promptly pay to each Letter of Credit Participant that has paid its Revolving Credit
Commitment Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount equal to such Letter
of Credit Participant’s share (based upon the proportionate aggregate amount originally funded or deposited by such Letter of Credit
Participant to the aggregate amount funded or deposited by all Letter of Credit Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective Letter of Credit Participations; provided that the
amount paid to any Letter of Credit Participant shall not exceed the amount funded or deposited by such Letter of Credit Participant.
(d) The
obligations of the Letter of Credit Participants to purchase Letter of Credit Participations from the Letter of Credit Issuer and make
payments to the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable
and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances, including under any of the following circumstances:
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(i)
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any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
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(ii) the
existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom any such beneficiary or transferee may be acting), the Administrative
Agent, the Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions
contemplated hereby or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named
in any such Letter of Credit);
(iii) any
draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect;
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(iv)
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the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents;
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(v)
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the occurrence of any Default or Event of Default; or
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(vi) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Credit Party or Restricted Subsidiary.
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3.4
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Agreement to Repay Letter of Credit Drawings.
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(a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer in Dollars with respect to any drawing under any Letter of Credit,
by making payment, whether with its own funds, with the proceeds of Revolving Credit Loans or any other source, to the
Administrative Agent for the account of the Letter of Credit Issuer in immediately available funds, for any payment or disbursement
made by the Letter of Credit Issuer under any Letter of Credit issued by it (with respect to each such amount so paid under a Letter
of Credit until reimbursed, a “Unpaid Drawing” (i) within one Business Day of the date of such payment or
disbursement, if the Letter of Credit Issuer provides notice to the Borrower of such payment or disbursement prior to 11:00
a.m. (New York City time) on such next succeeding Business Day after the date of such payment or disbursement or (ii) if
such notice is received after such time, on the next Business Day following the date of receipt of such notice (such required date
for reimbursement under clause (i) or (ii), as applicable (the “Required Reimbursement Date”), with interest
on the amount so paid or disbursed by such Letter of Credit Issuer, from and including the date of such payment or disbursement to
but excluding the Required Reimbursement Date, at the per annum rate for each day equal to the rate described in
Section 2.8(a); provided that, notwithstanding anything contained in this Agreement to the contrary, with respect to any
Letter of Credit, (i) unless the Borrower shall have notified the Administrative Agent and the Letter of Credit Issuer prior to
11:00 a.m. (New York City time) on the Required Reimbursement Date that the Borrower intends to reimburse the Letter of Credit
Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Borrower shall be deemed to
have given a Notice of Borrowing requesting that the Lenders with Revolving Credit Commitments make Revolving Credit Loans (which
shall be ABR Loans) on the Required Reimbursement Date in an amount equal to the amount of such drawing, and (ii) the
Administrative Agent shall promptly notify each Letter of Credit Participant of such drawing and the amount of its Revolving Credit
Loan to be made in respect thereof, and each Letter of Credit Participant shall be irrevocably obligated to make a Revolving Credit
Loan to the Borrower in the manner deemed to have been requested in the amount of its Revolving Credit Commitment Percentage of the
applicable Unpaid Drawing by 12:00 noon (New York City time) on such Required Reimbursement Date by making the amount of such
Revolving Credit Loan available to the Administrative Agent. Such Revolving Credit Loans made in respect of such Unpaid Drawing on
such Required Reimbursement Date shall be made without regard to the Minimum Borrowing Amount and without regard to the satisfaction
of the conditions set forth in Section 7. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely
for the purpose of reimbursing the Letter of Credit Issuer for the related Unpaid Drawing. If and to the extent such Letter of
Credit Participant shall not have so made its Revolving Credit Commitment Percentage of the amount of such payment available to the
Administrative Agent for the account of the Letter of Credit Issuer, or that in the sole judgment of the Letter of Credit Issuer,
such Revolving Credit Loan cannot for any reason be made on the date otherwise required above (including as a result of the
commencement of a proceeding under any Debtor Relief Law in respect of the Borrower), each Letter of Credit Participant hereby
agrees that its participation in such Unpaid Drawing shall remain outstanding in lieu of funding its portion of such Revolving
Credit Loan and such Letter of Credit Participant agrees to pay to the Administrative Agent for the account of the Letter of Credit
Issuer, forthwith on demand, such amount, together with interest thereon for each day from such date until the date such amount is
paid to the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum equal to the Overnight Rate from
time to time then in effect, plus any administrative, processing or similar fees customarily charged by the Letter of Credit
Issuer in connection with the foregoing. The failure of any Letter of Credit Participant to make available to the Administrative
Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of
Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to the Administrative
Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of
Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any
other Letter of Credit Participant to make available to the Administrative Agent such other Letter of Credit Participant’s
Revolving Credit Commitment Percentage of any such payment.
(b) The
obligations of the Borrower under this Section 3.4 to reimburse the Letter of Credit Issuer with respect to Unpaid Drawings (including,
in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim
or defense to payment that the Borrower or any other Person may have or have had against the Letter of Credit Issuer, the Administrative
Agent or any Lender (including in its capacity as a Letter of Credit Participant), including any defense based upon the failure of any
drawing under a Letter of Credit (each, a “Drawing”) to conform to the terms of such Letter of Credit or any non-application
or misapplication by the beneficiary of the proceeds of such Drawing; provided that the Borrower shall not be obligated to reimburse
the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by it as a
result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer as determined
in the final, non-appealable judgment of a court of competent jurisdiction.
3.5 Increased
Costs. If a Change in Law shall either (a) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against letters of credit issued by the Letter of Credit Issuer, or any Letter of Credit
Participant’s Letter of Credit Participation therein or (b) impose on the Letter of Credit Issuer or any Letter of Credit
Participant any other conditions affecting its obligations under this Agreement in respect of Letters of Credit or Letter of Credit
Participations therein or any Letter of Credit or such Letter of Credit Participant’s Letter of Credit Participation therein,
and the result of any of the foregoing is to increase the cost to the Letter of Credit Issuer or such Letter of Credit Participant
of issuing, maintaining or participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by the
Letter of Credit Issuer or such Letter of Credit Participant hereunder (other than any such increase or reduction attributable to
(i) Taxes indemnifiable under Section 5.4, (ii) Excluded Taxes or (iii) Taxes described in Section 5.4(f)) in
respect of Letters of Credit or Letter of Credit Participations therein, then, promptly after receipt of written demand to the
Borrower by the Letter of Credit Issuer or such Letter of Credit Participant, as the case may be (a copy of which notice shall be
sent by the Letter of Credit Issuer or such Letter of Credit Participant to the Administrative Agent), the Borrower shall pay to the
Letter of Credit Issuer or such Letter of Credit Participant such additional amount or amounts as will compensate the Letter of
Credit Issuer or such Letter of Credit Participant for such increased cost or reduction, it being understood and agreed, however,
that the Letter of Credit Issuer or a Letter of Credit Participant shall not be entitled to such compensation as a result of such
Person’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law that would have
existed in the event that a Change in Law had not occurred. A certificate submitted to the Borrower by the Letter of Credit Issuer
or a Letter of Credit Participant, as the case may be (a copy of which certificate shall be sent by the Letter of Credit Issuer or
such Letter of Credit Participant to the Administrative Agent), setting forth in reasonable detail the basis for the determination
of such additional amount or amounts necessary to compensate the Letter of Credit Issuer or such Letter of Credit Participant as
aforesaid shall be conclusive and binding on the Borrower absent clearly demonstrable error. Notwithstanding the foregoing, no
Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 3.5 based on the occurrence of a
Change in Law arising solely from (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act or any requests, rules,
guidelines or directives thereunder or issued in connection therewith or (y) Basel III or any requests, rules, guidelines or
directives thereunder or issued in connection therewith, unless such Lender or Letter of Credit Issuer is generally seeking
compensation from other borrowers in the U.S. leveraged loan market with respect to its similarly affected commitments, loans and/or
participations under agreements with such borrowers having provisions similar to this Section 3.5.
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3.6
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New or Successor Letter of Credit Issuer.
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(a) Any
Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 30 days’ prior written notice to the Administrative Agent,
the applicable Revolving Credit Lenders and the Borrower. Subject to the terms of the following sentence, the Borrower may replace the
Letter of Credit Issuer for any reason upon written notice to the Administrative Agent and the Letter of Credit Issuer and the Borrower
may add Letter of Credit Issuers at any time upon notice to the Administrative Agent and with the agreement of such new Letter of Credit
Issuer. If the Letter of Credit Issuer shall resign or be replaced, or if the Borrower shall decide to add a new Letter of Credit Issuer
under this Agreement, then the Borrower may appoint a successor issuer of Letters of Credit or a new Letter of Credit Issuer, as the case
may be, with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), whereupon such successor
issuer shall succeed to the rights, powers and duties of the replaced or resigning Letter of Credit Issuer under this Agreement and the
other Credit Documents, or such new issuer of Letters of Credit shall be granted the rights, powers and duties of a Letter of Credit Issuer
hereunder, and the term “Letter of Credit Issuer” shall mean such successor or such new issuer of Letters of Credit effective
upon such appointment. At the time such resignation or replacement shall become effective, the Borrower shall pay to the resigning or
replaced Letter of Credit Issuer all accrued and unpaid fees pursuant to Sections 4.1(b) and 4.1(d). The acceptance of any appointment
as a Letter of Credit Issuer hereunder, whether as a successor issuer or new issuer of Letters of Credit in accordance with this Agreement,
shall be evidenced by an agreement entered into by such new or successor issuer of Letters of Credit, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such agreement, such new or successor issuer of Letters of Credit
shall become a “Letter of Credit Issuer” hereunder. After the resignation or replacement of a Letter of Credit Issuer hereunder,
the resigning or replaced Letter of Credit Issuer shall remain a party hereto and shall continue to have all the rights and obligations
of a Letter of Credit Issuer under this Agreement and the other Credit Documents with respect to Letters of Credit issued by it prior
to such resignation or replacement, but shall not be required to issue additional Letters of Credit or amend or renew existing Letters
of Credit. In connection with any resignation or replacement pursuant to this clause (a) (but, in case of any such resignation, only
to the extent that a successor issuer of Letters of Credit shall have been appointed), either (i) the Borrower, the resigning or
replaced Letter of Credit Issuer and the successor issuer of Letters of Credit shall arrange to have any outstanding Letters of Credit
issued by the resigning or replaced Letter of Credit Issuer replaced with Letters of Credit issued by the successor issuer of Letters
of Credit or (ii) the Borrower shall cause the successor issuer of Letters of Credit, if such successor issuer is reasonably satisfactory
to the replaced or resigning Letter of Credit Issuer, to issue “back-stop” Letters of Credit naming the resigning or replaced
Letter of Credit Issuer as beneficiary for each outstanding Letter of Credit issued by the resigning or replaced Letter of Credit Issuer,
which new Letters of Credit shall have a face amount equal to the Letters of Credit being back-stopped, and the sole requirement for drawing
on such new Letters of Credit shall be a drawing on the corresponding back-stopped Letters of Credit. After any resigning or replaced
Letter of Credit Issuer’s resignation or replacement as Letter of Credit Issuer, the provisions of this Agreement relating to a
Letter of Credit Issuer shall inure to its benefit as to any actions taken or omitted to be taken by it (A) while it was a Letter
of Credit Issuer under this Agreement or (B) at any time with respect to Letters of Credit issued by such Letter of Credit Issuer.
(b) To
the extent that there are, at the time of any resignation or replacement as set forth in clause (a) above, any outstanding
Letters of Credit, nothing herein shall be deemed to impact or impair any rights and obligations of any of the parties hereto with
respect to such outstanding Letters of Credit (including, without limitation, any obligations related to the payment of fees or the
reimbursement or funding of amounts drawn), except that the Borrower, the resigning or replaced Letter of Credit Issuer and the
successor issuer of Letters of Credit shall have the obligations regarding outstanding Letters of Credit described in clause
(a) above.
3.7 Role
of Letter of Credit Issuer. Each Revolving Credit Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit, the Letter of Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering any such document. None of the Letter of Credit Issuer, any
Related Party of the Letter of Credit Issuer, the Administrative Agent, any of their respective Affiliates or any correspondent,
participant or assignee of the Letter of Credit Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Required Lenders or the Required Revolving Credit Lenders, as
applicable, (ii) any action taken or
omitted in the absence of gross negligence, bad faith or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided
that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may
have against the beneficiary or transferee at law or under any other agreement. None of the Letter of Credit Issuer, any Related
Party of the Letter of Credit Issuer, the Administrative Agent, any of their respective Affiliates or any correspondent, participant
or assignee of the Letter of Credit Issuer shall be liable or responsible for any of the matters described in Section 3.3(d); provided
that anything in such Section to the contrary notwithstanding, the Borrower may have a claim against the Letter of Credit
Issuer, and the Letter of Credit Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower caused by the Letter of Credit Issuer’s willful
misconduct or gross negligence, as determined in a final non-appealable judgment of a court of competent jurisdiction, or the Letter
of Credit Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit (as determined by a court
of competent jurisdiction in a final and non-appealable order). In furtherance and not in limitation of the foregoing, the Letter of
Credit Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(a) If,
as of the Letter of Credit Maturity Date, there are any Letter of Credit Obligations, the Borrower shall promptly (and in any event not
later than the following Business Day) Cash Collateralize the Letter of Credit Obligations that for any reason remain outstanding. Section 2.16
and Section 5.2 set forth certain additional circumstances under which Cash Collateral may be, or is required to be, delivered hereunder.
(b) If
any Event of Default shall occur and be continuing, the Required Revolving Credit Lenders may require that the Letter of Credit Obligations
be Cash Collateralized; provided that, upon the occurrence of an Event of Default referred to in Section 11.5, the Borrower
shall immediately Cash Collateralize the Letters of Credit then outstanding and no notice or request by or consent from the Required Lenders
shall be required.
(c) For
purposes of this Agreement, “Cash Collateralize” means to pledge and deposit with or deliver to the Collateral
Agent, for the benefit of the Letter of Credit Issuer collateral for the Letter of Credit Obligations cash or deposit account
balances (“Cash Collateral”) in an amount equal to the amount of the Letter of Credit Obligations required to be
Cash Collateralized pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the
Letter of Credit Issuer (which documents are hereby consented to by the Revolving Credit Lenders). Derivatives of such terms have
corresponding meanings. The Borrower hereby grants to the Collateral Agent, for the benefit of the Letter of Credit Issuer and the
Letter of Credit Participants, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any
Person other than the Collateral Agent, the Letter of Credit Issuer or the Letter of Credit Participants, other than any Liens
permitted under Section 10.2, or that the total amount of such Cash Collateral is less than the amount required to be delivered
as described above, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Collateral Agent
additional Cash Collateral in an amount sufficient to eliminate such deficiency. Cash Collateral shall be maintained in blocked,
interest bearing deposit accounts with the Collateral Agent.
(d) Notwithstanding
anything to the contrary contained in this Agreement, Cash Collateral provided under this Agreement in respect of Letters of Credit shall
be held and applied to the satisfaction of the specific Letter of Credit Obligations, obligations to fund participations therein, any
interest accrued on such obligation and other obligations for which the Cash Collateral was so provided, prior to any other application
of such property as may otherwise be provided for herein.
(e) Cash
Collateral (or the appropriate portion thereof) provided to reduce or secure any obligations herein shall be released promptly following
(i) the elimination of the applicable obligation giving rise thereto or (ii) the determination by the Administrative Agent and
the Letter of Credit Issuer that there exists excess Cash Collateral; provided, however that (x) any such release shall be
without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred
under the Credit Documents and the other applicable provisions of the Credit Documents, and (y) the Person providing Cash Collateral
and the Letter of Credit Issuer may agree that Cash Collateral shall not be released but instead held to support anticipated obligations.
3.9 Conflict
with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
3.10 Letters
of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support
of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the Letter of Credit
Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of
Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives
substantial benefits from the businesses of such Restricted Subsidiaries.
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(a)
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The Letter of Credit Issuer shall be under no obligation to issue any Letter of Credit if:
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(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit
Issuer from issuing such Letter of Credit, or any requirement of law applicable to the Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit,
or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement
(for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon
the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of
Credit Issuer in good faith deems material to it;
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(ii)
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the issuance of such Letter of Credit would violate one or more
policies or procedures of the Letter of Credit Issuer;
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(iii) except
as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount
less than $100,000, in the case of a commercial Letter of Credit, or $10,000, in the case of a standby Letter of Credit;
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(iv)
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such Letter of Credit is denominated in a currency other than Dollars; or
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(v)
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such Letter of Credit contains any provisions for automatic
reinstatement of the Stated Amount after any drawing thereunder.
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(b) The
Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have
no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of Credit. Unless otherwise expressly agreed by the Letter of Credit
Issuer and the Borrower when a Letter of Credit is issued, each Letter of Credit shall be governed by, and shall be construed in accordance
with, the laws of the State of New York.
(c) The
Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Section 12 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully
as if the term “Administrative Agent” as used in Section 12 included the Letter of Credit Issuer with respect to such
acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
3.12 Applicability
of ISP and UCP. Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued,
(i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to
each commercial Letter of Credit. Notwithstanding the foregoing, the Letter of Credit Issuer shall not be responsible to the Borrower
for, and the Letter of Credit Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction
of the Letter of Credit Issuer required or permitted under any Applicable Law, order, or practice that is required or permitted to be
applied to any Letter of Credit or this Agreement, including the Applicable Law or any order of a jurisdiction where the Letter of Credit
Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements,
or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services
Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses
such law or practice.
SECTION 4. Fees;
Commitment Reductions and Terminations.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender (in each case pro rata according
to the respective Revolving Credit Commitments of all such Revolving Credit Lenders) a commitment fee (the “Commitment Fee”)
in Dollars that shall accrue daily from and including the Closing Date to but excluding the Revolving Credit Termination Date. Each such
Commitment Fee shall be payable (x) quarterly in arrears on the last Business Day of each March, June, September and December (for
the three-month period (or portion thereof) ended on such day for which no payment has been received) and (y) on the Revolving Credit
Termination Date (for the period ended on such date for which no payment has been received pursuant to clause (x) above), and shall
be computed for each day during such period at a rate per annum equal to the Commitment Fee Rate in effect on such day to be calculated
based on the actual amount of the Available Revolving Credit Commitment (in each case, assuming for this purpose that there is no reference
to Swingline Loans in clause (b)(i) of the definition of Available Revolving Credit Commitment) in effect on such day.
(b) Without
duplication, the Borrower agrees to pay to the Letter of Credit Issuer for its own account a fronting fee (the “Fronting Fee”)
with respect to each Letter of Credit issued by such Letter of Credit Issuer on the Borrower’s behalf, computed at the rate for
each day for the period from and including the date of issuance of such Letter of Credit to but excluding the termination or expiration
date of such Letter of Credit equal to 0.125% per annum (or such other percentage per annum as may be agreed between the applicable Letter
of Credit Issuer and the Borrower), times the actual daily Stated Amount of such Letter of Credit. The Fronting Fee shall be due
and payable quarterly in arrears on the last Business Day of each March, June, September and December, and on the Revolving Credit
Termination Date.
(c) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender, pro rata according to the
Letter of Credit Exposure of such Lender, a fee in Dollars in respect of each Letter of Credit (the “Letter of Credit Fee”),
for the period from and including the date of issuance of such Letter of Credit to but excluding the termination or expiration date of
such Letter of Credit, computed at the per annum rate for each day equal to (x) the Applicable Margin for Eurodollar Loans then
in effect for Revolving Credit Loans times (y) the actual daily Stated Amount of such Letter of Credit. Each Letter of Credit
Fee shall be due and payable quarterly in arrears on the first Business Day following each March, June, September and December and
on the Revolving Credit Termination Date. If there is any change in the Applicable Margin during any quarter, the daily maximum amount
of each Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that
such Applicable Margin was in effect.
(d) The
Borrower agrees to pay directly to each Letter of Credit Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the Letter of Credit Issuer relating to Letters of Credit as from time
to time in effect. Such customary fees and standard costs and charges are due and payable within 10 Business Days after demand and are
nonrefundable.
(e) The
Borrower agrees to pay to the Administrative Agent the administrative agency fees in the amounts and on the dates as set forth in the
Fee Letter.
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4.2
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Voluntary Reduction of Commitments.
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(a) Upon
the prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at the Administrative
Agent’s Office (in which case the Administrative Agent shall promptly notify each of the Lenders), the Borrower shall have the
right, without premium or penalty, on any day, permanently to terminate or reduce the Commitments of any Class, as determined by the
Borrower, in whole or in part; provided that (a) any such notice shall be received by the Administrative Agent not later
than 1:00 p.m., at least two Business Days prior to the proposed date of termination or reduction, (b) any such termination or
reduction shall apply proportionately and permanently to reduce the Commitments of each of the Lenders within such Class, except
that, notwithstanding the foregoing, (1) the Borrower may allocate any termination or reduction of Commitments among Classes of
Commitments at its direction (including, for the avoidance of doubt, to the Commitments with respect to any Class of Extended
Revolving Credit Commitments without any termination or reduction of the Commitments with respect to any Existing Revolving Credit
Commitments of the same Specified Existing Revolving Credit Commitment Class) and (2) in connection with the establishment on
any date of any Extended Revolving Credit Commitments pursuant to Section 2.15, the Existing Revolving Credit Commitments of
any one or more Lenders providing any such Extended Revolving Credit Commitments on such date shall be reduced in an amount equal to
the amount of Specified Existing Revolving Credit Commitments so extended on such date (or, if agreed by the Borrower and the
Lenders providing such Extended Revolving Credit Commitments, by any greater amount so long as (a) a proportionate reduction of
the Specified Existing Revolving Credit Commitments has been offered to each Lender to whom the applicable Revolving Credit
Extension Request has been made (which may be conditioned upon such Lender becoming an Extending Lender), and (b) the Borrower
prepays the Existing Revolving Credit Loans of such Class owed to such Lenders providing such Extended Revolving Credit
Commitments to the extent necessary to ensure that, after giving pro forma effect to such repayment or reduction, the Existing
Revolving Credit Loans of such Class are held by the Lenders of such Class on a pro rata basis in accordance with
their Existing Revolving Credit Commitments of such Class after giving pro forma effect to such reduction) (provided that
(x) after giving pro forma effect to any such reduction and to the repayment of any Loans made on such date, the aggregate
amount of the revolving credit exposure of any such Lender does not exceed the Existing Revolving Credit Commitment thereof (such
revolving credit exposure and Revolving Credit Commitment being determined in each case, for the avoidance of doubt, exclusive of
such Lender’s Extended Revolving Credit Commitment and any exposure in respect thereof) and (y) for the avoidance of
doubt, any such repayment of Loans contemplated by the preceding clause shall be made in compliance with the requirements of
Section 5.3(a) with respect to the ratable allocation of payments hereunder, with such allocation being determined after
giving pro forma effect to any conversion or exchange pursuant to Section 2.15 of Existing Revolving Credit Commitments and
Existing Revolving Credit Loans into Extended Revolving Credit Commitments and Extended Revolving Credit Loans respectively, and
prior to any reduction being made to the Commitment of any other Lender), (c) any partial reduction pursuant to this
Section 4.2 shall be in an aggregate amount of at least $1,000,000 or any whole multiple of $1,000,000 in excess thereof,
(d) after giving pro forma effect to such termination or reduction and to any prepayments of Loans or cancellation or Cash
Collateralization of Letters of Credit made on the date thereof in accordance with this Agreement, the aggregate amount of the
Lenders’ revolving credit exposures for such Class shall not exceed the Total Revolving Credit Commitment for such Class,
(e) after giving pro forma effect to such termination or
reduction and to any prepayments of Additional/Replacement Revolving Credit Loans of any Class or cancellation or cash
collateralization of letters of credit made on the date thereof in accordance with this Agreement, the aggregate amount of such
Lenders’ revolving credit exposures for such Class shall not exceed the Total Additional/Replacement Revolving Credit
Commitment for such Class and the aggregate amount of the Lenders’ revolving credit exposure for all Classes shall not
exceed the Total Revolving Credit Commitment for all Classes, and (f) if, after giving pro forma effect to any reduction
hereunder, the Letter of Credit Commitment or the Swingline Commitment exceeds the sum of the Total Revolving Credit Commitment and
the Total Additional/Replacement Revolving Credit Commitment (if any), such Commitment shall be automatically reduced by the amount
of such excess.
(b) Upon
at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent
and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the applicable Revolving Credit
Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Sub-Commitment, in whole
or in part; provided that, after giving pro forma effect to such termination or reduction, the Letter of Credit Obligations shall
not exceed the Letter of Credit Sub-Commitment.
(c) Notwithstanding
anything to the contrary set forth in Section 4.2(a), the Borrower may terminate the unused amount of the Commitment of a Defaulting
Lender upon not less than two (2) Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders
thereof), and in such event the provisions of Section 2.16(f) will apply to all amounts thereafter paid by the Borrower for
the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts);
provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent,
any Letter of Credit Issuer, any Swingline Lender or any Lender may have against such Defaulting Lender.
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4.3
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Mandatory Termination of Commitments.
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(a) The
Initial Term Loan Commitments described in clause (a) of the definition thereof shall terminate upon the occurrence of the Closing
Date, the Initial Term Loan Commitments described in clause (b) of the definition thereof shall terminate upon the occurrence of
the First Incremental Agreement Effective Date and (c) the Initial Term Loan Commitments described in clause (c) of the definition
thereof shall terminate upon the occurrence of the Second Incremental Agreement Effective Date.
(b) The
Total 2019 Incremental Term Loan Commitment shall terminate upon the occurrence of the Third
Incremental Agreement Effective Date.
(c) (b) The
Total Revolving Credit Commitment shall terminate at 2:00 p.m. (New York City time) on the Revolving Credit Maturity Date.
(d) (c) The
Swingline Commitments shall terminate at 2:00 p.m. (New York City time) on the Swingline Maturity Date.
(e) (d) The
Incremental Term Loan Commitment for any Class shall, unless otherwise provided in the documentation governing such Incremental
Term Loan Commitment, terminate at 5:00 p.m. (New York City time) on the Incremental Facility Closing Date for such Class.
(f) (e) The
Additional/Replacement Revolving Credit Commitment for any Class shall terminate at 5:00 p.m. (New York City time) on the maturity
date for such Class specified in the documentation governing such Class.
(g) (f) The
Extended Loan/Commitment for any Extension Series shall terminate at 5:00 p.m. (New York City time) on the maturity date for
such Class specified in the Extension Agreement.
SECTION 5. Payments.
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5.1
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Voluntary Prepayments.
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(a) The
Borrower shall have the right to prepay Term Loans, Revolving Credit Loans, Extended Revolving Credit Loans and
Additional/Replacement Revolving Credit Loans and Swingline Loans, without, except as set forth in Section 5.1(b), premium or
penalty, in whole or in part from time to time on the following terms and conditions: (1) the Borrower shall give the
Administrative Agent at the Administrative Agent’s Office written notice (or telephonic notice promptly confirmed in writing)
of its intent to make such prepayment, the amount of such prepayment and in the case of Eurodollar Loans, the specific
Borrowing(s) pursuant to which made, which notice shall be in the form attached hereto as Exhibit N and be given by the
Borrower no later than 1:00 p.m. (New York City time) (x) on the date of such prepayment (in the case of ABR Loans,
including Swingline Loans) or (y) three Business Days prior to (in the case of Eurodollar Loans), and, in each case, the
Administrative Agent shall promptly notify each of the relevant Lenders or the relevant Swingline Lender, as the case may be,
(2) each partial prepayment of any Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple of $500,000 and in
an aggregate principal amount of at least $1,000,000 and each partial prepayment of Swingline Loans shall be in a multiple of
$100,000 and in an aggregate principal amount of at least $100,000; provided that no partial prepayment of Eurodollar Loans
made pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount for Eurodollar Loans and (3) any prepayment of Eurodollar Loans pursuant to this
Section 5.1 on any day other than the last day of an Interest Period applicable thereto shall be subject to compliance by the
Borrower with the applicable provisions of Section 2.11. Each such notice shall specify the date and amount of such prepayment
and the Class(es) and Type(s) of Loans to be prepaid. Each prepayment in respect of any Class of Term Loans pursuant to
this Section 5.1 shall be applied to reduce the Repayment Amounts in such order as the Borrower may determine and may be
applied to any Class of Term Loans as directed by the Borrower. For the avoidance of doubt, the Borrower may (i) prepay
Term Loans of an Existing Term Loan Class pursuant to this Section 5.1 without any requirement to prepay Extended Term
Loans that were converted or exchanged from such Existing Term Loan Class and (ii) prepay Extended Term Loans pursuant to
this Section 5.1 without any requirement to prepay Term Loans of an Existing Term Loan Class that were converted or
exchanged for such Extended Term Loans. In the event that the Borrower does not specify the order in which to apply prepayments to
reduce Repayment Amounts or as between Classes of Term Loans, the Borrower shall be deemed to have elected that such proceeds be
applied to reduce the Repayment Amounts in direct order of maturity and/or a pro rata basis among Term Loan Classes. All
prepayments under this Section 5.1 shall also be subject to the provisions of Sections 5.2(d) and 5.2(e). At the
Borrower’s election in connection with any prepayment pursuant to this Section 5.1, such prepayment shall not be applied
to any Loan of a Defaulting Lender.
(b) Notwithstanding
anything to the contrary contained in this Agreement, at the time of the effectiveness of any Repricing Transaction with
respect to the 2019 Incremental Term Loans (including any Incurrence of Incremental Term
Loans pursuant to the proviso of Section 2.14(b) in respect of Initial2019
Incremental Term Loans) that is consummated prior to the six-monthtwelve-month anniversary
of the SecondThird Incremental
Agreement Effective Date (the “Prepayment Premium Period”), the Borrower agrees to pay to the Administrative
Agent, for the ratable account of each Lender with outstanding Initial2019
Incremental Term Loans, a fee in an amount equal to 1.0% of (x) in the case of a
Repricing Transaction of the type described in clause (a) of the definition thereof, the aggregate principal amount of
all Initial2019
Incremental Term Loans prepaid (or converted or exchanged) in connection with such Repricing
Transaction and (y) in the case of a Repricing Transaction described in clause (b) of the definition thereof, the
aggregate principal amount of all Initial2019
Incremental Term Loans outstanding on such date that are subject to an effective pricing
reduction pursuant to such Repricing Transaction. Such fees shall be due and payable upon the date of the effectiveness of such
Repricing Transaction. For the avoidance of doubt, on and after the date that is sixtwelve months
following the SecondThird Incremental
Agreement Effective Date, no fee shall be payable pursuant to this Section 5.1(b).
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5.2
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Mandatory Prepayments.
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(a)
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Term Loan Prepayments.
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(i) On
each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after the receipt of Net Cash Proceeds from
a Debt Incurrence Prepayment Event and within five Business Days after the receipt of Net Cash Proceeds in connection with the occurrence
of any other Prepayment Event, offer to prepay (or, in the case of a Debt Incurrence Prepayment Event arising from (A) the Incurrence
of Incremental Term Loans in reliance on clause (x) of the proviso to Section 2.14(b), (B) the Incurrence of Permitted
Additional Debt in reliance on clause (x) of Section 10.1(u)(i) or (C) to the extent relating to Term Loans, the Incurrence
of any Credit Agreement Refinancing Indebtedness (any of the foregoing, a “Specified Debt Incurrence Prepayment Event”),
prepay), in accordance with Sections 5.2(c) and 5.2(d) below, without premium or penalty (other than to the extent any such
Debt Incurrence Prepayment Event would constitute a Repricing Transaction), a principal amount of Term Loans in an amount equal to 100%
of the Net Cash Proceeds from such Prepayment Event; provided that, in the case of Net Cash Proceeds from an Asset Sale Prepayment
Event or a Recovery Prepayment Event, the Borrower may use cash in an amount not to exceed the amount of such Net Cash Proceeds to prepay,
redeem, defease, acquire repurchase or make a similar payment to any Permitted Equal Priority Refinancing Debt or any Permitted Additional
Debt secured by a Lien on the Collateral that ranks equal in priority to the Liens on such Collateral securing the Obligations (but without
regard to the control of remedies), in each case the documentation with respect to which requires the issuer or borrower under such Indebtedness
to prepay or make an offer to prepay, redeem, repurchase, defease, acquire or satisfy and discharge such Indebtedness with the proceeds
of such Prepayment Event, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds multiplied
by (2) a fraction, the numerator of which is the outstanding principal amount of the Permitted Equal Priority Refinancing Debt and
Permitted Additional Debt secured by a Lien on the Collateral that ranks equal in priority to the Liens on such Collateral securing the
Obligations (but without regard to control of remedies) and with respect to which such a requirement to prepay or make an offer to prepay,
redeem, repurchase, defease, acquire or satisfy and discharge exists and the denominator of which is the sum of the outstanding principal
amount of such Permitted Equal Priority Refinancing Debt and Permitted Additional Debt and the outstanding principal amount of Term Loans;
provided, further, that in the case of Net Cash Proceeds from an Asset Sale Prepayment Event
or a Recovery Prepayment Event, (A) the percentage in this Section 5.2(a)(i) shall be reduced to 50.0% if the Borrower’s
Consolidated First Lien Debt to Consolidated EBITDA Ratio, as
such ratio is calculated as of the last day of the Test Period most recently ended on or prior to
the date the Net Cash Proceeds are required to be offered, is less than or equal to 4.75 to 1.00 but greater
than 4.25 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(i) if the Borrower’s
Consolidated First Lien Debt to Consolidated EBITDA Ratio, as such
ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date
the Net Cash Proceeds are required to be offered, is less than or equal to 4.25 to 1.00..
(ii) Not
later than the date that is ten Business Days following the date Section 9.1 Financials are required to be delivered under
Section 9.1(a) (commencing with the Section 9.1 Financials to be delivered with respect to the fiscal year ending
December 31, 2018), the Borrower shall offer to prepay, in accordance with Sections 5.2(c) and 5.2(d) below, without
premium or penalty, an aggregate principal amount of Term Loans equal to (x) 50.0% of Excess Cash Flow for such fiscal year minus
(y) at the Borrower’s option, (1) the aggregate principal amount of Term Loans voluntarily prepaid pursuant to
Section 5.1, (2) the aggregate principal amount of Revolving Credit Loans, Extended Revolving Credit Loans and
Additional/Replacement Revolving Credit Loans and other revolving loans that are effective in reliance on
Section 10.1(a) or Section 10.1(u) voluntarily prepaid pursuant to Section 5.1 to the extent accompanied by
a permanent reduction of such Revolving Credit Commitments, Incremental Revolving Credit Commitment Increases, Extended
Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments or other revolving commitments, as applicable, in
an equal amount pursuant to Section 4.2 (or equivalent provision governing such revolving credit facility) and (3) the
aggregate amount of cash consideration paid by any Purchasing Borrower Party (other than Holdings) to effect any assignment to it of
Term Loans pursuant to Section 13.6(g) (but only to the extent that such Term Loans have been cancelled) but excluding the
aggregate principal amount of any such voluntary prepayments and any such assignments made with the proceeds of Incurrences of
long-term Indebtedness or issuances of Capital Stock), in each case during such fiscal year or after year-end and prior to the time
such prepayment pursuant to this Section 5.2(a)(ii) is due; provided that, in the case that Excess Cash Flow is
required to be offered to prepay any Term Loans, the Borrower may use cash in an amount not to exceed the amount of such Excess Cash
Flow required to be offered to prepay the Term Loans to prepay, redeem, defease, acquire, repurchase or make a similar payment to
any Permitted Equal Priority Refinancing Debt or any Permitted Additional Debt secured by a Lien on the Collateral that ranks equal
in priority to the Liens on such Collateral securing the Obligations (but without regard to the control of remedies), in each case
the documentation with respect to which requires the issuer or borrower under such Indebtedness to prepay or make an offer to
prepay, redeem, repurchase, defease, acquire or satisfy and discharge such Indebtedness with a percentage of Excess Cash Flow, in
each case in an amount not to exceed the product of (1) the amount of such Excess Cash Flow required to be offered to prepay
the Term Loans multiplied by (2) a fraction, the numerator of which is the outstanding principal amount of the Permitted
Equal Priority Refinancing Debt and Permitted Additional Debt secured by a Lien on the Collateral that ranks equal in priority to
the Liens on such Collateral securing the Obligations (but without regard to control of remedies) and with respect to which such a
requirement to prepay or make an offer to prepay, redeem, repurchase, defease, acquire or satisfy and discharge exists and the
denominator of which is the sum of the outstanding principal amount of such Permitted Equal Priority Refinancing Debt and Permitted
Additional Debt and the outstanding principal amount of Term Loans; provided, further, that (A) the percentage in this
Section 5.2(a)(ii) shall be reduced to 25% if the Borrower’s Consolidated First Lien Debt to Consolidated EBITDA
Ratio for the fiscal year ended prior to such prepayment date is less than or equal to 4.75 to 1.00 but greater than 4.25 to 1.00
and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the Consolidated First Lien
Debt to Consolidated EBITDA Ratio for the fiscal year ended prior to such prepayment date is less than or equal to 4.25 to 1.00. Any
prepayment amounts credited pursuant to subclause (y) above against such amount in subclause (x) above shall be without
duplication of any such credit in any prior or subsequent fiscal year.
(b) Repayment
of Revolving Credit Loans. If, on any date, the aggregate amount of the Lenders’ Revolving Credit Exposures in respect of any
Class of Revolving Credit Loans for any reason exceeds 100% of the Revolving Credit Commitment of such Class then in effect,
the Borrower shall forthwith repay on such date the principal amount of Swingline Loans of such Class, and after all such Swingline Loans
have been paid in full, the Revolving Credit Loans of such Class in an amount equal to such excess. If, after giving pro forma effect
to the prepayment of all outstanding Swingline Loans and Revolving Credit Loans of such Class, the Revolving Credit Exposures of such
Class exceeds the Revolving Credit Commitment of such Class then in effect, the Borrower shall Cash Collateralize the Letters
of Credit outstanding in relation to such Class to the extent of such excess.
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(c)
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Application to Repayment Amounts.
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(i) Subject
to clause (ii) of this Section 5.2(c), the first proviso to Section 5.2(a)(i) and the first proviso to
Section 5.2(a)(ii), (A) each prepayment of Term Loans required by Sections 5.2(a)(i) and (ii) (other than in
connection with a Debt Incurrence Prepayment Event) shall be allocated to the Classes of Term Loans outstanding, pro rata,
based upon the applicable remaining Repayment Amounts due in respect of each such Class of Term Loans (excluding any
Class of Term Loans that has agreed to receive a less than pro rata share of any such mandatory prepayment and taking
into account any reduction in the amount of any required Excess Cash Flow payment to any Class of Term Loans that have been
subject to a Section 13.6(g) transaction), shall be applied pro rata to Lenders within each Class, based upon the
outstanding principal amounts owing to each such Lender under each such Class of Term Loans and shall be applied to reduce such
scheduled Repayment Amounts within each such Class in accordance with Section 5.2(d)(ii) and (B) each
prepayment of Term Loans required by Section 5.2(a)(i) in connection with a Debt Incurrence Prepayment Event shall be
allocated to any Class of Term Loans outstanding as directed by the Borrower (subject to the requirement that the proceeds of
any Specified Debt Incurrence Prepayment Event shall in all cases be applied to prepay or repay the applicable Refinanced
Indebtedness), shall be applied pro rata to Lenders within each such Class, based upon the outstanding principal amounts owing to
each such Lender under each such Class of Term Loans and shall be applied to reduce such scheduled Repayment Amounts within
each such Class in accordance with Section 5.2(d)(ii); provided that, with respect to the allocation of such
prepayments under clause (A) above only, between an Existing Term Loan Class and Extended Term Loans of the same Extension
Series, the Borrower may allocate such prepayments as the Borrower may specify, subject to the limitation that the Borrower shall
not allocate to Extended Term Loans of any Extension Series any such mandatory prepayment under such clause (A) unless
such prepayment is accompanied by at least a pro rata prepayment, based upon the applicable remaining Repayment Amounts due in
respect thereof, of the Term Loans of the Existing Term Loan Class, if any, from which such Extended Term Loans were converted or
exchanged (or such Term Loans of the Existing Term Loan Class have otherwise been repaid in full).
(ii) With
respect to each such prepayment required by Section 5.2(a)(i) and Section 5.2(a)(ii) (other than any Debt
Incurrence Prepayment Event), (A) the Borrower will, not later than the date specified in Section 5.2(a) for offering
to make such prepayment, give the Administrative Agent, written notice requesting that the Administrative Agent provide notice of
such prepayment to each Lender and the Administrative Agent will promptly provide such notice to each Lender, (B) other than if
such prepayment arises due to a Specified Debt Incurrence Prepayment Event, each Lender of Term Loans will have the right to refuse
any such prepayment by giving written notice of such refusal to the Administrative Agent and the Borrower within three Business Days
after such Lender’s receipt of notice from the Administrative Agent of such prepayment, and to the extent any such prepayment
is so refused, such amounts may be retained by the Borrower (the “Retained Refused Proceeds”) and
(C) the Borrower will make all such prepayments not so
refused upon the tenth Business Day after the Lender received first notice of repayment from the Administrative Agent.
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(d)
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Application to Term Loans.
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(i) With
respect to each prepayment of Term Loans elected by the Borrower pursuant to Section 5.1 or pursuant to a Specified Debt Incurrence
Prepayment Event, such prepayments shall be applied to reduce Repayment Amounts in such order as the Borrower may specify (or, if not
specified, in direct order of maturity) and the Borrower may designate the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant
to which made; provided that the Borrower pays any amounts, if any, required to be paid pursuant to Section 2.11 with respect
to prepayments of Eurodollar Loans made on any date other than the last day of the applicable Interest Period. In the absence of a designation
by the Borrower as described in the preceding sentence, the Administrative Agent, shall, subject to the above, make such designation in
a manner that minimizes the amount of payments required to be made by the Borrower pursuant to Section 2.11.
(ii) With
respect to each prepayment of Term Loans by the Borrower required pursuant to Section 5.2(a) (other than in respect of a Specified
Debt Incurrence Prepayment Event) such prepayments shall be applied to reduce Repayment Amounts in direct order of maturity and on a pro
rata basis to the then outstanding Term Loans (other than any Class of Term Loans that has agreed to receive a less than pro
rata share of any such mandatory prepayment) being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurodollar
Loans; provided that, if no Lender exercises the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 5.2(c)(ii),
then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are
ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans in a manner that minimizes the amount
of any payments required to be made by the Borrower pursuant to Section 2.11.
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(e)
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Application to Revolving Credit Loans; Mandatory Commitment Reduction.
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(i) With
respect to each prepayment of Revolving Credit Loans, Extended Revolving Credit Loans and Additional/Replacement Revolving Credit
Loans elected by the Borrower pursuant to Section 5.1 or required by Section 5.2(b), the Borrower may designate
(i) the Class and Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which such Loans
were made and (ii) the Class of Revolving Credit Loans, Extended Revolving Credit Loans or Additional/Replacement
Revolving Credit Loans to be prepaid; provided that (x) Eurodollar Loans may be designated for prepayment pursuant to
this Section 5.2 only on the last day of an Interest Period applicable thereto unless all Eurodollar Loans with Interest
Periods ending on such date of required prepayment and all ABR Loans have been paid in full; (y) each prepayment of any Loans
made pursuant to a Borrowing shall be applied pro rata among such Loans of such Class (except that any prepayment made
in connection with a reduction of the Commitments of such Class pursuant to Section 4.2 shall be applied pro rata based on
the amount of the reduction in the Commitments of such Class of each applicable Lender); and (z) notwithstanding the
provisions of the preceding clause (y), at the option of the Borrower, no prepayment made pursuant to Section 5.1 or
Section 5.2(b) of Revolving Credit Loans, Extended Revolving Credit Loans or Additional/Replacement Revolving Credit Loans
of any Class shall be applied to the Loans of any Defaulting Lender. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in a manner that
minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.11.
(ii) With
respect to each mandatory reduction and termination of Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments
(and any previously extended Extended Revolving Credit Commitments) required by either clause (i) or (ii) of the proviso to
Section 2.14(b), by Section 10.1(u)(i) or in connection with the Incurrence of any Credit Agreement Refinancing Indebtedness
Incurred to Refinance any Revolving Credit Commitments, Additional/Replacement Revolving Credit Commitments and/or Extended Revolving
Credit Commitments, the Borrower may designate (A) the Classes of Commitments to be reduced and terminated and (B) the corresponding
Classes of Loans to be prepaid; provided that (x) any such reduction and termination shall apply proportionately and permanently
to reduce the Commitments of each of the Lenders within any such Class and (y) after giving pro forma effect to such termination
or reduction and to any prepayments of Loans or cancellation or cash collateralization of letters of credit made on the date of each
such reduction and termination in accordance with this Agreement, the aggregate amount of such Lenders’ credit exposures shall
not exceed the remaining Commitments of such Lenders’ in respect of the Class reduced and terminated. In connection with any
such termination or reduction, to the extent necessary, the participations hereunder in outstanding Letters of Credit and Swingline Loans
may be required to be reallocated and related loans outstanding prepaid and then reborrowed, in each case in the manner contemplated
by Section 2.14(f)(ii) (as modified to account for a termination or reduction, as opposed to an increase, of such Commitment).
(f) Eurodollar
Interest Periods. In lieu of making any payment pursuant to this Section 5.2 in respect of any Eurodollar Loan other than on
the last day of the Interest Period thereof, so long as no Default or Event of Default shall have occurred and be continuing, the Borrower
at its option may deposit with the Administrative Agent an amount equal to the amount of the Eurodollar Loan to be prepaid and such Eurodollar
Loan shall be repaid on the last day of the Interest Period therefor in the required amount. Such deposit shall be held by the Administrative
Agent in a corporate time deposit account established on terms reasonably satisfactory to the Administrative Agent, earning interest at
the then-customary rate for accounts of such type. Such deposit shall constitute cash collateral for the Obligations; provided
that the Borrower may at any time direct that such deposit be applied to make the applicable payment required pursuant to this Section 5.2.
(i) No
prepayment shall be required pursuant to Section 5.2(a)(i) (except to the extent such prepayment arises due to a Debt Incurrence
Prepayment Event) unless and until the amount at any time of Net Cash Proceeds from Prepayment Events required to be offered at or prior
to such time pursuant to such Section and not yet offered at or prior to such time to prepay Term Loans pursuant to such Section exceeds
(i) $5,000,000 for any single Prepayment Event or series of related Prepayment Events and (ii) $10,000,000 in the aggregate
for all such Prepayment Events in any fiscal year, at which time the amount in excess of $5,000,000 or $10,000,000, as the case may be,
will be offered to be prepaid as provided in Section 5.2(a)(i), with the date of receipt of such Net Cash Proceeds being deemed for
such purpose to be the date such thresholds set forth in clauses (i) and (ii) of this clause (g) are met.
(ii) No
prepayment shall be required pursuant to Section 5.2(a)(ii) unless and until the amount of Excess Cash Flow required to be offered
to prepay Term Loans for a fiscal year pursuant to such Section exceeds $2,500,000, at which time the amount in excess of $2,500,000,
will be offered to be prepaid as provided in Section 5.2(a)(ii).
(h) Non-Credit
Party Asset Sales. Notwithstanding any other provisions of this Section 5.2(h), (i) to the extent that any of or all
the Net Cash Proceeds of any asset sale by a Non-Credit Party giving rise to an Asset Sale Prepayment Event (a “Non-Credit
Party Asset Sale”), the Net Cash Proceeds of any Recovery Event from a Non-Credit Party (a “Non-Credit Party
Recovery Event”) or Excess Cash Flow, are prohibited, delayed or restricted by applicable local law, rule or
regulation (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors) from
being repatriated or expatriated to the United States or from being distributed to a Credit Party, the portion of such Net Cash
Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this
Section 5.2(h) but may be retained by the applicable Non-Credit Party so long, but only so long, as the applicable local
law, rule or regulation will not permit repatriation to the United States or expatriation or distribution to a Credit Party
(the Borrower hereby agreeing to cause the applicable Non-Credit Party to promptly take all commercially reasonable actions
available under applicable local law, rule or regulation to permit such repatriation, expatriation or distribution), and once
such repatriation, expatriation or distribution of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the
applicable local law, rule or regulation, such repatriation, expatriation or distribution will be immediately effected and such
repatriated, expatriated or distributed Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than two
Business Days after such repatriation, expatriation or distribution) applied (net of additional taxes payable or reserved against as
a result thereof) to the repayment of the Term Loans (and, if applicable, such other Indebtedness as is contemplated by this
Section 5.2(h)) pursuant to this Section 5.2(h) and (ii) to the extent that the Borrower has determined in good
faith that such repatriation or expatriation of any of or all the Net Cash Proceeds of any Non-Credit Party Asset Sale, any
Non-Credit Party Recovery Event or Excess Cash Flow would have a material adverse tax cost consequence with respect to such Net Cash
Proceeds or Excess Cash Flow (but only for so long as such material adverse tax cost consequence exists), the Net Cash Proceeds or
Excess Cash Flow so affected may be retained by the applicable Non-Credit Party; provided that, in the case of this clause
(ii), on or before the date on which any Net Cash Proceeds from any Non-Credit Party Asset Sale or Non- Credit Party Recovery Event
so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to
Section 5.2(a) (or, in the case of Excess Cash Flow, a date on or before the date that is six months after the date such
Excess Cash Flow would have been so required to be applied to prepayments pursuant to Section 5.2(a)(ii) unless previously
repatriated or expatriated in which case such repatriated or expatriated Excess Cash Flow shall have been promptly applied to the
repayment of the Term Loans pursuant to Section 5.2(a)), (x) the Borrower applies an amount equal to such Net Cash
Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received
by the Borrower rather than such Non-Credit Party, less the amount of additional taxes that would have been payable or reserved
against if such Net Cash Proceeds or Excess Cash Flow had been repatriated or expatriated (or, if less, the Net Cash Proceeds or
Excess Cash Flow that would be calculated if received by such Non-Credit Party) or (y) such Net Cash Proceeds or Excess Cash
Flow are applied to the repayment of Indebtedness of a Non-Credit Party.
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5.3
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Method and Place of Payment.
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(a) All
payments under this Agreement shall be made by the Borrower, without set-off, counterclaim or deduction of any kind. Except as otherwise
specifically provided in this Agreement, all payments by the Borrower under this Agreement shall be made in Dollars to the Administrative
Agent for the ratable account of the applicable Lenders entitled thereto, the applicable Letter of Credit Issuer or the Swingline Lender
(except to the extent payments are to be made directly to such Letter of Credit Issuer or the Swingline Lender), as the case may be, not
later than 2:00 p.m. (New York City time) on the date when due and shall be made in immediately available funds at the Administrative
Agent’s Office it being understood that written, electronic or facsimile notice by the Borrower to the Administrative Agent to make
a payment from the funds in the Borrower’s account at the Administrative Agent’s Office shall constitute the making of such
payment to the extent of such funds held in such account. The Administrative Agent will thereafter cause to be distributed on the same
day (if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York City time) on such day and, if not,
on the next Business Day in the Administrative Agent’s sole discretion) like funds relating to the payment of principal or interest
or Fees ratably to the Lenders entitled thereto or to the Letter of Credit Issuer or the Swingline Lender, as applicable.
(b) For
purposes of computing interest or fees, any payments under this Agreement that are made later than 2:00 p.m. (New York City time)
shall be deemed to have been made on the next succeeding Business Day in the Administrative Agent’s sole discretion (and the Administrative
Agent may extend such deadline in its discretion whether or not such payments are in process). Except as otherwise provided in this Agreement,
whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension
at the applicable rate in effect immediately prior to such extension.
(a) Except
as required by law, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document shall be made
free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority (including any interest, additions to tax and penalties) (collectively, “Taxes”) excluding in the case of
each Lender and each Agent and except as otherwise provided in Section 5.4(f), (A) net income Taxes and franchise Taxes (imposed
in lieu of net income Taxes) imposed on such Agent or such Lender as a result of (i) such Agent or such Lender having been organized
under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction
imposing such Tax or (ii) a present or former connection between such Agent or such Lender and the jurisdiction imposing such Tax
or any political subdivision or taxing authority thereof or therein (other than any such connection arising from such Agent or such Lender
having executed, delivered or performed its obligations or received a payment under, or enforced, or engaged in any other transactions
pursuant to, this Agreement or any other Credit Document), (B) any branch profits Taxes imposed by the United States of America or
any similar Tax imposed by any other jurisdiction described in clause (A) and (C) any U.S. federal withholding Tax imposed pursuant
to FATCA (collectively, “Excluded Taxes”). If any such non-Excluded Taxes imposed on or with respect to any payment
by or on account of any obligation of any Credit Party under Credit Documents (“Non-Excluded Taxes”) are required to
be withheld by a Withholding Agent from any amounts payable under this Agreement or any other Credit Document, the applicable Credit Party
shall increase the amounts payable to the Administrative Agent or such Lender to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes including those applicable to any amounts payable under this Section 5.4)
interest or any such other amounts payable hereunder at the rates or in the amounts specified in such Credit Document. Whenever any withholding
Taxes are payable by any Credit Party in respect of amounts payable under any Credit Document, promptly thereafter, the applicable Credit
Party shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt, if available (or other evidence acceptable to such Lender, acting reasonably) received by the applicable
Credit Party showing payment thereof. The agreements in this Section 5.4 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) In
addition, each Credit Party shall pay any present or future stamp, documentary, filing, mortgage, recording, property or intangible taxes,
charges or similar levies that arise from any payment made by such Credit Party hereunder or under any other Credit Documents or from
the execution, delivery or registration or recordation of, performance under, or otherwise with respect to, this Agreement or the other
Credit Documents, except any taxes imposed as a result of a present or former connection between an assignee and the jurisdiction imposing
such tax (other than a connection arising solely from an assignee having executed, delivered, become a party to, performed its obligations
under, received or perfected a security interest under, engaged in any transaction pursuant to, or enforced this Agreement) with respect
to an assignment (other than an assignment requested by a Credit Party) (hereinafter referred to as “Other Taxes”).
(c) (i) Subject
to Section 5.4(f), the Credit Parties shall jointly and severally indemnify each Lender and each Agent for and hold them harmless
against the full amount of Non-Excluded Taxes and Other Taxes, and for the full amount of Non-Excluded Taxes and Other Taxes payable,
imposed or asserted (whether or not correctly or legally asserted) by any jurisdiction on any additional amounts or indemnities payable
under this Section 5.4, imposed on or paid by such Lender or such Agent (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect thereto; provided that if any claim pursuant to this
Section 5.4(c)(i) is made later than 180 days after the date on which the relevant Lender or Agent had actual knowledge of the
relevant Non-Excluded Taxes or Other Taxes, then the Credit Parties shall not be required to indemnify the applicable Lender or Agent
for any penalties which accrue in respect of such Non-Excluded Taxes or Other Taxes after the 180th day. This indemnification shall be
made within 30 days from the date such Lender or such Agent (as the case may be) makes written demand therefor.
(ii) Each
Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor,
(x) the Administrative Agent against any Non-Excluded Taxes attributable to such Lender (but only to the extent that any Credit
Party has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of Credit
Parties to do so), (y) the Administrative Agent and the Credit Parties, as applicable, against any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 13.6(d)(ii) relating to the maintenance of a Participant
Register and (z) the Administrative Agent and the Credit Parties, as applicable, against any Excluded Taxes attributable to
such Lender that are payable or paid by the Administrative Agent or the Credit Parties in connection with any Credit Document, and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender
by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Credit Document against any
amount due to the Administrative Agent under this clause (ii).
(d) Each
Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative
Agent with any documentation prescribed by any Applicable Law or reasonably requested by the Borrower or the Administrative Agent (A) as
will permit such payments to be made without, or at a reduced rate of, withholding or (B) as will enable the Borrower or the Administrative
Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each such Lender
shall, whenever a lapse in time or change in circumstances renders such documentation obsolete, expired or inaccurate in any material
respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation
reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent of its
inability to do so. Notwithstanding anything herein to the contrary, the completion, execution and submission of such documentation (other
than such documentation set forth in Sections 5.4(d)(i), 5.4(e) and 5.4(g) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or
would materially prejudice the legal or commercial position of such Lender. Without limiting the foregoing to the extent permitted by
law, each Lender that is not a United States person within the meaning of Section 7701(a)(30) of the Code (a “Non-U.S. Lender”)
shall:
(i) deliver
to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent) two properly executed originals of (w) in the case of Non-U.S.
Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to
payments of “portfolio interest,” United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate
representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code, is not a 10 percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the Code) substantially in the form of Exhibit K (a
“United States Tax Compliance Certificate”)), (x) United States Internal Revenue Service Form W-8BEN, W-8BEN-E
or Form W-8ECI, (y) to the extent a Non-U.S. Lender is not the Beneficial Owner (for example, where the Non-U.S. Lender is a
partnership or a participating Lender), United States Internal Revenue Service Form W-8IMY (or any successor forms) of the Non-U.S.
Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, United States Tax Compliance Certificate, Form W-9, Form W- 8IMY
or any other required information from each Beneficial Owner, as applicable (provided that, if one or more Beneficial Owners are
claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Non-U.S. Lender on behalf
of such Beneficial Owner), and/or (z) any other form prescribed by applicable U.S. federal income Tax laws (including the United
States Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any
payments to such Lender under the Credit Documents, in each case properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments by the Borrower under this Agreement; and
(ii) deliver
to the Borrower and the Administrative Agent two further originals of any such form or certification (or any applicable successor form)
on or before the date that any such form or certification expires or becomes obsolete or inaccurate and promptly after the occurrence
of any event requiring a change in the most recent form previously delivered by it to the Borrower;
unless in any such case any change in treaty,
law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable
or would prevent such Lender from duly completing and delivering any such form with respect to it. Each Lender shall promptly notify the
Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered
form or certification to the Borrower or the Administrative Agent.
(e) If
a payment made to a Lender under this Agreement or any other Credit 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 Withholding Agent, at the time or times prescribed by law and
at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent as
may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has or has not 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 Section 5.4(e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(f) No
Credit Party shall be required to indemnify any Lender or Agent pursuant to Section 5.4(c), or to pay any additional amounts to any
Lender or Agent pursuant to Section 5.4(a) in respect of (i) U.S. federal withholding Taxes imposed under any law in effect
on the date such Lender acquired its interest in the applicable Loan, Commitment or Letter of Credit or changed its lending office; provided,
however, that this Section 5.4(f) shall not apply to the extent that (x) the indemnity payments or additional amounts
any Lender would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts
that the person making the assignment or change in lending office would have been entitled to receive immediately prior to such assignment
or change in lending office, or (y) such assignment had been requested by a Credit Party or (ii) Taxes attributable to such
Lender’s failure to comply with the provisions of Section 5.4(d), 5.4(e) or 5.4(g).
(g) Each
Lender that is organized in the United States of America or any state thereof or the District of Columbia shall (A) on or prior to
the date such Lender becomes a Lender hereunder, (B) on or prior to the date on which any such form or certification expires or becomes
obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered
by it pursuant to this Section 5.4(g) and (D) from time to time if requested by the Borrower or the Administrative Agent
(or, in the case of a participant, the relevant Lender), provide the Administrative Agent and the Borrower (or, in the case of a participant,
the relevant Lender) with two duly completed and signed originals of United States Internal Revenue Service Form W-9 (certifying
that such Lender is entitled to an exemption from U.S. backup withholding tax) or any successor form.
(h) If
any Lender or the Administrative Agent determines in its sole discretion, exercised in good faith, that it has received a refund of a
Non-Excluded Tax or Other Taxes for which a payment has been made by a Credit Party pursuant to this Agreement, which refund in the good-faith
judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by such Credit Party, then
such Lender or the Administrative Agent, as the case may be, shall reimburse the Credit Party for such amount (together with any interest
received thereon) as such Lender or the Administrative Agent, as the case may be, reasonably determines to be the proportion of the refund
as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required;
provided that the Credit Party, upon the request of such Lender, agrees to repay the amount paid over to the Credit Party (with
interest and penalties) in the event such Lender or the Administrative Agent is required to repay such refund to such Governmental Authority.
Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations
to any Credit Party in connection with this paragraph (h) or any other provision of this Section 5.4; provided, further,
that nothing in this Section 5.4 shall obligate any Lender (or Transferee) or the Administrative Agent to apply for any refund.
(i) For
purpose of this Section 5.4, the term “Lender” shall include any Swingline Lender and any Letter of Credit Issuer.
5.5 Computations
of Interest and Fees. All computations of interest and of fees shall be made by the Administrative Agent on the basis of a year of
360 days and, in the case of ABR Loans, 365 or 366 days, as the case may be, in each case for the actual number of days (including the
first day but excluding the last) occurring in the period for which such interest and fees are payable.
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5.6
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Limit on Rate of Interest.
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(a) No
Payment Shall Exceed Lawful Rate. Notwithstanding any other term of this Agreement, the Borrower shall not be obliged to pay any interest
or other amounts under or in connection with this Agreement or any other Credit Document in excess of the amount or rate permitted under
or consistent with any Applicable Law.
(b) Payment
at Highest Lawful Rate. If the Borrower is not obliged to make a payment which it would otherwise be required to make, as a result
of Section 5.6(a), the Borrower shall make such payment to the maximum extent permitted by or consistent with Applicable Law.
(c) Adjustment
if Any Payment Exceeds Lawful Rate. If any provision of this Agreement or any of the other Credit Documents would obligate the Borrower
to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by
any Applicable Law, or would result in receipt by an Agent or Lender of interest at a rate prohibited by any Applicable Law, then notwithstanding
such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest,
as the case may be, as would not be so prohibited by Applicable Law (in the case of the Borrower), such adjustment to be effected, to
the extent necessary, as follows:
(i) firstly,
by reducing the amount or rate of interest required to be paid by the Borrower to the affected Lender under Section 2.8; and
(ii) thereafter,
by reducing any fees, commissions, premiums and other amounts required to be paid by the Borrower to the affected Lender.
Notwithstanding
the foregoing, and after giving pro forma effect to all adjustments contemplated thereby, if any Lender shall have received from the Borrower
an amount in excess of the maximum permitted by any Applicable Law, then the Borrower shall be entitled, by notice in writing to the Administrative
Agent, to obtain reimbursement from such Lender in an amount equal to such excess, and pending such reimbursement, such amount shall be
deemed to be an amount payable by such Lender to the Borrower.
SECTION 6. Conditions
Precedent to Initial Credit Event. The occurrence of the initial Credit Event is subject to the satisfaction of the following conditions
precedent:
6.1 Credit
Documents. The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles (followed promptly
by originals), or electronic copies unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit
Party:
(a) this
Agreement, executed and delivered by (i) an Authorized Officer of each of Holdings and the Borrower, (ii) each Agent, (iii) each
Lender, (iv) the Swingline Lender and (v) each Letter of Credit Issuer;
(b) the
Guarantee, executed and delivered by an Authorized Officer of each Person that is a Guarantor as of the Closing Date;
(c) the
Security Agreement, executed and delivered by an Authorized Officer of Holdings, the Borrower and each other grantor party thereto as
of the Closing Date;
(d) the
Pledge Agreement, executed and delivered by an Authorized Officer of the Borrower and each other pledgor party thereto; and
(e) such
certificates of good standing (to the extent such concept exists) from the applicable secretary of state or other relevant Governmental
Authority of the jurisdiction of organization of each Credit Party.
(a) All
Capital Stock of the Borrower and all Capital Stock of each wholly owned Restricted Subsidiary of the Borrower directly owned by the Borrower
or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to the Pledge Agreement (except that
such Credit Parties shall not be required to pledge any Excluded Capital Stock) and the Collateral Agent shall have received all certificates,
if any, (except as permitted by Section 9.17) representing such securities pledged under the Pledge Agreement, accompanied by instruments
of transfer and undated stock powers endorsed in blank.
(b) (i) Except
with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in excess of $5,000,000
(individually) that is owing to Holdings, the Borrower or any Subsidiary Guarantor shall be evidenced by a promissory note and shall
have been pledged pursuant to the Pledge Agreement, and the Collateral Agent shall have received all such promissory notes, together
with undated instruments of transfer with respect thereto endorsed in blank.
(ii) All
Indebtedness of Holdings, the Borrower and each Restricted Subsidiary on the Closing Date that is owing to any Credit Party shall be
evidenced by the Intercompany Note, which shall be executed and delivered by Holdings, the Borrower and each Restricted Subsidiary on
the Closing Date and shall have been pledged pursuant to the Pledge Agreement, and the Collateral Agent shall have received such Intercompany
Note, together with undated instruments of transfer with respect thereto endorsed in blank; provided, however, that, if
the Intercompany Note cannot be delivered to the Collateral Agent on or prior to the Closing Date notwithstanding the Borrower’s
use of commercially reasonable efforts to do so, delivery thereof shall not be a condition to closing, and in such case the Borrower
agrees to deliver same to the Collateral Agent not later than 90 days following the Closing Date (or such later date as the Collateral
Agent shall agree in its discretion).
(c) All
documents and instruments, including UCC or other applicable personal property security financing statements and Intellectual Property
Security Agreements (as defined in the Security Agreement), required by Applicable Law or reasonably requested by the Collateral Agent
to be filed, registered or recorded to create the Liens intended to be created by the Security Documents on the Collateral owned by the
Borrower and the Guarantors and perfect such Liens in the United States to the extent required by, and with the priority required by,
the Security Documents shall have been filed, registered or recorded or delivered to the Collateral Agent in appropriate form for filing,
registration or recording under the UCC and with the United States Patent and Trademark Office or the United States Copyright Office,
as applicable.
(d) The
Collateral Agent shall have received a completed Perfection Certificate, dated as of the Closing Date and signed by an Authorized Officer
of the Borrower, together with all attachments contemplated thereby.
Notwithstanding
anything to the contrary contained in this Agreement or the other Credit Documents, to the extent any security interest in any
Collateral is not or cannot be provided and/or perfected on the Closing Date (other than the pledge and perfection of the security
interests (i) in the certificated Capital Stock, if any, of the Borrower and any wholly owned Domestic Restricted Subsidiary
that is not an Immaterial Subsidiary (to the extent required by Section 6.2(a)) and (ii) in other assets pursuant to which
a security interest may be perfected by the filing of a financing statement under the UCC) after the Borrower’s use of
commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security
interest in such Collateral shall not constitute a condition to the initial Credit Event to occur on the Closing Date and the
Borrower agrees to deliver or cause to be delivered such documents and instruments, and take or cause to be taken such other actions
as may be required to provide and/or perfect such security interests, with respect to any certificated Capital Stock of the Target
or Amplify or any wholly owned material U.S. restricted subsidiary of the Target or Amplify not delivered on the Closing Date, on or
prior to the date that is 5 Business Days after the Closing Date, and with respect to any other such Collateral not actually
received from the Target or Amplify on or prior to the Closing Date after use of commercially reasonably efforts to procure delivery
thereof, on or prior to the date that is 90 days after the Closing Date or, in each case, such longer period of time as may be
mutually agreed by the Collateral Agent and the Borrower, each acting reasonably.
6.3 Legal
Opinions. The Administrative Agent shall have received the executed legal opinions of (a) Simpson Thacher & Bartlett
LLP, New York counsel to Holdings, the Borrower and its Subsidiaries and (b) K&L Gates LLP, North Carolina counsel to Holdings,
the Borrower and its Subsidiaries, in each case in form and substance reasonably satisfactory to the Administrative Agent.
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6.4
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Structure and Terms of the Transaction; No Material Adverse Effect.
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(a) The
Mergers shall have been consummated, or shall be consummated substantially simultaneously with, the initial Credit Event hereunder to
occur on the Closing Date, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to
any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents,
waivers or requests (including the effects of any such requests) by Holdings (and/or its affiliates) that are materially adverse to the
interests of the Lenders or the Joint Bookrunners, unless consented to in writing by the Joint Bookrunners (such consent not to be unreasonably
withheld or delayed).
(b) The
Equity Contribution shall have been made, or shall be made substantially simultaneously with, the initial Credit Event hereunder to occur
on the Closing Date, in at least the amount set forth in the third recital to this Agreement.
(c) The
Existing Debt Refinancing shall have been consummated, or shall be consummated substantially simultaneously with, the initial Credit Event
hereunder to occur on the Closing Date.
(d) Since
the date of the Acquisition Agreement, there shall have been no Material Adverse Effect (as defined in the Acquisition Agreement).
6.5 Closing
Certificates. The Administrative Agent shall have received a certificate of each Person that is a Credit Party as of the Closing Date,
dated the Closing Date, substantially in the form of Exhibit E, with appropriate insertions, executed by two Authorized Officers
of such Credit Party, and attaching the documents referred to in Sections 6.6 and 6.7.
6.6 Corporate
Proceedings. The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory
to the Administrative Agent, of the Board of Directors or other governing body, as applicable, of each Person that is a Credit Party as
of the Closing Date (or a duly authorized committee thereof) authorizing (a) the execution, delivery and performance of the Credit
Documents (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the extensions of credit
contemplated hereunder.
6.7 Corporate
Documents. The Administrative Agent shall have received true and complete copies of the Organizational Documents of each Person that
is a Credit Party as of the Closing Date.
6.8 Solvency
Certificate. The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower substantially
in the form of Exhibit J.
6.9 Financial
Statements. The Administrative Agent and the Joint Bookrunners shall have received the Historical Financial Statements and the Pro
Forma Financial Statements.
6.10 PATRIOT
ACT. The Administrative Agent and the Joint Bookrunners shall have received, at least three Business Days prior to the Closing
Date, all documentation and other information about Holdings, the Borrower and the other Guarantors that shall have been reasonably
requested by the Administrative Agent or the Joint Bookrunners in writing at least 10 Business Days prior to the Closing Date and
that the Administrative Agent and the Joint Bookrunners reasonably determine is required by United States regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation
the PATRIOT ACT.
6.11 Fees
and Expenses. All fees required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee Letter and reasonable
out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee Letter, and with respect
to expenses to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the
Borrower), shall, upon the initial borrowings under the Credit Facilities, have been, or will be substantially simultaneously, paid (which
amounts may be offset against the proceeds of the Credit Facility).
6.12 Specified
Representations. The Specified Representations and the Specified Acquisition Agreement Representations shall be true and correct in
all material respects on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date);
provided that, with respect to the Specified Representations made on the Closing Date, to the extent that such representations
are qualified by “Material Adverse Effect”, the definition of “Material Adverse Effect” applicable to such qualifications
shall be the definition of “Material Adverse Effect” set forth in the Acquisition Agreement and not the definition of “Material
Adverse Effect” set forth in this Agreement.
Without limiting the generality
of the provisions of the last paragraph of Section 12.3, for purposes of determining compliance with the conditions specified in
this Section 6, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
SECTION 7. Conditions
Precedent to All Credit Events.
7.1 No
Default; Representations and Warranties. The agreement of each Lender to make any Loan requested to be made by it on any date (excluding
Mandatory Borrowings and Revolving Credit Loans made pursuant to Section 2.1(d)(ii) or pursuant to Section 3.4(a) which
shall each be made without regard to the satisfaction of the condition set forth in this Section 7 and excluding borrowings made
pursuant to Section 2.14, Section 2.15 and/or Section 2.17, which may be subject to different conditions precedent and
representations, but only if so agreed by the Borrower and the applicable Lenders) and the obligation of the Letter of Credit Issuer to
issue, amend, extend or renew Letters of Credit on any date is subject to the satisfaction of the condition precedent that at the time
of each such Credit Event and also after giving effect thereto (a) except in the case of the initial Credit Event to occur on the
Closing Date, no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Credit
Event and (b) except in the case of the initial Credit Event to occur on the Closing Date, all representations and warranties made
by any Credit Party contained herein or in the other Credit Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of the date of such Credit Event (except where such representations
and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct
in all material respects as of such earlier date, and except where such representations and warranties are qualified by materiality, “Material
Adverse Effect” or similar language, in which case such representations and warranties shall be true and correct in all respects).
The acceptance of the benefits of each such Credit Event shall constitute a representation and warranty by each Credit Party to each of
the Lenders that the conditions contained in this Section 7.1 have been met as of such date.
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7.2
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Notice of Borrowing; Letter of Credit Request.
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(a) Prior
to the making of each Term Loan, each Revolving Credit Loan (other than any Revolving Credit Loan made pursuant to Section 2.1(d)(ii) or
pursuant to Section 3.4(a)), each Additional/Replacement Revolving Credit Loan and each Extended Revolving Credit Loan and each Swingline
Loan, the Administrative Agent shall have received a written Notice of Borrowing meeting the requirements of Section 2.3.
(b) Prior
to the issuance of each Letter of Credit, the Administrative Agent and the Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 3.2(a).
SECTION 8. Representations, Warranties and Agreements. In order to induce the Lenders to enter into this Agreement, make the Loans
and issue, renew, amend, extend or participate in Letters of Credit as provided for herein, each of Holdings and the Borrower makes the
following representations and warranties to, and agreements with, the Lenders and the Letter of Credit Issuer, all of which shall survive
the execution and delivery of this Agreement, the making of the Loans and the issuance, renewal, amendment or extension of the Letters
of Credit:
8.1 Corporate
Status. Holdings, the Borrower and each Restricted Subsidiary (a) is a duly organized and validly existing corporation or other
entity in good standing under the laws of the jurisdiction of its organization or formation and has the corporate or other organizational
power and authority to own its property and assets and to transact the business in which it is engaged and (b) has duly qualified
and is authorized to do business and is in good standing (to the extent such concept is applicable in the corresponding jurisdiction)
in all jurisdictions where it is required to be so qualified, except, in the case of clauses (a) and (b), where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
8.2 Corporate
Power and Authority; Enforceability. Each Credit Party has the corporate or other organizational power and authority to execute, deliver
and carry out the terms and provisions of the Credit Documents to which it is a party and has taken all necessary corporate or other organizational
action to authorize the execution, delivery and performance of the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered each Credit Document to which it is a party and each such Credit Document constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforceability of creditors’ rights generally
and general principles of equity (whether considered in a proceeding in equity or law). Holdings, the Borrower and each of the Restricted
Subsidiaries (a) is in compliance with all Applicable Laws and (b) has all requisite governmental licenses, authorizations,
consents and approvals to operate its business as currently conducted except, in each case to the extent that failure to be in compliance
therewith or to have all such licenses, authorizations, consents and approvals could not reasonably be expected to have a Material Adverse
Effect.
8.3 No
Violation. The execution, delivery and performance by any Credit Party of the Credit Documents to which it is a party and compliance
with the terms and provisions hereof and thereof will not (a) contravene any material applicable provision of any material Applicable
Law of any Governmental Authority, (b) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute
a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under,
or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any
of Holdings, the Borrower or any of the Restricted Subsidiaries (other than Liens created under the Credit Documents) pursuant to, the
terms of any indenture, loan agreement, lease agreement, mortgage or deed of trust or any other Contractual Obligation to which Holdings,
the Borrower or any of their Restricted Subsidiaries is a party or by which they or any of their property or assets is bound, except to
the extent that any such conflict, breach, contravention, default, creation or imposition could not reasonably be expected to result in
a Material Adverse Effect or (c) violate any provision of the Organizational Documents of Holdings, the Borrower or any of their
Restricted Subsidiaries.
8.4 Litigation.
There are no actions, suits, investigations or proceedings (including Environmental Claims) pending or, to the knowledge of Holdings or
the Borrower, threatened, in either case with respect to Holdings, the Borrower or any of the Restricted Subsidiaries that (a) involve
any of the Credit Documents or (b) could reasonably be expected to result in a Material Adverse Effect.
8.5 Margin
Regulations. Neither the making of any Loan hereunder nor the use of the proceeds thereof will violate the provisions of Regulation
T, Regulation U or Regulation X of the Board.
8.6 Governmental
and Third Party Approvals. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any Governmental Authority or any other Person is required to authorize or is required in connection with (a) the
execution, delivery and performance of any Credit Document or (b) the legality, validity, binding effect or enforceability of any
Credit Document, except, in the case of either clause (a) or (b), (i) such orders, consents, approvals, licenses, authorizations,
validations, filings, recordings, registrations or exemptions as have been obtained or made and are in full force and effect, (ii) filings
and recordings in respect of Liens created pursuant to the Security Documents and (iii) such orders, consents, approvals, licenses,
authorizations, validations, filings, recordings, registrations or exemptions to the extent that failure to so receive could not reasonably
be expected to result in a Material Adverse Effect.
8.7 Investment
Company Act. None of the Credit Parties is an “investment company” within the meaning of the Investment Company Act of
1940, as amended.
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8.8
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True and Complete Disclosure.
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(a) None
of the written factual information or written factual data (taken as a whole) heretofore or contemporaneously furnished by Holdings, the
Borrower, any of their respective Subsidiaries or any of their respective authorized representatives in writing to any Agent or any Lender
on or before the Closing Date (including all such information contained in the Confidential Information Memorandum (and all information
incorporated by reference therein) and in the Credit Documents) for purposes of, or in connection with, this Agreement or any transaction
contemplated herein contained any untrue statement of material fact or omitted to state any material fact necessary to make such information
and data (taken as a whole) not materially misleading at such time (after giving effect to all supplements so furnished from time to time)
in light of the circumstances under which such information or data was furnished; it being understood and agreed that for purposes of
this Section 8.8(a), such factual information and data shall not include projections (including financial estimates, forecasts and
other forward-looking information), pro forma financial information or information of a general economic or industry specific nature.
(b) The
projections contained in the information and data referred to in Section 8.8(a) were prepared in good faith based upon assumptions
believed by Holdings and the Borrower to be reasonable at the time made; it being recognized by the Agents and the Lenders that such projections
are as to future events and are not to be viewed as facts, the projections are subject to significant uncertainties and contingencies,
many of which are beyond the control of Holdings, the Borrower and the Restricted Subsidiaries, that no assurance can be given that any
particular projections will be realized and that actual results during the period or periods covered by any such projections may differ
from the projected results and such differences may be material.
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8.9
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Financial Statements.
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(a) The
Historical Financial Statements present fairly in all material respects the financial position and results of operations of Wirepath Home
Systems Holdco LLC (or the predecessor thereto) and its Subsidiaries at the respective dates of such information and for the respective
periods covered thereby and have been prepared in accordance with GAAP consistently applied, except to the extent provided in the notes
thereto, and subject, in the case of the unaudited financial information, to changes resulting from audit, normal year-end audit adjustments
and to the absence of footnotes and the inclusion of any explanatory note.
(b) The
unaudited pro forma consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of March 31, 2017
(including any notes thereto) (the “Pro Forma Balance Sheet”) and the unaudited pro forma consolidated statement
of operations of the Borrower and its consolidated Subsidiaries for the 12 month period ending on March 31, 2017 (together with
the Pro Forma Balance Sheet, the “Pro Forma Financial Statements”), copies of which have heretofore been
furnished to the Administrative Agent, has been prepared giving pro forma effect (as if such events had occurred on such date or the
beginning of such period, as the case may be) to the consummation of all of the Transactions. The Pro Forma Financial Statements
have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable as of the date of delivery thereof
to the Administrative Agent, and, subject to the qualifications and limitations contained in the notes attached thereto, present
fairly in all material respects on a pro forma basis, the estimated financial position of the Borrower and its consolidated
Subsidiaries as at March 31, 2017 and their estimated results of operations for the periods covered thereby, assuming that the
events specified in the preceding sentence had actually occurred at such date or at the beginning of the periods covered thereby; provided
that it is understood that the Pro Forma Financial Statements have not been prepared in compliance with Regulation S-X of the
Securities Act, and/or do not include adjustments for purchase accounting (including adjustments of the type contemplated by
Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)), tax
adjustments, deferred taxes or other similar pro forma adjustments.
Each Lender and each Agent
hereby acknowledges and agrees that the Borrower and its Subsidiaries may be required to restate the Historical Financial Statements as
the result of the implementation of changes in GAAP or the interpretation thereof, and that such restatements will not result in a Default
under the Credit Documents under Section 11.2 (including any effect on any conditions required to be satisfied on the Closing Date)
to the extent that the restatements do not reveal any material omission, misstatement or other material inaccuracy in the reported information
from actual results for any relevant prior period.
8.10 Tax
Returns and Payments, Etc. (a) Holdings, the Borrower and each of the Restricted Subsidiaries have filed all U.S. federal income
tax returns and all other material tax returns, domestic and foreign, required to be filed by them and have paid all material taxes and
assessments payable by them that have become due, other than those not yet delinquent or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been established on the applicable financial statements in accordance with GAAP or the
equivalent accounting principles in the relevant local jurisdiction and (b) each of Holdings, the Borrower and the Restricted Subsidiaries
have paid, or have provided adequate reserves (in the good-faith judgment of the management of the Borrower) in accordance with GAAP or
the equivalent accounting principles in the relevant local jurisdiction for the payment of, all material U.S. federal, state, and foreign
income taxes applicable for all prior fiscal years and for the current fiscal year to the Closing Date, except in the case of either of
clauses (a) or (b), to the extent that the failure to be in compliance therewith could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
8.11 Compliance
with ERISA. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:
(a) each Pension Plan is in compliance with ERISA, the Code and any Applicable Law; (b) no Reportable Event has occurred
(or is reasonably likely to occur); (c) no Multiemployer Plan is “insolvent” within the meaning of
Section 4245 of ERISA (or is reasonably likely to be insolvent), and no written notice of any such insolvency has been given to
any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate; (d) none of Holdings, the Borrower,
any of the Restricted Subsidiaries or any ERISA Affiliate has failed to satisfy the minimum funding standard under Section 412
of the Code and Section 302 of ERISA with respect to any Pension Plan, or has otherwise failed to make a required contribution
to a Multiemployer Plan, whether or not waived (or is reasonably likely to fail to satisfy such minimum funding standard or make
such required contribution); (e) no Pension Plan is, or is expected to be, in “at-risk” status within the meaning
of Section 430 of the Code or Section 303 of ERISA and no Multiemployer Plan is, or is expected to be, in
“endangered or critical status” within the meaning of Section 432 of the Code or Section 305 of ERISA;
(f) none of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate has incurred (or is reasonably
likely to incur) any liability to or on account of a Pension Plan or Multiemployer Plan, as applicable, pursuant to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code or has
been notified in writing that it will incur any liability under any of the foregoing Sections with respect to any Pension Plan or
Multiemployer Plan; (g) no proceedings by the PBGC have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or
Multiemployer Plan, and no written notice of any such proceedings has been given to any of Holdings, the Borrower, any of the
Restricted Subsidiaries or any ERISA Affiliate; (h) the conditions for imposition of a Lien that could be imposed under the
Code or ERISA on the assets of any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate with respect
to a Pension Plan do not exist (or are not reasonably likely to exist) nor has Holdings, the Borrower, any of the Restricted
Subsidiaries or any ERISA Affiliate been notified in writing that such a lien will be imposed on the assets of any of Holdings, the
Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate on account of any Pension Plan; and (i) each Foreign Plan
is in compliance with Applicable Laws (including funding requirements under such Applicable Laws), and no proceedings have been
instituted to terminate any Foreign Plan which would reasonably be expected to give rise to liability for Holdings, the Borrower or
any Restricted Subsidiary. No Pension Plan has an Unfunded Current Liability that would, individually or when taken together with
any other liabilities incurred or reasonably likely to be incurred by Holdings, the Borrower, any of the Restricted Subsidiaries or
any ERISA Affiliate as referenced in this Section 8.11, be reasonably likely to have a Material Adverse Effect. With respect to
Multiemployer Plans, the representations and warranties in this Section 8.11, other than any made with respect to
(i) liability under Section 4201 or 4204 of ERISA, (ii) any contribution required to be made, or (iii) liability
for termination of any such Multiemployer Plan under ERISA, are made to the best knowledge of the Borrower.
8.12 Subsidiaries.
On the Closing Date, after giving effect to the Transactions, Holdings does not have any Subsidiaries other than the Subsidiaries listed
on Schedule 8.12. Schedule 8.12 sets forth, as of the Closing Date, after giving effect to the Transactions, the name and the jurisdiction
of organization of each Subsidiary and, as to each Subsidiary, the percentage of each class of Capital Stock owned by any Credit Party
and the designation of such Subsidiary as a Guarantor, a Restricted Subsidiary, an Unrestricted Subsidiary, a Specified Subsidiary or
an Immaterial Subsidiary. The Borrower does not own or hold, directly or indirectly, any Capital Stock of any Person other than such Subsidiaries
and Investments permitted by Section 10.5.
8.13 Intellectual
Property. Each of Holdings, the Borrower and each of the Restricted Subsidiaries owns, has good and marketable title to, or has
a valid license or otherwise has the right to use, any and all Intellectual Property, that is used in, held for use in or that is
otherwise necessary for the operation of their respective businesses as currently conducted, free and clear of all Liens (other than
Liens permitted by Section 10.2), except where the failure to own, or have any such title, license or rights could not
reasonably be expected to have a Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse
Effect, (i) to the Borrower’s knowledge, the operation of the businesses conducted by each of the Borrower and the
Restricted Subsidiaries, and the Intellectual Property now employed by any of the Credit Parties does not infringe upon,
misappropriate, or otherwise violate any Intellectual Property rights owned by any other Person, and (ii) no material written
claim has been received by Holdings, the Borrower, or any of the Restricted Subsidiaries, and no litigation regarding the foregoing
is pending or, to the Borrower’s knowledge, threatened in writing, in either case against the Borrower or any of the
Restricted Subsidiaries.
(a) Except
as could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, (i) Holdings, the
Borrower and each of the Restricted Subsidiaries are and have been in compliance with all Environmental Laws (including having obtained
and complied with all permits required under Environmental Laws for their current operations); (ii) to the knowledge of Holdings
or the Borrower, there are no facts, circumstances or conditions arising out of or relating to the operations of Holdings, the Borrower
or any of the Restricted Subsidiaries or any currently or formerly owned, operated or leased Real Property that would reasonably be expected
to result in Holdings, the Borrower or any of the Restricted Subsidiaries incurring liability under any Environmental Law; and (iii) none
of Holdings, the Borrower or any of the Restricted Subsidiaries has become subject to any pending or, to the knowledge of Holdings or
the Borrower, threatened Environmental Claim or, to the knowledge of the Borrower, any other liability under any Environmental Law.
(b) None
of Holdings, the Borrower or any of the Restricted Subsidiaries has treated, stored, transported or Released Hazardous Materials at or
from any currently or formerly owned, operated or leased Real Property in a manner that could reasonably be expected to have a Material
Adverse Effect.
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8.15
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Properties, Assets and Rights.
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(a) As
of the Closing Date and as of the date of each Credit Event thereafter, each of Holdings, the Borrower and each of the Restricted Subsidiaries
has good and marketable title to, valid leasehold interest in, or easements, licenses or other limited property interests in, all properties
(other than Intellectual Property) that are necessary for the operation of their respective businesses as currently conducted, except
where the failure to have such good title or interest in such property could not reasonably be expected to have a Material Adverse Effect.
None of such properties and assets is subject to any Lien, except for Liens permitted under Section 10.2.
(b) Set
forth on Schedule 8.15 hereto is a complete and accurate list of all Real Property owned in fee by the Credit Parties on the Closing Date,
showing as of the Closing Date the street address, county or other relevant jurisdiction, state and record owner thereof.
(c) All
permits required to have been issued or appropriate to enable all Real Property of the Credit Parties to be lawfully occupied and used
for all of the purposes for which they are currently occupied and used have been lawfully issued and are in full force and effect, other
than those permits the failure of which to be issued or to so enable lawful occupation and use could not reasonably be expected to have
a Material Adverse Effect.
8.16 Solvency.
On the Closing Date after giving pro forma effect to the Transactions, the Credit Parties and their Subsidiaries on a consolidated basis
are Solvent.
8.17 Material
Adverse Change. Since the Closing Date there have been no events or developments that have had or could reasonably be expected to
have a Material Adverse Effect.
8.18 Use
of Proceeds. The proceeds of (a) the Initial Term Loans (other than the Tranche B Term Loans made
on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement and other than the Tranche C Term Loans
made on the Second Incremental Agreement Effective Date pursuant to the Second Incremental Agreement) and the Initial Revolving Borrowing
Amount shall be used (i) on the Closing Date, together with cash on hand at the Target and its Subsidiaries and the proceeds from
the Equity Contribution to pay the Merger Consideration, the Existing Debt Refinancing and/or the Transaction Expenses and (ii) to
the extent any proceeds remain after the application described in clause (i), will be used on and after the Closing Date for other general
corporate purposes of the Borrower and its Subsidiaries and (b) Revolving Credit Loans available under any Revolving Credit Facility
(including under the Incremental Revolving
Credit Commitment Increase), together with the proceeds of the Swingline Loans and the Letters
of Credit, will be used for working capital requirements and other general corporate purposes of the Borrower and its Subsidiaries, including
the financing of acquisitions, other Investments and Restricted Payments and other distributions on account of the Capital Stock of the
Borrower (or any Parent Entity thereof), in each case permitted hereunder, and any other use not prohibited hereby. The proceeds of the
Tranche B Term Loans made on the First Incremental Agreement Effective Date pursuant to the First Incremental Agreement shall be used
on the First Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans outstanding hereunder as of the First
Incremental Agreement Effective Date (immediately prior to giving effect to the First Incremental Agreement), all accrued and unpaid interest
thereon and all other Obligations in respect thereof and (b) to pay the fees, expenses and other amounts incurred in connection with
the transactions contemplated by the First Incremental Agreement. The proceeds of the Tranche C Term Loans made on the Second Incremental
Agreement Effective Date pursuant to the Second Incremental Agreement shall be used on the Second Incremental Agreement Effective Date,
(a) to prepay in full all Initial Term Loans outstanding hereunder as of the Second Incremental Agreement Effective Date (immediately
prior to giving effect to the Second Incremental Agreement), all accrued and unpaid interest thereon and all other Obligations in respect
thereof, (b) to pay the fees, expenses and other amounts incurred in connection with the transactions contemplated by the Second
Incremental Agreement and (c) other general corporate purposes of the Borrower and its Subsidiaries, which may include the financing
of acquisitions and other Investments, and any other use not prohibited hereby. The 2019 Incremental
Term Loans shall be used (i) to pay the Acquisition Consideration (as defined in the Third Incremental Agreement),
(ii) to pay the costs associated with the 2019 Transactions, (iii) to pay for the Refinancing (as defined in the Third Incremental
Agreement) and (iv) to the extent any proceeds remain after the application described in clauses
(i)-(iii), for other general corporate purposes of the Borrower and its Subsidiaries, which may
include, at the option of the Borrower, funding cash to the balance sheet and/or repaying Revolving Credit Loans outstanding
under the Revolving Credit Facility, or the financing of acquisitions and other
Investments.
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8.19
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Anti-Corruption Laws.
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(a) The
Borrower and each other Credit Party and their respective Restricted Subsidiaries are in compliance with the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), except to the extent that the
failure to be in compliance would not reasonably be expected to result in a Material Adverse Effect.
(b) None
of the Borrower or any other Credit Party will use the proceeds of the Loans or the Letters of Credit or otherwise make available such
proceeds to any Person for the purposes of any payments to any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or
obtain any improper advantage, in violation of the FCPA.
(a) None
of the Borrower, any other Credit Party or any of their respective Restricted Subsidiaries is currently the target of any U.S. sanctions
administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) of the U.S. Treasury
Department or the U.S. Department of State.
(b) None
of the Borrower or any other Credit Party will use the proceeds of the Loans or the Letters of Credit or otherwise make available such
proceeds to any Person for use in any manner that will result in a violation by any Lender of any U.S. sanctions administered by OFAC
or the U.S. Department of State.
8.21 PATRIOT
Act. Except to the extent as could not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any other
Credit Party is in violation of any Applicable Laws relating to money laundering, including the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “PATRIOT ACT”).
8.22 Labor
Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (a) there
are no strikes or other labor disputes against any of the Borrower or the Restricted Subsidiaries pending or, to the knowledge of the
Borrower, threatened in writing and (b) none of the Borrower or the Restricted Subsidiaries have been in violation of the Fair Labor
Standards Act or any other Applicable Laws dealing with wage and hour matters.
8.23 Subordination
of Junior Financing. The Obligations are “Designated Senior Debt” (if applicable), “Senior Debt”, “Senior
Indebtedness”, “Guarantor Senior Debt” or “Senior Secured Financing” (or any comparable term) under, and
as defined in, any indenture or document governing any Junior Debt.
8.24 No
Default. As of the date of any Credit Event after the Closing Date, no Default has occurred and is continuing.
SECTION 9.
Affirmative Covenants. The Borrower (and, in the case of Section 9.14, Holdings) hereby covenants and agrees that,
on the Closing Date and thereafter, until the Total Commitment and all Letters of Credit have terminated (unless such Letters of Credit
have been Cash Collateralized on the terms and conditions set forth in Section 3.8) and the Loans and Unpaid Drawings, together with
interest, fees and all other Obligations Incurred hereunder (other than Hedging Obligations under Secured Hedging Agreements, Cash Management
Obligations under Secured Cash Management Agreements and contingent indemnification obligations and other contingent obligations not then
due and payable), are paid in full:
9.1 Information
Covenants. The Borrower will furnish to the Administrative Agent for prompt further distribution to each Lender:
(a) Annual
Financial Statements. As soon as available and in any event on or before the date that is 120 days after the end of each fiscal
year (or, in the case of the fiscal year ended December 31, 2017, the date that is 150 days after the end of such fiscal year),
the consolidated balance sheet of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and its Restricted
Subsidiaries, in each case as at the end of such fiscal year, and the related consolidated statement of income and cash flows for
such fiscal year, setting forth for each fiscal year (other than the fiscal year ended December 31, 2017 (with respect to
which, for the avoidance of doubt, no comparative consolidated figures or reconciliations will be required)) comparative
consolidated figures for the preceding fiscal year (or, in lieu of such audited financial statements of the Borrower and the
Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted
Subsidiaries, on the one hand, and the Borrower and its consolidated Subsidiaries, on the other hand), all in reasonable detail and
prepared in all material respects in accordance with GAAP (except as otherwise disclosed in such financial statements) and, except
with respect to any such reconciliation, reported on by independent registered public accountants of recognized national standing
with an unmodified report by such independent registered public accountants without an emphasis of matter paragraph related to going
concern as defined by Statement on Accounting Standards AU-C Section 570 “The Auditor’s Consideration of an
Entity’s Ability to Continue as a Going Concern” (or any similar statement under any amended or successor rule as
may be adopted by the Auditing Standards Board from time to time) (other than solely with respect to, or expressly resulting solely
from, an upcoming maturity date under the documentation governing any Indebtedness), and, for the avoidance of doubt, without
modification as to the scope of audit, together in any event with a certificate of such accounting firm stating that in the course
of its regular audit of the business of the Borrower and its consolidated Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm has obtained no knowledge of any Event of Default relating to the
Financial Performance Covenant that has occurred and is continuing or, if in the opinion of such accounting firm such an Event of
Default has occurred and is continuing, a statement as to the nature thereof. Notwithstanding the foregoing, the obligations in this
Section 9.1(a) may be satisfied with respect to financial information of the Borrower and its consolidated Subsidiaries by
furnishing (A) the applicable financial statements of Holdings (or any Parent Entity of Holdings), (B) the
Borrower’s or Holdings’ (or any Parent Entity thereof), as applicable, Form 10-K filed with the SEC or
(C) following an election by the Borrower pursuant to the definition of “GAAP”, the applicable financial statements
shall be determined in accordance with IFRS; provided that, with respect to each of clauses (A) and (B), (i) to the
extent such information relates to Holdings (or such Parent Entity), such information is accompanied by consolidating information
that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one
hand, and the information relating to the Borrower and its consolidated Subsidiaries on a standalone basis, on the other hand and
(ii) to the extent such information is in lieu of information required to be provided under the first sentence of this
Section 9.1(a), such materials shall be reported on by an independent registered public accounting firm of recognized national
standing, with an unmodified report by such independent registered public accountants without an emphasis of matter paragraph
related to going concern as defined by Statement on Accounting Standards AU-C Section 570 “The Auditor’s
Consideration of an Entity’s Ability to Continue as a Going Concern” (or any similar statement under any amended or
successor rule as may be adopted by the Auditing Standards Board from time to time) (other than solely with respect to, or
expressly resulting solely from, an upcoming maturity date under the documentation governing any Indebtedness) (it being understood
that there shall be no obligation to audit any such consolidating information), and, for the avoidance of doubt, without
modification as to the scope of audit.
(b) Quarterly
Financial Statements. As soon as available and in any event on or before the date that is 45 days after the end of each of the
first three quarterly accounting periods in each fiscal year of the Borrower (or, in the case of each of the quarters ending
September 30, 2017, March 31, 2018 and June 30, 2018, the date that is 60 days after the end of such quarter), the
consolidated balance sheet of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted
Subsidiaries, in each case as at the end of such quarterly period and the related consolidated statement of income for such
quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and the
related consolidated statement of cash flows for the elapsed portion of the fiscal year ended with the last day of such quarterly
period, and setting forth (other than for the quarterly periods ending September 30, 2017, March 31, 2018 and
June 30, 2018 (with respect to which, for the avoidance of doubt, no comparative consolidated figures or reconciliations will
be required)) comparative consolidated figures for the related periods in the prior fiscal year or, in the case of such consolidated
balance sheet, for the last day of the prior fiscal year (or in lieu of such financial statements of the Borrower and the Restricted
Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on
the one hand, and the Borrower and its consolidated Subsidiaries on the other hand), all in reasonable detail and all of which shall
be certified by an Authorized Officer of the Borrower as fairly presenting in all material respects the financial condition, results
of operations and cash flows of the Borrower and its consolidated Subsidiaries (and, if applicable, the Borrower and the Restricted
Subsidiaries) in accordance with GAAP, subject to changes resulting from audit and normal year-end audit adjustments and to the
absence of footnotes and the inclusion of any explanatory note. Notwithstanding the foregoing, the obligations in this
Section 9.1(b) may be satisfied with respect to financial information of the Borrower and its consolidated Subsidiaries by
furnishing (A) the applicable financial statements of Holdings (or any Parent Entity thereof) or (B) the Borrower’s
or Holdings’ (or any Parent Entity thereof), as applicable, Form 10-Q filed with the SEC; provided that, with
respect to each of clauses (A) and (B), to the extent such information relates to Holdings (or any such Parent Entity), such
information is accompanied by consolidating information that explains in reasonable detail the differences between the information
relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and its consolidated
Subsidiaries on a standalone basis (and, if different, the Borrower and the Restricted Subsidiaries), on the other hand.
(c) Budget.
No later than five Business Days following the delivery by the Borrower of the financial statements required under
Section 9.1(a), beginning at the time of the delivery of such financial statements for the fiscal year ending December 31,
2017, a detailed quarterly budget of the Borrower and its Restricted Subsidiaries in reasonable detail for the current fiscal year
as customarily prepared by management of the Borrower for its internal use (but including, in any event, only a projected
consolidated statement of income of the Borrower and its Restricted Subsidiaries for the current fiscal year and not a projected
consolidated balance sheet or statement of projected cash flow) and setting forth the principal assumptions upon which such budget
is based (provided, that no such budgets shall be required to be delivered for the fiscal year which began January 1,
2017). It is understood and agreed that any financial or business projections furnished by any Credit Party (i)(A) are subject
to significant uncertainties and contingencies, which may be beyond the control of the Credit Parties, (B) no assurance is
given by the Credit Parties that the results or forecast in any such projections will be realized and (C) the actual results
may differ from the forecast results set forth in such projections and such differences may be material and
(ii) are not a guarantee of performance.
(d) Officer’s
Certificates. No later than five Business Days following the delivery of the financial statements provided for in Sections 9.1(a) and
9.1(b), a certificate of an Authorized Officer of the Borrower to the effect that no Default or Event of Default exists or, if any Default
or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i) during any fiscal
quarter during which the Financial Performance Covenant is applicable, the calculations required to establish whether the Borrower was
in compliance with the provisions of the Financial Performance Covenant as at the end of such fiscal year or period, as the case may be,
beginning with the fiscal period ending December 31, 2017, if required, (ii) a specification of any change in the identity of
the Guarantors, the Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and
the Foreign Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Guarantors, Restricted Subsidiaries,
the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the Foreign Subsidiaries, respectively, provided
to the Lenders on the Closing Date or the most recent fiscal year or period, as the case may be, and (iii) the then applicable Applicable
Margins and Commitment Fee Rate. At the time of the delivery of the financial statements provided for in Section 9.1(a) beginning
with the fiscal year ended December 31, 2018, a certificate of an Authorized Officer of the Borrower setting forth in reasonable
detail the calculation of Excess Cash Flow, the Available Amount and the Available Equity Amount as at the end of the fiscal year to which
such financial statements relate.
(e) Notice
of Certain Events. Promptly after an Authorized Officer of Holdings, the Borrower or any of its Restricted Subsidiaries obtains knowledge
thereof, notice of the occurrence of (i) any event that constitutes a Default or an Event of Default, which notice shall specify
the nature thereof, the period of existence thereof and what action Holdings or the Borrower proposes to take with respect thereto, and
(ii) any litigation or governmental proceeding pending against Holdings, the Borrower or any of its Restricted Subsidiaries that
could reasonably be expected to result in a Material Adverse Effect.
(f) Other
Information. (i) Promptly upon filing thereof, (x) copies of any annual, quarterly and other regular, material
periodic and special reports (including on Form 10-K, 10-Q or 8-K) and registration statements which Holdings (or any Parent
Entity thereof), the Borrower or any Restricted Subsidiary files with the SEC or any analogous Governmental Authority in any
relevant jurisdiction (other than amendments to any registration statement (to the extent such registration statement, in the form
it becomes effective, is delivered to the Administrative Agent for further delivery to the Lenders), exhibits to any registration
statement and, if applicable, any registration statements on Form S-8 and other than any filing filed confidentiality with the
SEC or any analogous Governmental Authority in any relevant jurisdiction) and (y) copies of all financial statements, proxy
statements, and material reports that Holdings, the Borrower or any of the Restricted Subsidiaries shall send to the holders of any
publicly issued debt of Holdings, the Borrower and/or any of the Restricted Subsidiaries in their capacity as such holders (in each
case to the extent not theretofore delivered to the Administrative Agent for further delivery to the Lenders pursuant to this
Agreement) and (ii) with reasonable promptness, but subject to the limitations set forth in the last sentence of
Section 9.2 and Section 13.16, such other information (financial or otherwise) as the Administrative Agent on its own
behalf or on behalf of any Lender may reasonably request in writing from time to time.
Documents required to be delivered pursuant to
Sections 9.1(a), 9.1(b) and 9.1(f)(i) may be delivered electronically and if so delivered, shall be deemed to have been delivered
on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet
at the website address listed on Schedule 13.2 or (ii) on which such documents are transmitted by electronic mail to the Administrative
Agent; provided that: (A) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such
documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies
is given by the Administrative Agent and (B) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative
Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper
copies of the certificates required by Section 9.1(d) to the Administrative Agent. Each Lender shall be solely responsible for
timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining
its copies of such documents.
9.2 Books,
Records and Inspections. The Borrower will, and will cause each of the Restricted Subsidiaries to, maintain proper books of record
and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied
shall be made of all material financial transactions and matters involving the assets and business of Holdings, the Borrower or such Restricted
Subsidiary, as the case may be. The Borrower will, and will cause each of the Restricted Subsidiaries to, permit representatives and independent
contractors of the Administrative Agent and the Required Lenders to visit and inspect any of its properties (to the extent it is within
such Person’s control to permit such inspection), to examine its corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants,
all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Borrower (and subject, in the case of any such meetings or advice from such independent
accountants, to such accountants’ customary policies and procedures); provided that, excluding any such visits and inspections
during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative
Agent and the Required Lenders under this Section 9.2 and the Administrative Agent shall not exercise such rights more often than
once during any calendar year absent the existence of an Event of Default at the Borrower’s expense; and provided, further,
that when an Event of Default exists, the Administrative Agent or the Required Lenders (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon
reasonable advance notice. The Administrative Agent and the Required Lenders shall give the Borrower the opportunity to participate in
any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in Section 9.1
or this Section 9.2, none of Holdings, the Borrower or any Restricted Subsidiary will be required to disclose, permit the inspection,
examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non-financial
trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to any Agent or any Lender (or their
respective representatives or contractors) is prohibited by Applicable Law or any binding agreement or (iii) that is subject to attorney-client
or similar privilege or constitutes attorney work product.
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9.3
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Maintenance of Insurance.
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(a) The
Borrower will, and will cause each of the Restricted Subsidiaries to, at all times maintain in full force and effect, with insurance
companies that the Borrower believes (in the good-faith judgment of the management of the Borrower) are financially sound and responsible
at the time the relevant coverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance
which the Borrower believes (in the good-faith judgment of management of the Borrower) is reasonable and prudent in light of the size
and nature of its business) and against at least such risks (and with such risk retentions) as are usually insured against in the same
general area by companies engaged in businesses similar to those engaged by the Borrower and the Restricted Subsidiaries; and will furnish
to the Administrative Agent for further delivery to the Lenders, upon written request from the Administrative Agent, information presented
in reasonable detail as to the insurance so carried. The Collateral Agent, for the benefit of the Secured Parties, shall be the additional
insured on any such liability insurance and the Collateral Agent, for the benefit of the Secured Parties, shall be the additional loss
payee or additional mortgagee under any such casualty or property insurance, except in each case as the Collateral Agent and the Borrower
may otherwise agree.
(b) If
any buildings or improvements comprising of any Mortgaged Property are at any time located in an area identified by the Federal
Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been
made available under the Flood Insurance Laws, then the Borrower shall, or shall cause the applicable Credit Parties to, solely to
the extent required by Applicable Law, (i) maintain, or cause to be maintained, with a financially sound and reputable insurer
(determined at the time such insurance is obtained or renewed), flood insurance in an amount and otherwise sufficient to comply with
all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Collateral
Agent evidence of such compliance in form reasonably acceptable to the Collateral Agent.
9.4 Payment
of Taxes. The Borrower will pay and discharge, and will cause each of the Restricted Subsidiaries to pay and discharge, all material
taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging
to it, prior to the date on which such payments become overdue, and all lawful material claims in respect of taxes imposed, assessed or
levied that, if unpaid, could reasonably be expected to become a material Lien upon any properties of the Borrower or any of the Restricted
Subsidiaries, except to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect;
provided that none of the Borrower or any of the Restricted Subsidiaries shall be required to pay any such tax, assessment, charge,
levy or claim that is being diligently contested in good faith and by proper proceedings if it has maintained adequate reserves (in the
good-faith judgment of the management of the Borrower) with respect thereto in accordance with GAAP or the equivalent accounting principles
in the relevant local jurisdiction.
9.5 Consolidated
Corporate Franchises. The Borrower will do, and will cause each of the Restricted Subsidiaries to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence, corporate rights, privileges and authority, except to the extent
that the failure to do so could not reasonably be expected to have a Material Adverse Effect; provided, however, that the
Borrower and the Restricted Subsidiaries may consummate any transaction permitted under Section 10.3, 10.4 or 10.5.
9.6 Compliance
with Statutes. The Borrower will, and will cause each Restricted Subsidiary to (a) comply with all Applicable Laws, rules, regulations
and orders applicable to it or its property, including, without limitation, (i) the FCPA, (ii) applicable Sanctions and (iii) the
PATRIOT Act, and (b) maintain in effect all governmental approvals or authorizations required to conduct its business, except in
the case of each of clauses (a) and (b), where the failure to do so, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
9.7 ERISA.
As soon as reasonably practicable after the Borrower or any of the Restricted Subsidiaries or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following events that, individually or in the aggregate (including in the aggregate
such events previously disclosed or exempt from disclosure hereunder, to the extent the liability therefor remains outstanding),
would be reasonably likely to have a Material Adverse Effect, the Borrower will deliver to the Administrative Agent a certificate of
an Authorized Officer or any other senior officer of the Borrower setting forth details as to such occurrence and the action, if
any, that the Borrower, such Restricted Subsidiary or such ERISA Affiliate is required or proposes to take, together with any
notices (required, proposed or otherwise) given to or filed with or by the Borrower, such Restricted Subsidiary, such ERISA
Affiliate, the PBGC, or a Multiemployer Plan administrator (provided that if such notice is given by the Multiemployer Plan
administrator, it is given to any of the Borrower or any of the Restricted Subsidiaries or any ERISA Affiliates thereof):
(a) that a Reportable Event has occurred; (b) that there has been a failure to satisfy the minimum funding standard under
Section 412 of the Code or Section 302 of ERISA or an application is to be made to the Secretary of the Treasury for a
waiver or modification of the minimum funding standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Pension Plan; (c) that a Pension Plan having an
Unfunded Current Liability has been or is to be terminated under Title IV of ERISA (including the giving of written notice thereof);
(d) that a Pension Plan has an Unfunded Current Liability that has or will result in a Lien under ERISA or the Code on the
assets of any of Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate; (e) that proceedings will
be or have been instituted by the PBGC to terminate a Pension Plan having an Unfunded Current Liability (including the giving of
written notice thereof); (f) that a proceeding has been instituted against the Borrower, a Restricted Subsidiary thereof or an
ERISA Affiliate pursuant to Section 515 of ERISA to collect a delinquent contribution to a Multiemployer Plan; (g) that
the PBGC has notified the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate of its intention to appoint a trustee
to administer any Pension Plan; (h) that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has failed to
make any required contribution or payment to a Multiemployer Plan; (i) that a determination has been made that any Pension Plan
is in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA or any
Multiemployer Plan is in “endangered or critical status” within the meaning of Section 432 of the Code or
Section 305 of ERISA; (j) that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred (or has
been notified in writing by a Multiemployer Plan administrator that it will incur) any liability (including any contingent or
secondary liability) to or on account of a Pension Plan or Multiemployer Plan pursuant to Section 409, 502(i) 502(l), 515,
4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code; (k) that a Pension Plan or
Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA; (l) that the termination of any
Foreign Plan has occurred that gives rise to liability for Holdings, the Borrower or any Restricted Subsidiary; or (m) that any
non- compliance with any funding requirements under Applicable Law for any Foreign Plan has occurred. Such certificate and notice
shall be provided as soon as reasonably practicable after the Borrower, any Restricted Subsidiary or any ERISA Affiliate knows or
has reason to know of the occurrence of any such event.
9.8 Good
Repair. The Borrower will, and will cause each of the Restricted Subsidiaries to, ensure that its properties and equipment used or
useful in its business in whomsoever’s possession they may be to the extent that it is within the control of such party to cause
same, are kept in good repair, working order and condition, normal wear and tear excepted, and that from time to time there are made in
such properties and equipment all needful and proper repairs, renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner customary for companies in the industry in which the Borrower and the Restricted Subsidiaries
conduct business and consistent with third party leases, except in each case to the extent the failure to do so could not be reasonably
expected to have a Material Adverse Effect.
9.9 End of Fiscal Years; Fiscal Quarters. The Borrower will, for financial reporting purposes, cause (a) each of
its, and each of the Restricted Subsidiaries’, fiscal years to end on December 31 of each year and (b) each of its, and
each of the Restricted Subsidiaries’, fiscal quarters to end on dates consistent with such fiscal year- end and the Borrower’s
past practice; provided, however, that the Borrower may, upon written notice to, and consent by, the Administrative Agent,
change the financial reporting convention specified above to any other financial reporting convention reasonably acceptable to the Administrative
Agent, in which case the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments
to this Agreement that are necessary in order to reflect such change in financial reporting.
9.10 Additional
Guarantors and Grantors. Subject to any applicable limitations set forth in the Guarantee, the Security Agreement, the Pledge Agreement
or any other Security Document, as applicable, the Borrower will cause (i) any direct or indirect Domestic Subsidiary of the Borrower
(other than any Excluded Subsidiary) formed or otherwise purchased or acquired after the Closing Date (including pursuant to an Acquisition)
and (ii) any Domestic Subsidiary of the Borrower that ceases to be an Excluded Subsidiary, to promptly execute and deliver to the
Collateral Agent (A) a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement substantially in the
form of Annex B, Exhibit 1 or Annex A, as applicable, to the respective agreement in order to become a Guarantor under the Guarantee,
a grantor under the Security Agreement and a pledgor under the Pledge Agreement, (B) a counterpart signature page to the Intercompany
Note, and (C) a joinder agreement or such comparable documentation to each other applicable Security Document, substantially
in the form annexed thereto, and to take all actions required thereunder to perfect the Liens created thereunder.
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9.11
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Pledges of Additional Stock and Evidence of Indebtedness.
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(a) Subject
to any applicable limitations set forth in the Security Documents, as applicable, the Borrower will pledge, and, if applicable, will
cause each other Subsidiary Guarantor (or a Person required to become a Subsidiary Guarantor pursuant to Section 9.10) to
pledge, to the Collateral Agent for the benefit of the Secured Parties, (i) all the Capital Stock (other than any Excluded
Capital Stock) of each Subsidiary owned by the Borrower or any Subsidiary Guarantor (or Person required to become a Subsidiary
Guarantor pursuant to Section 9.10), in each case, formed or otherwise purchased or acquired after the Closing Date, pursuant
to a supplement to the Pledge Agreement substantially in the form of Annex A thereto and (ii) except with respect to
intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in excess of $5,000,000
(individually) that are owing to the Borrower or any Subsidiary Guarantor (or Person required to become a Subsidiary Guarantor
pursuant to Section 9.10) (which shall be evidenced by a promissory note), in each case pursuant to a supplement to the Pledge
Agreement substantially in the form of Annex A thereto.
(b) The
Borrower agrees that all Indebtedness of the Borrower and each of its Restricted Subsidiaries that is owing to any Credit Party (or a
Person required to become a Subsidiary Guarantor pursuant to Section 9.10) shall be evidenced by the Intercompany Note, which promissory
note shall be required to be pledged to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Pledge Agreement.
9.12 Use
of Proceeds. The proceeds of the Initial Term Loans (other than the Tranche B Term Loans made on the First Incremental Agreement
Effective Date pursuant to the First Incremental Agreement and other than the Tranche C Term Loans made on the Second Incremental Agreement
Effective Date pursuant to the Second Incremental Agreement) and the Initial Revolving Borrowing Amount shall be used (a) on the
Closing Date, together with cash on hand at the Target and its Subsidiaries and the proceeds from the Equity Contribution to pay the
Merger Consideration, the Existing Debt Refinancing and/or the Transaction Expenses and (b) to the extent any proceeds remain after
the application described in clause (a), on and after the Closing Date, for other general corporate purposes of the Borrower and its
Subsidiaries. The proceeds of the Revolving Credit Loans available under any Revolving Credit Facility (including
under the Incremental Revolving Credit Commitment Increase), together with the proceeds
of the Swingline Loans and the Letters of Credit, will be used for working capital requirements and other general corporate purposes
of the Borrower and its Subsidiaries, including the financing of acquisitions, other Investments and Restricted Payments and other distributions
on account of the Capital Stock of the Borrower (or any Parent Entity thereof), in each case permitted hereunder, and any other use not
prohibited hereby. The proceeds of the Tranche B Term Loans made on the First Incremental Agreement Effective Date pursuant to the First
Incremental Agreement shall be used on the First Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans
outstanding hereunder as of the First Incremental Agreement Effective Date (immediately prior to giving effect to the First Incremental
Agreement), all accrued and unpaid interest thereon and all other Obligations in respect thereof and (b) to pay the fees, expenses
and other amounts incurred in connection with the transactions contemplated by the First Incremental Agreement. The proceeds of the Tranche
C Term Loans made on the Second Incremental Agreement Effective Date pursuant to the Second Incremental Agreement shall be used on the
Second Incremental Agreement Effective Date, (a) to prepay in full all Initial Term Loans outstanding hereunder as of the Second
Incremental Agreement Effective Date (immediately prior to giving effect to the Second Incremental Agreement), all accrued and unpaid
interest thereon and all other Obligations in respect thereof, (b) to pay the fees, expenses and other amounts incurred in connection
with the transactions contemplated by the Second Incremental Agreement and (c) other general corporate purposes of the Borrower
and its Subsidiaries, which may include the financing of acquisitions and other Investments, and any other use not prohibited hereby,
and any other use not prohibited hereby. The proceeds of anythe
2019 Incremental Term Loans shall be used (i) to pay the Acquisition Consideration (as defined in the Third Incremental Agreement),
(ii) to pay the costs associated with the 2019 Transactions, (iii) to pay for the Refinancing (as defined in the Third Incremental
Agreement) and (iv) to the extent any proceeds remain after the application described in clauses (i)-(iii), for other general corporate
purposes of the Borrower and its Subsidiaries, which may include, at the option of the Borrower, funding cash to the balance sheet and/or
repaying Revolving Credit Loans outstanding under the Revolving Credit Facility, or the financing of acquisitions and other Investments.
The proceeds of any other Incremental Term Loan Facility, the proceeds of any Revolving Credit Loans made pursuant to
any Incremental Revolving Credit Commitment Increase and the proceeds of any Additional/Replacement Revolving Credit Loans or Extended
Revolving Credit Loans made pursuant to any Additional/Replacement Revolving Credit Commitments or Extended Revolving Credit Commitments,
as applicable, may be used for working capital requirements and other general corporate purposes of the Borrower and its Subsidiaries
including the financing of acquisitions, other Investments and Restricted Payments and other distributions on account of the Capital
Stock of the Borrower (or any Parent Entity thereof), in each case permitted hereunder, and any other use not prohibited hereby.
9.13 Changes
in Business. The Borrower and its Restricted Subsidiaries, taken as a whole, will not fundamentally and substantively alter the character
of their business, taken as a whole, from the business conducted by the Borrower and its Restricted Subsidiaries, taken as a whole, on
the Closing Date and other similar, incidental, ancillary, supportive, complementary, synergetic or related businesses or reasonable
extensions thereof (and non- core incidental businesses acquired in connection with any Acquisition or Investment or other immaterial
businesses).
(a) Subject
to the limitations set forth in this Agreement and the Security Documents, Holdings and the Borrower will, and will cause each other Subsidiary
Guarantor to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings, Mortgages and other similar documents), that may be required
under any Applicable Law, or that the Collateral Agent or the Required Lenders may reasonably request, in order to grant, preserve, protect
and perfect the validity and priority of the security interests created or intended to be created by the Security Documents, all at the
expense of the Borrower and its Restricted Subsidiaries.
(b) Subject
to any applicable limitations set forth in the Security Documents and in Sections 9.10 and 9.11, (i) if any Material Real Property
is acquired by any Credit Party after the Closing Date or, (ii) if any Credit Party that becomes a Credit Party after the Closing
Date owns any Material Real Property, the Borrower will notify the Collateral Agent (who shall thereafter notify the Lenders) thereof
and will, within 90 days after the acquisition of such Material Real Property or within 90 days of the date on which the applicable Credit
Party became a Credit Party, as applicable, (or such longer period as may be agreed by the Collateral Agent in its sole discretion), cause
such Material Real Property to be subjected to a Mortgage (provided, however, that, in the event any Material Real Property
subject to a Mortgage under this Section is located in a jurisdiction that imposes mortgage recording taxes or any similar fees or
charges, such Mortgage shall only secure an amount equal to the Fair Market Value of such Material Real Property) and will take, and cause
the Subsidiary Guarantors to take, such other actions as shall be necessary or reasonably requested by the Collateral Agent to grant and
perfect a Lien on such Material Real Property consistent with the applicable requirements of the Security Documents, including actions
described in Section 9.14(a) and Section 9.14(c), all at the expense of the Credit Parties.
(c) Any
Mortgage delivered to the Collateral Agent in accordance with Sections 9.14(b) shall be accompanied by:
(i) (i) a
completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged
Property and with respect to each Mortgaged Property that is: (x) in an area designated by the Federal Emergency Management Agency
as being located in a special flood hazard area, and (y) contains “improved real estate” or a “mobile home”
(as defined by the Flood Insurance Laws) within such special flood hazard area (a “Flood Hazard Property”), (ii) Borrower’s
written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such asset is a Flood Hazard Property
and as to whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program and
(iii) evidence of flood insurance in form and substance reasonably satisfactory to the Collateral Agent and in an amount required
by Section 9.3(b) (collectively, the “Flood Documents”); provided that the Flood Documents shall be
delivered to the Collateral Agent in accordance with Section 9.14(f);
(ii) a
policy or policies of title insurance or a marked unconditional commitment or binder thereof issued by a nationally recognized title
insurance company insuring title to such Mortgaged Property is vested in such Credit Party for an amount not to exceed the
Fair Market Value (determined at the time described in Section 9.14(b) above) and together with such endorsements as the
Collateral Agent may reasonably request and which are available at commercially reasonable rates in the jurisdiction where the
applicable Mortgaged Property is located;
(iii) unless
the Collateral Agent shall have otherwise agreed, but only to the extent already prepared and otherwise available, either (A) a
survey of the applicable Mortgaged Property for which all necessary fees (where applicable) have been paid (1) prepared by a surveyor
reasonably acceptable to the Collateral Agent, (2) dated or re-certificated not earlier than three months prior to the date of such
delivery or such other date as may be reasonably satisfactory to the Collateral Agent in its sole discretion, (3) for Mortgaged
Property situated in the United States, certified to the Collateral Agent and the title insurance company issuing the title insurance
policy for such Mortgaged Property pursuant to clause (ii), which certification shall be reasonably acceptable to the Collateral Agent
and (4) for Mortgaged Property situated in the United States, complying with current “Minimum Standard Detail Requirements
for ALTA/NSPS Land Title Surveys,” jointly established and adopted by American Land Title Association, the American Congress
on Surveying and Mapping and the National Society of Professional Surveyors (except for such deviations as are acceptable to the Collateral
Agent) or (B) coverage under the title insurance policy or policies referred to in clause (ii) above that does not contain
a general exception for survey matters and which contains survey-related endorsements reasonably acceptable to the Collateral Agent;
and
(iv) opinions
of counsel to the Credit Party mortgagor with respect to the enforceability, due authorization, execution and delivery of the applicable
Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Collateral Agent.
(d) Notwithstanding
anything herein to the contrary, if the Collateral Agent and the Borrower reasonably determine in writing that the time or cost of creating
or perfecting any Lien on any property (including the time and cost required to obtain the flood insurance required under Section 9.14(c)(i))
is excessive in relation to the benefits afforded to the Lenders thereby, then such property may be excluded from the Collateral for
all purposes of the Credit Documents.
(e) Notwithstanding
anything herein to the contrary, the Credit Parties shall not be required to take any actions outside the United States, to (i) create
any security interest in assets titled or located outside the United States, or (ii) perfect or make enforceable any security interests
in any Collateral.
(f) Notwithstanding
anything contained in this Agreement to the contrary, at least twenty days prior to the date on which any Mortgage shall be executed and
delivered with respect to any Material Real Property, the Borrower (or such other applicable Credit Party) shall deliver the Flood Documents
with respect to such Material Real Property to the Collateral Agent for prompt distribution to each Revolving Credit Lender; provided
that (x) each Revolving Credit Lender shall advise the Collateral Agent promptly upon completion of its flood insurance diligence
and compliance and (y) if any Revolving Credit Lender has notified the Collateral Agent in writing (who shall promptly notify the
Borrower) during such twenty day period commencing from the date on which such Revolving Credit Lender receives the Flood Documents that
its flood insurance diligence and compliance has not been completed, the relevant Credit Party shall instead execute and deliver such
Mortgage within three Business Days of receipt of written notice from the Collateral Agent (from the date of notice from such Revolving
Credit Lender to the Collateral Agent) that such flood insurance diligence is complete (or such longer period as may be agreed by the
Collateral Agent in its sole discretion); provided, further that (i) no delay in the execution by any Credit Party
of any Mortgage as a result of the application of, and compliance with, this sentence shall result in a breach of any obligation or the
occurrence of a Default or Event of Default hereunder or under any other Credit Document and (ii) for the avoidance of doubt, in
no event shall the application of, and compliance with, this sentence require the delivery of Mortgages or any other related documentation
or deliverables prior to the date that is 90 days after the acquisition of such Material Real Property or within 90 days of the date on
which the applicable Credit Party became a Credit Party, as applicable.
9.15 Designation
of Subsidiaries. The Board of Directors of the Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary
or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that immediately before and after such designation, no Event
of Default shall have occurred and be continuing. The designation of any Subsidiary as an Unrestricted Subsidiary after the Closing Date
shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the Fair Market Value of the Borrower’s
Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the Incurrence at the
time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time. Upon any such designation
of any Unrestricted Subsidiary as a Restricted Subsidiary (but without duplication of any amount reducing such Investment in such Unrestricted
Subsidiary pursuant to the definition of “Investment” or the definition of “Available Amount”), the Borrower
and/or the applicable Restricted Subsidiaries shall receive a credit against the applicable clause in Section 10.5 or Section 10.6
that was utilized for the Investment in such Unrestricted Subsidiary for all Returns in respect of such Investment.
9.16 Maintenance
of Ratings. The Borrower will use commercially reasonable efforts to cause the public credit rating for the Initial Term Loan Facility
and the 2019 Incremental Term Facility issued by S&P and the public credit rating for the
Initial Term Loan Facility and the 2019 Incremental Term Facility issued by Moody’s, and
the Borrower’s public corporate credit rating issued by S&P and public corporate credit rating issued by Moody’s to each
be maintained (but not to obtain or maintain a specific rating).
9.17 Post-Closing
Obligations. To the extent not executed and delivered on the Closing Date, unless otherwise agreed by the Administrative Agent in
its reasonable discretion, execute and deliver the documents and complete the tasks set forth on Schedule 9.17, in each case within the
time limits specified on such schedule (or such later time as the Administrative Agent shall agree in its reasonable discretion).
SECTION 10.
Negative Covenants. The Borrower (and, with respect to Section 10.9, Holdings) hereby covenants and agrees that on
the Closing Date and thereafter, until the Total Commitment and all Letters of Credit have terminated (unless such Letters of Credit have
been Cash Collateralized on terms and conditions set forth in Section 3.8) and the Loans and Unpaid Drawings, together with interest,
fees and all other payment Obligations (other than Hedging Obligations under Secured Hedging Agreements, Cash Management Obligations under
Secured Cash Management Agreements or contingent indemnification or other contingent obligations not then due and payable), are paid in
full:
10.1 Limitation
on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, Incur,
contingently or otherwise, with respect to any Indebtedness, except:
(a) (i) Indebtedness
arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Agreement Refinancing Indebtedness
Incurred to Refinance (in whole or in part) such Indebtedness;
(c) (i) Indebtedness
constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letters of credit, warehouse receipt
or similar facilities entered into in the ordinary course of business or consistent with past practice (including in respect of workers
compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self- insurance or
other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims, health, disability or other employee
benefits or property, casualty or liability insurance or self-insurance) and (ii) Indebtedness supported by Letters of Credit or
other letters of credit under similar facilities in an amount not to exceed the Stated Amount of such Letters of Credit or stated amount
of such other letters of credit under such similar facilities;
(d) Except
as otherwise limited by clauses (a), (b), (h) and (u) of this Section 10.1, Guarantee Obligations Incurred by (i) any
Restricted Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiary that is permitted to be Incurred under
this Agreement and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiary that is permitted to be Incurred under
this Agreement; provided that, if the applicable Indebtedness is subordinated to the Obligations, any such Guarantee Obligations
shall be subordinated to the Obligations;
(e) Guarantee
Obligations Incurred in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors, licensees,
sublicensees or distribution partners;
(f) (i) Indebtedness
(including Financing Lease Obligations and other Indebtedness arising under mortgage financings and purchase money Indebtedness (including
any industrial revenue bond, industrial development bond or similar financings)) the proceeds of which are used to finance the acquisition,
development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of fixed or capital assets
or otherwise Incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is Incurred concurrently with
or within 270 days after the completion of the applicable acquisition, development, construction, repair, restoration, replacement, maintenance,
upgrade, expansion or improvement or the making of the applicable Capital Expenditure and (B) such Indebtedness is not Incurred
to acquire Capital Stock of any Person; provided, further, that, at the time of Incurrence thereof and after giving pro
forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant
to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in
respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”,
exceed an amount equal to (I) the greater of (x) $10,000,000 and (y) 20%
of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date
of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered
on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(g) and
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness;
(g) (i) Indebtedness
constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Closing Date (and set forth on Schedule
10.1) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at the time of Incurrence thereof
and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then
outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant
to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted
Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $10,000,000 and (y) 20% of Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence
(measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior
to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any
Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness.
(h) Closing
Date Indebtedness and any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness
in respect of Hedging Agreements Incurred in the ordinary course of business or consistent with past practice and, in each case, at the
time entered into, not for speculative purposes;
(j) (i) Indebtedness
of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted
Subsidiary that survives a merger, consolidation or amalgamation with such Person or any of its Subsidiaries) or Indebtedness attaching
to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Closing Date as the result of an Acquisition
or similar Investment or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary; provided
that
(A) subject
to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred
and is continuing;
(B) subject
to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such
Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower
and the Restricted Subsidiaries shall be in compliance on a pro forma basis, with either (X) a Consolidated EBITDA to Consolidated
Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date
of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of
such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest
Expense Ratio immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total
Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to
the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had
occurred on the first day of such Test Period of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated
Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) such
Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case,
was not created in anticipation thereof;
(D) such
Indebtedness is not guaranteed in any respect by Holdings, the Borrower or any Restricted Subsidiary (other than any such Person that
so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries) except to the extent permitted
under Section 10.5 or Section 10.6;
(E) (x) the
Capital Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such Person
executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and security
arrangements in relation to the Obligations) and a counterpart signature page to the Intercompany Notes, in each case to the extent
required under Section 9.10, 9.11 or 9.14(b), as applicable; provided that the requirements of this clause (E) shall not apply
to any Indebtedness of the type that could have been Incurred under Section 10.1(f) or Section 10.1(g); and
(ii) any
Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(k) (i) Indebtedness
of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition or similar Investment; provided that
(A) subject
to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred
and is continuing;
(B) subject
to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such
Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower
and the Restricted Subsidiaries shall be in compliance on a pro forma basis with either (X) a Consolidated EBITDA to Consolidated
Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date
of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of
such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest
Expense Ratio immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total
Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior
to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring
had occurred on the first day of such Test Period of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated
Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) the
terms of such Indebtedness do not provide for any scheduled repayment (including at maturity), mandatory repayment, redemption, repurchase,
defeasance, acquisition, similar payment or sinking fund obligation prior to the Latest Maturity Date, other than customary prepayments,
repurchases, redemptions, defeasances or similar payments of, or offers to prepay, redeem, repurchase, defease, acquire or similarly pay
upon, a change of control, asset sale event or casualty, eminent domain or condemnation event or on account of the accumulation of excess
cash flow and customary acceleration rights upon an event of default;
(D) if
such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall not be guaranteed
in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section 10.5;
(E) (x) the
Capital Stock of any Person acquired in such Acquisitions or similar Investment (the “acquired Person”) is pledged
to the Collateral Agent to the extent required under Section 9.11 and (y) such acquired Person executes a supplement to each
of the Guarantee, the Security Agreement and the Pledge Agreement and a counterpart signature page to the Intercompany Note (or alternative
guarantee and security arrangements in relation to the Obligations), in each case, to the extent required under Section 9.10, 9.11
or 9.14(b), as applicable;
(F) the
terms of such Indebtedness shall be consistent with the requirements set forth in clause (b) and, if applicable, clause (f), of the
proviso to the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized Officer of the
Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness, together with
a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto,
stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive
evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within
such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees); and
(G) at
the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions being consummated
in connection therewith and the use of the proceeds thereof, the aggregate principal amount of all Indebtedness Incurred by Non- Credit
Parties pursuant to, and then outstanding under, this Section 10.1(k), when aggregated with the aggregate principal amount of (1) all
other Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to Section 10.1(s) and (2) all Permitted
Refinancing Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to clause (ii) of this Section 10.1(k),
shall not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x) $15,000,000
and (y) 30% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or
prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most
recently delivered on or prior to such date);
(ii) any
Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(l) (i) unsecured
Indebtedness in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services
or progress payments in connection with such goods and services; provided that such obligations are Incurred in connection
with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing
of money and (ii) unsecured Indebtedness in respect of intercompany obligations of the Borrower or any Restricted Subsidiary in
respect of accounts payable Incurred in connection with goods sold or services rendered in the ordinary course of business and not in
connection with the borrowing of money;
(m) Indebtedness
arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, earn-outs,
deferred purchase price, payment obligations in respect of any non-compete, consulting or similar arrangement, contingent earnout obligations
or similar obligations (including earn-outs), in each case entered into in connection with the Transactions, Acquisitions, other Investments
and the Disposition of any business, assets or Capital Stock permitted hereunder, other than Guarantee Obligations Incurred by any Person
acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing such acquisition, but including in
connection with Guarantee Obligations, letters of credit, surety bonds on performance bonds securing the performance of the Borrower or
any such Restricted Subsidiary pursuant to such agreements;
(n) Indebtedness
in respect of contracts (including trade contracts and government contracts), statutory obligations, performance bonds, bid bonds, custom
bonds, stay and appeal bonds, surety bonds, indemnity bonds, judgment bonds, performance and completion and return of money bonds and
guarantees, financial assurances, bankers’ acceptance facilities and similar obligations or obligations in respect of letters of
credit, bank guarantees or similar instruments related thereto, in each case not in connection with the borrowing of money, including
those incurred to secure health, safety and environmental obligations;
(o) Indebtedness
of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take or pay obligations
contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money;
(p) (i) Indebtedness
representing deferred compensation to officers, directors, managers, employees, consultants or independent contractors of Holdings (or
any Parent Entity thereof or any Equityholding Vehicle), the Borrower and the Restricted Subsidiaries Incurred in the ordinary course
of business and (ii) Indebtedness consisting of obligations of Holdings (or any Parent Entity thereof or any Equityholding Vehicle),
the Borrower or the Restricted Subsidiaries under deferred compensation arrangements to their officers, directors, managers, employees,
consultants or independent contractors or other similar arrangements Incurred by such Persons in connection with the Transactions, Acquisitions
or any other Investment permitted under Section 10.5 or Section 10.6;
(q) unsecured
Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to future, current or former officers,
managers, consultants, directors, employees and independent contractors (or their respective Immediate Family Members) of Holdings, the
Borrower, any of its Subsidiaries or any Parent Entity or Equityholding Vehicle, in each case, to finance the retirement, acquisition,
repurchase or redemption of Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle to the extent such Parent
Entity or any Equityholding Vehicle uses the proceeds to finance the purchase or redemption (directly or indirectly) of its Capital Stock)
or the Capital Stock of the Borrower, in each case to the extent permitted by Section 10.6; provided that, any such Indebtedness
shall reduce availability under Section 10.6 to the extent of any amounts incurred from time to time under this Section 10.1(q),
whether or not outstanding, except in respect of amounts forgiven or cancelled without payment being made;
(r) Cash
Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements,
employees’ credit or purchase cards, overdraft protections and similar arrangements and otherwise in connection with deposit accounts
and repurchase agreements permitted under Section 10.5;
(s) additional
senior, senior subordinated or subordinated Indebtedness of the Borrower and the Restricted Subsidiaries, and Permitted Refinancing Indebtedness
thereof; provided that, after giving pro forma effect to the Incurrence of any such Indebtedness and any Specified Transaction
or Specified Restructuring to be consummated in connection therewith, the Borrower and Restricted Subsidiaries shall be in compliance
on a pro forma basis with either (x) a Consolidated EBITDA to Consolidated Interest Expense Ratio, as such ratio is calculated as
of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, acquisition,
Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of not less than 2.00:1.00 or (y) a
Consolidated Total Debt to Consolidated EBITDA Ratio of less than or equal to 6.50:1.00, as such ratio is calculated as of the last day
of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, acquisition, Specified Transaction
and Specified Restructuring occurred on the first day of such Test Period; provided, that, at the time any such Indebtedness is
Incurred and after giving pro forma effect to such Incurrence and any other transactions being consummated in connection therewith and
the use of the proceeds thereof, the aggregate principal amount of all Indebtedness Incurred and then outstanding under this Section 10.1(s) by
Non-Credit Parties, when aggregated with the aggregate principal amount of (1) all other Indebtedness Incurred by Non-Credit Parties
and then outstanding pursuant to Section 10.1(k) and (2) Permitted Refinancing Indebtedness Incurred pursuant to, and then
outstanding under, this clause (s) to Refinance Indebtedness of Non-Credit Parties, shall not exceed, except as contemplated by the
definition of “Permitted Refinancing Indebtedness”, the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA
of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured
as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
provided, further, that the terms of such Indebtedness shall be consistent with the requirements of clause (b) and,
if applicable, clause (f) of the proviso of the definition of “Permitted Additional Debt”; provided that a certificate
of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of
such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts
of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the
foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative
Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description
of the basis upon which it disagrees);
(t) (i) Indebtedness
Incurred in connection with any Sale Leaseback and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness;
(u) Indebtedness
in respect of (i) Permitted Additional Debt, the Net Cash Proceeds from which or, in the case of commitments, the new commitments
of which, are required to be applied to (x) prepay the Term
Loans and related amounts in the manner set forth in Section 5.2(a)(i) or (y) permanently reduce Revolving Credit Commitments,
Extended Revolving Credit Commitments or Additional/Replacement Revolving Credit Commitments in the manner set forth in Section 5.2(e)(ii) (and
any such Permitted Additional Debt shall be deemed to have been Incurred pursuant to this clause (i)), (ii) other Permitted Additional
Debt; provided that, in the case of this clause (ii), at the time of Incurrence or provision thereof and after giving pro forma
effect thereto and such other transactions being consummated in connection therewith and the use of the proceeds thereof, assuming that
all commitments, if any, thereunder were fully drawn, the aggregate principal amount of (X) all such Indebtedness Incurred or provided
under this Section 10.1(u)(ii) plus (Y) any Incremental Term Loans (other than those Incremental Term Loans Incurred
under the proviso to Section 2.14(b)), any Incremental Revolving Credit Commitment Increases and any Additional/Replacement Revolving
Credit Commitments (other than those Additional/Replacement Revolving Credit Commitments Incurred or provided under the proviso to Section 2.14(b))
that, in each case, have been Incurred or provided pursuant to Section 2.14(b)(A), shall not exceed the sum of (A) the Incremental
Base Amount plus (B) an aggregate amount of Indebtedness, such that, after giving pro forma effect to such Incurrence (and
after giving pro forma effect to any Specified Transaction or Specified Restructuring to be consummated in connection therewith and assuming
that all Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments then outstanding and
Incurred under Section 2.14(b)(B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien
Debt to Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most recently ended on or prior to the Incurrence
of any such Permitted Additional Debt, calculated on a pro forma basis, as if such Incurrence (and any related transaction) had occurred
on the first day of such Test Period, that is no greater than either (x) 5.24.95:1.00
or (y) if Incurred in connection with an Acquisition or similar Investment, no greater than prior Consolidated First Lien Debt to
Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment; provided, however, that, in the
case of the Incurrence of any Indebtedness under this clause (ii) that does not constitute or is not intended to constitute First
Lien Obligations, in lieu of compliance with the Consolidated First Lien Debt to Consolidated EBITDA Ratio set forth above, the Borrower
shall be in compliance with a Consolidated Total Debt to Consolidated EBITDA Ratio, calculated as of the last day of the Test Period
most recently ended on or prior to the Incurrence of any such Permitted Additional Debt, calculated on a pro forma basis (but excluding
cash proceeds of such Incurrence), as if such Incurrence (and any related transaction) had occurred on the first day of such Test Period,
that is no greater than either (x) 6.50:1.00 or (y) if Incurred in connection with an Acquisition or similar Investment, no
greater than prior Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Acquisition or similar Investment (the
ratio thresholds set forth in this clause (ii), the “Incremental Ratio Debt Amount”); provided, further,
that, in each case of this clause (ii), subject to Section 1.11, no Event of Default (or, in the case of the Incurrence or provision
of Permitted Additional Debt in connection with an Acquisition or similar Investment, no Event of Default under either Section 11.1
or 11.5) shall have occurred and be continuing at the time of the Incurrence or provision of any such Indebtedness or after giving pro
forma effect thereto and (iii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness; provided that,
without limitation of the requirements set forth in the definition of “Permitted Refinancing Indebtedness”, such Permitted
Refinancing Indebtedness shall be of the type described in the definition of “Permitted Additional Debt”;
(v) Indebtedness
of Non-Credit Parties; provided that, at the time of the Incurrence thereof and after giving pro forma effect to such Incurrence
and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding in reliance
on this Section 10.1(v) shall not exceed the greater of (x) $15,000,000 and (y) 30% of Consolidated EBITDA of the
Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is
Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
(w) unsecured
Indebtedness in the amount equal to the sum of (i) any Excluded Contribution to the extent not counted for purposes of the Available
Equity Amount or Cure Amount and (ii) the Available RP Capacity Amount; provided that the maturity date of such Indebtedness
is not earlier than the Latest Maturity Date;
(x) Indebtedness
of the Borrower and the Restricted Subsidiaries; provided that, at the time of the Incurrence thereof and after giving pro forma
effect to such Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness the
outstanding under this Section 10.1(x) shall not exceed the greater of (x) $37,500,000 and (y) 75% of Consolidated
EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness
is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
(y) (i) Indebtedness
of the Borrower or any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary; provided that any such
Indebtedness owing by a Credit Party to a Subsidiary that is not a Subsidiary Guarantor (other than any Indebtedness in respect of
accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with past
practice (and not in connection with the borrowing of money)) shall be evidenced by the Intercompany Note and (ii) Indebtedness
in respect of shares of Disqualified Capital Stock of a Restricted Subsidiary issued to the Borrower or another Restricted
Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any
such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer (other than the incurrence of a
lien permitted by Section 10.2) of any such shares of Disqualified Capital Stock (except to the Borrower or another of
the Restricted Subsidiaries or any pledge of such Capital Stock constituting a lien permitted by Section 10.2 (but not
foreclosure thereon)) shall be deemed in each case to be an issuance of such shares of Disqualified Capital Stock (to the extent
such Disqualified Capital Stock is then outstanding) not permitted by this clause;
(z) Indebtedness
in respect of commercial letters of credit obtained in the ordinary course of business;
(aa) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft
or similar instrument drawn against insufficient funds in the ordinary course of business;
(bb) customer deposits and advance payments received in the ordinary course of business from customers
for goods or services purchased in the ordinary course of business;
(cc) Indebtedness Incurred 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 on a recourse basis;
(dd) Indebtedness of the Borrower or any Restricted Subsidiary undertaken in connection with cash management
and related activities with respect to any Subsidiary or Joint Venture in the ordinary course of business;
(ee) Indebtedness arising solely as a result of the existence of any Lien (other than for Liens securing debt for borrowed money) permitted
under Section 10.2;
(ff) Indebtedness
of any Receivables Subsidiary arising under a Qualified Receivables Facility;
(gg) Indebtedness to the seller of any business or assets permitted to be acquired by the Borrower or any Restricted Subsidiary under
this Agreement; provided that, at the time of the Incurrence thereof and after giving pro forma effect to such Incurrence and other
transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding in reliance on this
Section 10.1(ii) shall not exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower
and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of such date)
based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(hh) obligations in respect of Disqualified Capital Stock; provided that, at the time of the Incurrence thereof and after giving
pro forma effect to such Incurrence and other transactions and the use of the proceeds thereof, the aggregate principal amount of Indebtedness
then outstanding under this clause (hh) shall not exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of
the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured
as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(ii) endorsement
of instruments or other payment items for deposit in the ordinary course of business;
(jj) performance Guarantees of the Borrower and its Restricted Subsidiaries primarily guaranteeing performance
of contractual obligations of the Borrower or Restricted Subsidiaries to a third party and not primarily for the purpose of guaranteeing
payment of Indebtedness;
(kk) obligations
in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Subsidiary of
the 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) to
the extent constituting Indebtedness, the 2017 Contingent Value Rights;
(mm) unfunded pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to
the extent they do not result in an Event of Default under Section 11.6; and
(nn) all customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional
or contingent interest on obligations described in each of the clauses of this Section 10.1.
For purposes of determining
compliance with this Section 10.1, in the event that an item of Indebtedness meets the criteria of more than one of the categories
of Indebtedness described above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify
all or a portion of such item of Indebtedness (or any portion thereof and including as between the Incremental Base Amount and the Incremental
Ratio Debt Amount) in a manner that complies with this Section 10.1 and will only be required to include the amount and type of such
Indebtedness in one or more of the above clauses; provided that all Indebtedness outstanding under the Credit Documents and any
Credit Agreement Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness will be deemed to have been Incurred
in reliance only on the exception set forth in Section 10.1(a) (but without limiting the right of the Borrower to classify and
reclassify, or later divide, classify or reclassify, Indebtedness incurred under Section 2.14 or Section 10.1(u) as
between the Incremental Base Amount and the Incremental Ratio Debt Amount). The accrual of interest, the accretion of accreted value and
the payment of interest in the form of additional Indebtedness shall not be deemed to be an Incurrence of Indebtedness for purposes of
this Section 10.1.
At the time of Incurrence,
the Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in
the paragraphs above. It is understood and agreed that any Indebtedness in the form of loans secured by Liens on the Collateral having
a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but without regard to control of remedies)
shall be subject to the MFN Protection set forth in Section 2.14(c) (but subject to the MFN Exceptions to such MFN Protection)
as if such Indebtedness were an Incremental Term Loan.
10.2 Limitation
on Liens. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien upon any property or assets of any kind (real or personal, tangible or intangible) of the Borrower
or any Restricted Subsidiary, whether now owned or hereafter acquired, except:
(a) Liens
created pursuant to (i) the Credit Documents to secure the Obligations (including Liens permitted pursuant to Section 3.8)
or permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage, (ii) the Permitted Additional Debt
Documents securing Permitted Additional Debt Obligations permitted to be Incurred under Section 10.1(u) (provided
that such Liens do not extend to any assets that are not Collateral) and (iii) the documentation governing any Credit Agreement
Refinancing Indebtedness (provided that such Liens do not extend to any assets that are not Collateral); provided
that, (A) in the case of Liens described in subclause (ii) or (iii) above securing Permitted Additional Debt
Obligations or Credit Agreement Refinancing Indebtedness that constitute, or are intended to constitute, First Lien Obligations, the
applicable Permitted Additional Debt Secured Parties or parties to such Credit Agreement Refinancing Indebtedness (or a
representative thereof on behalf of such holders) shall have entered into with the Collateral Agent a Customary Intercreditor
Agreement which agreement shall provide that the Liens on the Collateral securing such Permitted Additional Debt Obligations or
Credit Agreement Refinancing Indebtedness shall have the same priority ranking as the Liens on the Collateral securing the
Obligations (but without regard to control of remedies) and (B) in the case of Liens described in subclause (ii) or
(iii) above securing Permitted Additional Debt Obligations or Credit Agreement Refinancing Indebtedness that do not constitute,
or are not intended to constitute, First Lien Obligations,the applicable Permitted Additional Debt Secured Parties or parties to
such Credit Agreement Refinancing Indebtedness (or a representative thereof on behalf of such holders) shall have entered into a
Customary Intercreditor Agreement with the Collateral Agent which agreement shall provide that the Liens on the Collateral securing
such Permitted Additional Debt Obligations or Credit Agreement Refinancing Indebtedness, as applicable, shall rank junior in
priority to the Liens on the Collateral securing the Obligations and any other First Lien Obligations. Without any further consent
of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to negotiate, execute and deliver on behalf of
the Secured Parties any Customary Intercreditor Agreement or any amendment (or amendment and restatement) to the Security Documents
or a Customary Intercreditor Agreement to the extent necessary to effect the provisions contemplated by this
Section 10.2(a);
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(b)
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Permitted Encumbrances;
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(c) Liens
securing Indebtedness permitted pursuant to Section 10.1(f) or Section 10.1(g) (including the interests of vendors
and lessors under conditional sale and title retention agreements); provided that (i) such Liens attach concurrently with
or within 270 days after the acquisition, lease, repair, replacement, restoration, construction, expansion or improvement (as applicable)
of the property subject to such Liens or the making of the applicable Capital Expenditures, (ii) other than the property financed
by such Indebtedness, such Liens do not at any time encumber any property, except for replacements thereof and accessions and additions
to such property and ancillary rights thereto and the proceeds and the products thereof and customary security deposits, related contract
rights and payment intangibles and other assets related thereto and (iii) with respect to Financing Lease Obligations, such Liens
do not at any time extend to, or cover any assets (except for accessions and additions to such assets, replacements and products thereof
and customary security deposits, related contract rights and payment intangibles), other than the assets subject to such Financing Lease
Obligations and ancillary rights thereto; provided that individual financings of equipment provided by one lender may be cross
collateralized to other financings of equipment provided by such lender;
(d) Liens
on property and assets existing on the Closing Date or pursuant to agreements in existence on the Closing Date and listed on Schedule
10.2 or, to the extent not listed in such Schedule, such property or assets have a Fair Market Value that does not exceed $2,500,000 in
the aggregate; provided that (i) such Lien does not extend to any other property or asset of the Borrower or any Restricted
Subsidiary, other than (A) after acquired property that is affixed or incorporated into the property covered by such Lien or financed
by Indebtedness permitted by Section 10.1 and (B) the proceeds and products thereof and (ii) such Lien shall secure only
those obligations that such Liens secured on the Closing Date and any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness
permitted by Section 10.1;
(e) the
modification, Refinancing, replacement, extension or renewal (or successive modifications, Refinancings, replacements, extensions or
renewals) of any Lien permitted by clauses (c), (d), (f), (p), (t), (u) and (bb) of this Section 10.2 upon or in the same assets
theretofore subject to such Lien other than (i) after-acquired property that is affixed or incorporated into the property covered
by such Lien, (ii) in the case of Liens permitted by clauses (f), (t), (u) or (bb), after-acquired property subject to
a Lien securing Indebtedness permitted under Section 10.1, the terms of which Indebtedness require or include a pledge of after-acquired
property (it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not
have applied but for such acquisition) and (iii) the proceeds and products thereof;
(f) Liens
existing on the assets, or shares of Capital Stock, of any Person that becomes a Restricted Subsidiary (including by designation as
a Restricted Subsidiary pursuant to Section 9.15), or existing on assets acquired, pursuant to an Acquisition or other similar
Investment permitted under Section 10.5 or Section 10.6 to the extent the Liens on such assets secure Indebtedness
permitted by Section 10.1(j); provided that such Liens attach at all times only to the same assets that such Liens
attached to (other than (i) after-acquired property that is affixed or incorporated into the property covered by such Lien,
(ii) after-acquired property subject to a Lien securing Indebtedness permitted under Section 10.1(j), the terms of which
Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be
permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (iii) the
proceeds and products thereof), and secure only, the same Indebtedness or obligations (or any Permitted Refinancing Indebtedness
Incurred to Refinance such Indebtedness permitted by Section 10.1) that such Liens secured, immediately prior to such
Acquisition or such other Investment, as applicable;
(g) Liens
arising out of any license, sublicense or cross-license of Intellectual Property permitted under Section 10.4;
(h) Liens
securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary in favor of the Borrower or any Restricted Subsidiary;
(i) Liens
(i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching
to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii) in favor
of a banking institution arising as a matter of law encumbering deposits (including the right to set off) and which are within the general
parameters customary in the banking industry;
(j) Liens
(i) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant
to Section 10.5 or Section 10.6 to be applied against the purchase price for such Investment (or to secure letters of credit,
bank guarantee or similar instruments posted or issued in respect thereof), and (ii) consisting of an agreement to sell, transfer,
lease or otherwise Dispose of any property in a transaction permitted under Section 10.4, in each case, solely to the extent such
Investment or sale, Disposition, transfer or lease, as the case may be, would have been permitted on the date of the creation of such
Lien;
(k) (i) Liens
arising out of conditional sale, title retention (including any security or quasi- security arising under any retention of title, extended
retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods or, in the
case of an extended retention of title arrangement, receivables resulting from the sale of such goods supplied to the Borrower or any
of the Restricted Subsidiaries in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as
a result of any default or omission by the Borrower or any of the Restricted Subsidiaries), consignment or similar arrangements for sale
of property and bailee arrangements entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business
permitted by this Agreement and (ii) Lien arising by operation of Applicable Law under Article 2 of the Uniform Commercial Code
(or any similar provision under any other Applicable Law) in favor of a seller or buyer of goods;
(l) Liens
deemed to exist in connection with Investments in repurchase agreements permitted under Section 10.5; provided that such Liens
do not extend to any assets other than those that are the subject of such repurchase agreement;
(m) Liens
that are contractual rights of set-off (A) relating to the establishment of depository relations with banks not given in connection
with the Incurrence of Indebtedness, (B) relating to pooled deposit, automatic clearing house or sweep accounts of the Borrower or
any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the
Borrower and the Restricted Subsidiaries or (C) relating to purchase orders and other agreements entered into with customers of the
Borrower or any Restricted Subsidiary in the ordinary course of business; provided that, Liens permitted pursuant to this clause
(m) may be first priority Liens and not subject to any Lien or security interest securing the Obligations;
(n) Liens
(i) solely on any earnest money deposits of cash or Cash Equivalents made by the Borrower or any of the Restricted Subsidiaries
in connection with any letter of intent or purchase agreement permitted hereunder or to secure any letter of credit, bank guarantee
or similar instrument issued or posted in respect thereof and (ii) consisting of an agreement to Dispose of any property in a
transaction permitted under Section 10.4;
(o) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(p) Liens
on property subject to Sale Leasebacks and customary security deposits, related contract rights and payment intangibles related thereto;
(q) the
prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(r) agreements
to subordinate any interest of the Borrower or any Restricted Subsidiary in any accounts receivable or other proceeds arising from inventory
consigned by the Borrower or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business;
(s) (i) Liens
on Capital Stock in Joint Ventures securing obligations of such Joint Ventures and (ii) to the extent constituting Liens, transfer
restrictions, purchase options, rights of first refusal, tag or drag, put or call or similar rights of minority holders or Joint Ventures
partners, in each case under partnership, limited liability coverage, Joint Venture or similar Organizational Documents;
(t) Liens
with respect to property or assets of any Non-Credit Party securing Indebtedness of a Non-Credit Party permitted under Section 10.1(v);
(u) Liens
not otherwise permitted by this Section 10.2; provided that, at the time of the incurrence thereof and after giving pro forma
effect thereto and the use of proceeds thereof, the aggregate amount of Indebtedness and other obligations then outstanding and secured
thereby (when aggregated with the principal amount of Indebtedness secured by Liens Incurred in reliance on, and then outstanding under,
Section 10.2(e) above in respect of a Refinancing of Indebtedness previously secured under this Section 10.2(u)) does not
exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x) $25,000,000
and (y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or
prior to such date such Lien is created, incurred, assumed or suffered to exist (measured as such date) based upon the Section 9.1
Financials most recently delivered on or prior to such date; provided that, if such Liens are on Collateral, then the Borrower
may elect to have the holders of the Indebtedness or other obligations secured thereby (or a representative or trustee on their behalf)
enter into a Customary Intercreditor Agreement providing that the consensual Liens on the Collateral (other than cash and Cash Equivalents)
securing such Indebtedness or other obligations shall rank either equal in priority or junior to the Liens on the Collateral securing
the Obligations. Without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to
negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor Agreement or any amendment (or amendment and
restatement) to the Security Documents or a Customary Intercreditor Agreement to the extent necessary to effect the provisions contemplated
by this Section 10.2(u);
(v) Liens
encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other
brokerage accounts maintained in the ordinary course of business and, at the time of incurrence thereof, not for speculative purposes;
(w) Liens
on cash and Cash Equivalents used to defease or to satisfy or discharge Indebtedness; provided such defeasance or satisfaction
or discharge is permitted under this Agreement;
(x) 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 or consistent with past practice;
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(y)
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Liens securing commercial letters of credit permitted pursuant to Section 10.1(z);
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(z) Liens
on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(aa) Liens securing Hedging Agreements submitted for clearing in accordance with Applicable Law;
(bb) Liens securing Indebtedness permitted under Section 10.1; provided that, subject to Section 1.11,
after giving pro forma effect to the Incurrence of any such Liens and the Incurrence of such Indebtedness and to any Acquisition, Investment,
Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and Restricted Subsidiaries shall
be in compliance on a pro forma basis with (A) in the case of any Indebtedness that constitutes or is intended to constitute First
Lien Obligations, a Consolidated First Lien Debt to Consolidated EBITDA Ratio that is no greater than 5.24.95:1.00
or (B) in the case of any Indebtedness that that does not constitute or is not intended to constitute First Lien Obligations, a Consolidated
Secured Debt to Consolidated EBITDA Ratio that is no greater than 6.50:1.00, in each case as such ratio is calculated as of the last day
of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment,
and any Specified Transaction or Specified Restructuring to be consummated in connection therewith occurred on the first day of such Test
Period; provided; further; that, if such Liens are on Collateral, then the Borrower may elect to have the holders of the
Indebtedness or other obligations secured thereby (or a representative or trustee on their behalf) enter into a Customary Intercreditor
Agreement providing that the consensual Liens on the Collateral (other than cash and Cash Equivalents) securing such Indebtedness or other
obligations shall rank either equal in priority or junior to the Liens on the Collateral securing the Obligations. Without any further
consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to negotiate, execute and deliver on behalf
of the Secured Parties any Customary Intercreditor Agreement or any amendment (or amendment and restatement) to the Security Documents
or a Customary Intercreditor Agreement to the extent necessary to effect the provisions contemplated by this Section 10.2(bb);
(cc) with respect to any Foreign Subsidiary, Liens arising mandatorily by legal requirements (and not as
a result of under-capitalization of such Foreign Subsidiary);
(dd) Liens on Escrowed Proceeds for the benefit of the related holders of debt securities or other Indebtedness
permitted to be incurred hereunder (or the underwriters or arrangers thereof) or on cash set aside at the time of the Incurrence of any
Indebtedness or government securities purchased with such cash, in either case to the extent such cash or government securities prefund
the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose;
(ee) Liens on vehicles or equipment of the Borrower or any of the Restricted Subsidiaries granted in the
ordinary course of business;
(ff) Liens on accounts receivable and related assets, incurred in connection with a Qualified Receivables
Facility;
(gg) Liens securing obligations in respect of any overdraft and related liabilities arising from treasury,
depository and cash management services or any automated clearing house transfers of funds or in respect of any credit card or similar
services incurred in the ordinary course of business or consistent with past practice;
(hh) Liens
representing (i) any interest or title of a licensor, lessor or sublicensor or sublessor under any lease or license permitted
by this Agreement, (ii) any Lien or restriction that the interest or title of such lessor, licensor, sublessor or
sublicensor may be subject to, or (iii) the interest of a licensee, lessee, sublicensee or sublessee arising by virtue of being
granted a license or lease permitted by this Agreement;
(ii) Liens
granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of Intellectual Property to
secure the damages, if any, of such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(jj) utility
and similar deposits in the ordinary course of business;
(kk) Liens
securing any Hedging Obligations under any Hedging Agreement so long as the Fair Market Value of the Collateral securing such Hedging
Obligations does not exceed the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for the Test Period most recently ended on or prior to the date such Lien is created, incurred, assumed or suffered to exist
(measured as such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(ll) Liens arising in connection with rights of dissenting equityholders pursuant to Applicable Law in
respect of the Transactions; and
(mm) Liens arising solely by virtue of any statutory or common law provision or from customary contractual
provisions (such as banks’ general terms and conditions) relating to banker’s liens, rights of set-off or similar rights.
For purposes of determining
compliance with this Section 10.2, (A) Lien need not be incurred solely by reference to one category of Liens permitted by
this Section 10.2 but are permitted to be incurred in part under any combination thereof and of any other available exemption, (B) in
the event that Lien (or any portion thereof) meets the criteria of one or more of the categories of Liens permitted by this Section 10.2,
the Borrower shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with
this definition and (C) in the event that a portion of Indebtedness or other obligations secured by a Lien could be classified as
secured in part pursuant to Section 10.2(bb) above (giving pro forma effect to the Incurrence of such portion of such Indebtedness
or other obligations), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect
thereof) as having been secured pursuant to Section 10.2(bb) above and thereafter the remainder of the Indebtedness or other obligations
as having been secured pursuant to one or more of the other clauses of this Section 10.2.
10.3 Limitation
on Fundamental Changes. Except as expressly permitted by Section 10.4, 10.5 or 10.6, the Borrower will not and will not permit
any of the Restricted Subsidiaries to, consummate any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or Dispose of all or substantially all of its business units, assets or other properties,
except that:
(a) any
Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the
Borrower or the Borrower may Dispose of all or substantially all of its business units, assets and other properties; provided
that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation
where the Borrower is not the continuing or surviving Person, the Person formed by or surviving any such merger, amalgamation or
consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s
assets, the transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the
United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may
be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the
Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to
a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger,
amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger,
amalgamation, consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.11,
no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger,
amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or
Disposition, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or
unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply
to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless
it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower,
shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor
Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to
such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment
to or restatement of the Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s
obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s
certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents
preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents,
(F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent
an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not breach or result in a
default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or Disposition shall
comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise
permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied, the
Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement
(provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or
property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in
Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such
Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any
Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or
more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its business units,
assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving
one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of
such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation,
consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary,
(ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, if the surviving
Person formed by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties is a Credit Party,
then any Indebtedness of any Subsidiary Guarantor assumed by such surviving Person or the transferee of such assets and properties shall
be deemed an Incurrence of Indebtedness upon completion of such transaction and such transaction shall be permitted only if such Incurrence
is permitted under Section 10.1 of this Agreement (without giving effect to Section 10.1(k)) and (iii) if such merger,
amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger,
amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) subject to Section 1.11, no
Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation,
consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the
Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation,
consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantees and the perfection
and priority of the Liens under the Security Documents and (C) such merger, amalgamation, consolidation or Disposition shall comply
with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.4,
10.5 or 10.6;
(c) any
Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower;
(d) the
Transactions (including the Mergers) may be consummated;
(e) any
Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such liquidation
or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and
(y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.5 or Section 10.6,
or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another
Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form; and
(f) the
Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation, amalgamation or Disposition,
the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (other than 10.4(h)).
10.4 Limitation
on Sale of Assets. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, (i) convey,
sell, lease, assign, transfer, license or otherwise dispose of any of its property, business or assets (including receivables and including
pursuant to a Sale Leaseback), whether now owned or hereafter acquired (each, a “Disposition”) (other than any such
Disposition resulting from a Recovery Event), or (ii) sell to any Person (other than to the Borrower or a Restricted Subsidiary)
any shares owned by it of any of their respective Restricted Subsidiaries’ Capital Stock, except that:
(a) the
Borrower and the Restricted Subsidiaries may sell, lease, assign, transfer, license, abandon, allow the expiration or lapse of, or
otherwise Dispose of, the following: (i) obsolete, worn-out, damaged, uneconomic, no longer commercially desirable, used or
surplus assets, rights and properties and other assets, rights and properties that are held for sale or no longer used, useful or
necessary for the operation of the Borrower’s and its Subsidiaries’ business, (ii) inventory, equipment, service
agreements, product sales, securities and goods held for sale or other immaterial assets in the ordinary course of business,
(iii) cash, Cash Equivalents and Investment Grade Securities in the ordinary course of business, (iv) books of business,
client lists or related goodwill in connection with the departure of related employees or producers in the ordinary course of
business and (v) any such other assets or Capital Stock to the extent that the aggregate Fair Market Value of such assets sold
in any single transaction or series of related transactions does not exceed the greater of (x) $1,500,000 and (y) 3% of
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date
such assets are Disposed (measured as of the date such assets are Disposed) based upon the Section 9.1 Financials most recently
delivered on or prior to such date;
(b) the
Borrower and the Restricted Subsidiaries may (i) enter into non-exclusive licenses or non-exclusive sublicenses of Intellectual Property
including in connection with a research and development agreement in which the other party receives a non-exclusive license to Intellectual
Property that results from such agreement, (ii) exclusively license or exclusively sublicense Intellectual Property if done in the
ordinary course of business or consistent with past practice of the Borrower and its Restricted Subsidiaries and (iii) assign, lease,
sublease, license or sublicense any real or personal property or terminate or allow to lapse any such assignment, lease, sublease, license
or sublicense, other than any Intellectual Property, in the ordinary course of business;
(c) the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise Dispose of other assets for Fair Market Value; provided
that (i) with respect to any Disposition pursuant to this Section 10.4(c) for a purchase price in excess of the
greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test
Period most recently ended on or prior to the date such assets are Disposed (measured as of the date such assets are Disposed) based
upon the Section 9.1 Financials most recently delivered on or prior to such date, not less than 75% of the aggregate
consideration therefor from such Disposition and all other Dispositions made pursuant to this clause (c) since the Closing
Date, on a cumulative basis, received by the Borrower and its Restricted Subsidiaries, as the case may be, is in the form of cash or
Cash Equivalents; provided that, for purposes of determining what constitutes cash under this clause (i), (A) any
liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or
in the footnotes thereto or if accrued or incurred subsequent to the date of such balance sheets, such liabilities would have been
shown on the Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto as if such accrual or
incurrence had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the
Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the
Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the
Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash or Cash
Equivalents, (B) any securities, notes or other obligations received by the Borrower or such Restricted Subsidiary from such
transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash
or Cash Equivalents received) within 180 days following the closing of the applicable Disposition shall be deemed to be cash or Cash
Equivalents and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of
the applicable Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration
received pursuant to this clause (C) that is outstanding at the time such Designated Non-Cash Consideration is received, not in
excess of the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for the Test Period most recently ended on or prior to the date such assets are Disposed (measured as of the date such
assets are Disposed) based upon the Section 9.1 Financials most recently delivered on or prior to such date, with the Fair
Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to
subsequent changes in value, shall be deemed to be cash or Cash Equivalents, (ii) any non-cash proceeds received in the form of
Indebtedness or Capital Stock are pledged to the Collateral Agent to the extent required under Section 9.11, and (iii) to
the extent applicable, the Net Cash Proceeds thereof are promptly offered to prepay the Term Loans to the extent required by
Section 5.2(a)(i);
(d) the
Borrower and the Restricted Subsidiaries may (i) Dispose of, discount, forgive or write off accounts receivable, notes receivable
or other current assets in the ordinary course of business or convert accounts receivable to notes receivable or make other Dispositions
of accounts receivable in connection with the compromise or collection thereof and (ii) sell or transfer accounts receivable so long
as the Net Cash Proceeds of any sale or transfer pursuant to this clause (ii) are offered to prepay the Term Loans pursuant to Section 5.2(a)(i);
(e) the
Borrower and the Restricted Subsidiaries may Dispose of properties, rights or assets (including the Disposition or issuance of Capital
Stock) to the Borrower or to a Restricted Subsidiary; provided that, if the transferor of such property, right or asset is the
Borrower or a Subsidiary Guarantor and the transferee thereof is a Restricted Subsidiary that is not a Subsidiary Guarantor, then the
Indebtedness of such transferor assumed by such transferee shall be deemed an Incurrence of Indebtedness upon completion of such transaction
and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 (without giving effect to Section 10.1(j));
(f) the
Borrower and the Restricted Subsidiaries may Dispose of property (including like- kind exchanges) to the extent that (i) such property
is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly
applied to the purchase price of such replacement property;
(g) the
Borrower and the Restricted Subsidiaries may sell, transfer and otherwise Dispose of Investments in Joint Ventures to the extent required
by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in Joint Venture arrangements and
similar binding arrangements;
(h) the
Borrower and the Restricted Subsidiaries may effect any transaction permitted by Section 10.3, 10.5 or 10.6 and may create, incur,
assume or suffer to exist Liens permitted by Section 10.2;
(i) the
Borrower and the Restricted Subsidiary may transfer property subject to Recovery Events, including foreclosures, condemnation, expropriation,
forced disposition, eminent domain or any similar action with respect to assets;
(j) the
Borrower and the Restricted Subsidiaries may make Dispositions listed on Schedule 10.4 and
Dispositions (i) of non-core or obsolete assets acquired in connection with Acquisitions or other similar Investments that are not
used or useful in, or are surplus to, the business of the Borrower and the Restricted Subsidiaries and (ii) of other assets acquired
in connection with Acquisitions or other similar Investments permitted under this Agreement for Fair Market Value; provided that
any such Dispositions referred to in this clause (ii) shall be made or contractually committed to be made within 365 days of the
date such assets were acquired by the Borrower or such Restricted Subsidiary;
(k) the
Borrower and the Restricted Subsidiaries may unwind or terminate any Hedging Agreement or Cash Management Agreement and allow for the
expiration of any options agreement with respect to any Real Property or personal property;
(l) the
Borrower and the Restricted Subsidiaries may make Dispositions of residential Real Property and related assets in connection with relocation
activities for officers, managers, consultants, directors, employees or independent contractors (or their Immediate Family Members) of
Holdings (or any Parent Entity thereof or any Equityholding Vehicle), the Borrower and the Restricted Subsidiaries;
(m) the
Borrower and the Restricted Subsidiaries may issue directors’ qualifying shares and shares issued to foreign nationals, in each
case as required by Applicable Laws;
(n) the
Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower and
its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(o) the
Borrower and the Restricted Subsidiaries may allow the lapse of, abandon, cancel or cease to maintain or cease to enforce Intellectual
Property rights that are no longer (i) used, useful or necessary for the on-going business of the Borrower and its Restricted Subsidiaries,
(ii) economically practicable or commercially reasonable to maintain or (iii) in the best interest of or material for the operation
of the Borrower’s and the Restricted Subsidiaries’ businesses (including by allowing any registrations or any applications
for registration thereof to lapse), in each case in the ordinary course of business or consistent with past practice in the reasonable
business judgment of the Borrower;
(p) the
Borrower and the Restricted Subsidiaries may surrender, terminate or waive any contract rights or surrender, waive, settle, modify, compromise
or release any contract rights, litigation claims or any other claims of any kind (including in tort) in the ordinary course of business;
(q) the
Borrower and the Restricted Subsidiaries may make Dispositions or issuances of the Capital Stock in, Indebtedness of, or other securities
issued by, an Unrestricted Subsidiary;
(r) the
Borrower and the Restricted Subsidiaries may effect a Sale Leaseback (i) with respect to property that is acquired after the Closing
Date so long as such Sale Leaseback is consummated within 270 days of the acquisition of such property or (ii) if at the time the
lease in connection therewith is entered into, and after giving effect to the entering into of such lease, such lease is otherwise permitted
under this Agreement;
(s) the
Borrower may issue Qualified Capital Stock and, to the extent permitted by Section 10.1, Disqualified Capital Stock;
(t) the
Borrower and the Restricted Subsidiaries may make Dispositions (including those of the type otherwise described herein) after the Closing
Date in an aggregate amount not to exceed the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for the Test Period most recently ended on or prior the date such assets are Disposed (measured as of such
date) based upon the Section 9.1 Financials most recently delivered on or prior to such date;
(u) to
the extent allowable under Section 1031 of the Code or any comparable or successor provision, any exchange of like property (excluding
any boot thereon) for use in a Similar Business;
(v) sales
or transfers of accounts receivable, or participations therein and related assets, in connection with any Qualified Receivables Facility;
(w) sales
or dispositions of Capital Stock of any Foreign Subsidiary in order to qualify members of the governing body of such Subsidiary if required
by Applicable Law;
(x) samples,
including time-limited evaluation software, provided to customers or prospective customers;
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(y)
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de minimis amounts of equipment provided to employees;
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(z) the
Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with the Borrower or any
Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Capital Stock,
(iii) transfer any intercompany Indebtedness to the Borrower or any Restricted Subsidiary (subject to applicable subordination terms
if Indebtedness of a Credit Party is transferred to a non-Credit Party), (iv) settle, discount, write off, forgive or cancel any
intercompany Indebtedness or other obligation owing by Holdings, the Borrower or any Restricted Subsidiary, (v) settle, discount,
write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of any Parent
Entity, Holdings, the Borrower or any Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights
and settle or waive contractual or litigation claims; and
(aa) the Borrower and the Restricted Subsidiaries may make Dispositions of any asset between or among the Borrower and/or its Restricted
Subsidiaries as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to clauses
(a) through (s) above.
10.5 Limitation
on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, make any Investment, except (each
of the following exceptions, the “Permitted Investments”):
(a) extensions
of trade credit, asset purchases (including purchases of inventory, Intellectual Property, supplies, materials or equipment or other
similar items), the lease or sublease of any asset and the licensing or sublicensing or contribution of Intellectual Property pursuant
to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
(b) Investments
in assets constituting, or at the time of making such Investments were, cash or Cash Equivalents;
(c) loans
and advances to officers, managers, directors, employees, consultants and independent contractors of Holdings (or any Parent Entity
thereof), the Borrower or any of its Restricted Subsidiaries (i) to finance the purchase of Capital Stock of Holdings (or any
Parent Entity thereof or any Equityholding Vehicle); provided that the amount of such loans and advances used to acquire such
Capital Stock shall be contributed to the Borrower in cash as common equity, (ii) for reasonable and customary business related
travel expenses, entertainment expenses, moving expenses and similar expenses or payroll expenses, in each case incurred in the
ordinary course of business, and (iii) for additional purposes not contemplated by subclause (i) or (ii) above; provided
that, after giving pro forma effect to the making of any such loan or advance, the aggregate principal amount of all loans and
advances outstanding under this Section 10.5(c)(iii) shall not exceed the greater of (x) $7,500,000 and (y) 15%
of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the
date such Investment is made (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or
prior to such date;
(d) Investments
(i) existing on the Closing Date or (ii) contemplated on the Closing Date or made pursuant to binding agreements in effect
on the Closing Date and, in each case, listed on Schedule 10.5 and (iii) in the case of each of clauses (i) and (ii), any
modification, replacement, renewal, extension or reinvestment thereof, so long as the aggregate amount of all Investments pursuant
to this Section 10.5(d) is not increased at any time above the amount of such Investments or binding agreements existing
or contemplated on the Closing Date, except pursuant to the terms of such Investment or binding agreements existing or contemplated
as of the Closing Date (including as a result of the accrual or accretion of original issue discount or the issuance of
payment-in-kind obligations) or as otherwise permitted by this Section 10.5 or Section 10.6;
(e) Investments
in Hedging Agreements permitted by Section 10.1(i) and Cash Management Agreements permitted by Section 10.1;
(f) Investments
received (i) in connection with, or as a result of, any bankruptcy, workout, reorganization or recapitalization of suppliers, trade
creditors or customers or in settlement or compromise of delinquent obligations and disputes with, or judgments against, or other disputes
with, customers, trade creditors or suppliers, including pursuant to any plan of reorganization or similar arrangement upon bankruptcy
or insolvency of any customer, trade creditor or supplier, (ii) in satisfaction of judgments against other Persons, (iii) as
a result of the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment or
(iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Person who are not
Affiliates;
(g) Investments
to the extent that the payment for such Investments is made solely with the Capital Stock (other than Disqualified Capital Stock) of Holdings
(or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower;
(h) Investments
constituting non-cash proceeds of sales, transfers and other Dispositions of assets to the extent permitted by Sections 10.3 and 10.4
(other than clause (h));
(i) (i) Investments
by or among the Borrower or any Restricted Subsidiary in the Borrower or any other Restricted Subsidiary (including guarantees of
obligations of any Restricted Subsidiary and any prepayments, repurchases, redemptions, defeasances, acquisitions and other similar
payments of any Indebtedness of any such Person not prohibited by Section 10.7) and (ii) Investments by the Borrower or
any Restricted Subsidiary in any Unrestricted Subsidiary or Joint Venture as valued at the Fair Market Value of such Investment at
the time each such Investment is made; provided that the aggregate amount of such Investment (as so valued) shall not exceed
the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the
Test Period most recently ended on or prior to the date such Investment is made (measured as of such date) based upon the Section
9.1 Financials most recently delivered on or prior to such date;
(j) Investments
consisting of advances, loans, rebates and extensions of credit in the nature of accounts receivable, notes receivable security deposits
and prepayments (including prepayments of expenses) arising and trade credit granted in the ordinary course of business or consistent
with past practice, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors
and other deposits, prepayments and other credits to suppliers in the ordinary course of business or consistent with past practice;
(k) the
Borrower may make a loan to Holdings (or any Parent Entity thereof or any Equityholding Vehicle) that could otherwise be made as a
Restricted Payment (other than a Restricted Investment) to Holdings (or any Parent Entity thereof or any Equityholding Vehicle)
under Section 10.6, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment
under the applicable clause of Section 10.6;
(l) Investments
in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary
trade arrangements with customers;
(m) advances
of payroll payments to employees, consultants or independent contractors or other advances of salaries or compensation to officers, managers,
employees, consultants or independent contractors, in each case in the ordinary course of business;
(n) Guarantees
by the Borrower or any Restricted Subsidiary of leases or subleases (other than Financing Lease Obligations), Contractual Obligations
or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(o) Investments
made to acquire, purchase, repurchase, redeem, acquire or retire Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding
Vehicle) or the Borrower owned by any employee stock ownership plan or key employee stock ownership plan of Holdings (or any Parent Entity
thereof or any Equityholding Vehicle) or the Borrower;
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(p)
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Investments constituting Permitted Acquisitions;
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(q) any
additional Investments (including Investments in Minority Investments, Investments in Unrestricted Subsidiaries and Investments in
Joint Ventures or similar entities that do not constitute Restricted Subsidiaries), as valued at the Fair Market Value of such Investment
at the time each such Investment is made; provided that the aggregate amount of such Investment (as so valued) shall not cause
the aggregate amount of all such Investments made pursuant to this Section 10.5(q) measured at the time such Investment is made,
to exceed, after giving pro forma effect to such Investment, the sum of (i) the greater of (x) $25,000,000 and (y) 50%
of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior the date such
Investment is made (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date,
(ii) the Available Equity Amount at such time and (iii) the Available Amount at such time; provided, however,
that if any Investment pursuant to this Section 10.5(q) is made in any Person that is not a Restricted Subsidiary at the date
of the making of such Investment and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated
into, the Borrower or a Restricted Subsidiary, in each case, after such date, such Investment shall thereafter be deemed to have been
made pursuant to Section 10.5(i)(i) above and shall cease to have been made pursuant to this Section 10.5(q) for so
long as such Person continues to be a Restricted Subsidiary;
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(r)
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Investments arising as a result of Sale Leasebacks;
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(s) Investments
held by any Person acquired by the Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged, consolidated or
amalgamated with or into the Borrower or merged, consolidated or amalgamated with or into a Restricted Subsidiary in accordance with Section 10.3
after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger,
consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(t) Investments
consisting of Indebtedness, fundamental changes, Dispositions, Restricted Payments (other than Restricted Investments) and debt payments
permitted under Sections 10.1, 10.3 (but only any lettered paragraphs thereof), 10.4 (other than 10.4(e) or 10.4(hi)
(as such Section 10.4(hi) relates to Section 10.5)),
10.6 (other than 10.6(c)(i)) and 10.7;
(u) the
forgiveness, capitalization or conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary
and permitted by Section 10.1;
(v) Restricted
Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the requirements
of Sections 9.10, 9.11 and 9.14, 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 permitted by this Section 10.5, and such new Restricted
Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the
closing of such transactions, such new Restricted Subsidiary shall not be required to take the actions set forth in Sections 9.10, 9.11
and 9.14 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);
(w) Investments
consisting of earnest money deposits required in connection with purchase agreements or other Acquisitions;
(x) Investments
consisting of loans and advances to Holdings (or any Parent Entity or any Equityholding Vehicle) and its Subsidiaries in connection with
the reimbursement of expenses incurred on behalf of the Borrower and its Restricted Subsidiaries in the ordinary course of business;
(y) Investment
Grade Securities maturing no more than 24 months from the date of acquisition;
(z) 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 Borrower or any of its Restricted Subsidiaries;
(aa) non-cash
or non-Cash Equivalent Investments in connection with tax planning and reorganization activities; provided that, after giving
pro forma effect to any such activities, the Liens on the Collateral securing the Obligations would not be materially impaired;
(bb) loans and advances to customers in the ordinary course of business in respect of the payment of insurance premiums;
(cc) any Investment made in connection with the Transactions, including the Mergers, the transactions set forth in the Acquisition Agreement
and any transactions in connection with the Existing Debt Refinancing;
(dd) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business;
(ee) 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 and sublicensees;
(ff) Capital
Expenditures permitted or not restricted under this Agreement;
(gg) deposits in the ordinary course of business to secure the performance of Non-Financing Lease Obligations or utility contracts,
or in connection with obligations in respect of tenders, statutory obligations, surety, stay and appeal bonds, bids, licenses, leases,
government contracts, trade contracts, performance and return-of-money bonds, completion guarantees and other similar obligations (exclusive
of obligations for the payment of borrowed money) incurred in the ordinary course of business;
(hh) Investments made in the ordinary course of business in connection with (i) obtaining, maintaining or renewing client and customer
contracts and (ii) loans or advances made to, and guarantees with respect to obligations of, independent operators, distributors,
suppliers, licensors, sublicensors, licensees and sublicensees.
(ii)
additional Investments so long as, subject to Section 1.11, (x) no Event of Default shall have occurred and be continuing
or would result therefrom and (y) after giving pro forma effect to such Investment, the Borrower and the Restricted Subsidiaries
would be in compliance, on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated
as of the last day of the Test Period most recently ended on or prior to the date of the making of such Investment, as if such Investment
and any other transactions being consummated in connection therewith occurred on the first day of such Test Period, of no greater than
4.74.25:1.00;
(jj) Investments in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant
to this Section 10.5(jj) that are at that time outstanding, not to exceed the greater of $15,000,000 and 30% of Consolidated EBITDA
of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date of such Investment (measured
as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date; provided, however,
that if any Investment pursuant to this Section 10.5(jj) is made in any Person that is not a Restricted Subsidiary at the date of
the making of such Investment and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated
into, the Borrower or a Restricted Subsidiary, in each case, after such date, such investment shall thereafter be deemed to have been
made pursuant to Section 10.5(i) above and shall cease to have been made pursuant to this Section 10.5(jj) for so long
as such Person continues to be a Restricted Subsidiary;
(kk) to the extent not required to be applied to prepay the Term Loans in accordance with Section 5.2(a)(i), Investments
made in accordance with clause (v) of the definition of “Net Cash Proceeds” with the proceeds received in connection
with a Recovery Prepayment Event;
(ll) Investments resulting from pledges and deposits permitted by Sections 10.2(a)(i), 10.2(b) (with
respect to clause (d) of the definition of “Permitted Encumbrances”) and 10.1(n);
(mm) any Investment in any Subsidiary or any Joint Venture in connection with intercompany cash management
arrangements or related activities arising in the ordinary course of business or consistent with past practice;
(nn) Investments in deposit accounts and securities accounts in the ordinary course of business;
(oo) Investments solely to the extent such Investments reflect an increase in the value of Investments
otherwise permitted under this Section 10.5;
(pp) the acquisition of additional Capital Stock of Restricted Subsidiaries from minority equityholders
(it being understood that to the extent that any Restricted Subsidiary that is not a Credit Party is acquiring Capital Stock from minority
equityholders, then this clause (pp) shall not in and of itself create, or increase the capacity under, any basket for Investments by
Credit Parties in any Restricted Subsidiary that is not a Credit Party);
(qq) Investments in Capital Stock in any Subsidiary resulting from any sale, transfer or other Disposition
by the Borrower or any Subsidiary permitted by Section 10.4, including as a result of any contribution from any Parent Entity or
distribution to any Subsidiary of such Capital Stock;
(rr) Term Loans repurchased by the Borrower or a Restricted Subsidiary pursuant to and subject to immediate
cancellation in accordance with this Agreement;
(ss) Guarantee obligations of the 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 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;
(tt) Investments in any Receivables Subsidiary that, in the good faith determination of the Borrower are
necessary or advisable to effect any Qualified Receivables Facility or any repurchase obligation in connection therewith;
(uu) additional Investments in an aggregate amount not to exceed the portion, if any, of the Restricted
Payment Amount, on the relevant date of determination that the Borrower elects to apply pursuant to this clause (uu); and
(vv) Acquisitions by the Borrower of obligations of one or more directors, officers, employees, member
or management or consultants of Holdings, the Borrower or its Subsidiaries in connection with such Person’s acquisition of Capital
Stock of any Parent Entity or Equityholding Vehicle, so long as no cash is actually advanced by the Borrower or any of its Subsidiaries
to such Person in connection with the acquisition of any such obligations.
10.6 Limitation
on Restricted Payments. The Borrower will not pay any dividends (other than dividends payable solely in the Qualified Capital Stock
of the Borrower) or return any capital to its equity holders or make any other distribution, payment or delivery of property or cash to
its equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of
any class of its Capital Stock or the Capital Stock of any Parent Entity or any Equityholding Vehicle now or hereafter outstanding (or
any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds
for any of the foregoing purposes (but excluding, in each case, the payment of compensation in the ordinary course of business to equity
holders of any such Capital Stock who are employees of the Borrower or any Restricted Subsidiary), or permit the Borrower or any of the
Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5)
any shares of any class of the Capital Stock of any Parent Entity of the Borrower or any Equityholding Vehicle or the Capital Stock of
the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to
any of the Capital Stock of any Parent Entity of the Borrower or any Equityholding Vehicle or the Capital Stock of the Borrower) or make
any Restricted Investment (all of the foregoing, “Restricted Payments”); provided that:
(a) (i) the
Borrower may (or may pay Restricted Payments to permit any Parent Entity thereof or any Equityholding Vehicle to) redeem, repurchase,
retire or otherwise acquire in whole or in part any Capital Stock (“Treasury Capital Stock”) of the Borrower or any
Restricted Subsidiary or any Capital Stock of any Parent Entity or Equityholding Vehicle, in exchange for another class of Capital Stock
or rights to acquire its Capital Stock or with proceeds from equity contributions or sales or issuances (other than to the Borrower or
a Restricted Subsidiary) of new shares of such Capital Stock to the extent contributed to the Borrower (in each case other than Disqualified
Capital Stock, “Refunding Capital Stock”) substantially concurrently with such contribution or sale or issuance; provided
that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such Refunding Capital Stock
are at least as advantageous to the Lenders as those contained in the Capital Stock redeemed thereby and (ii) the Borrower, and any
Restricted Subsidiary may pay Restricted Payments payable solely in the Capital Stock (other than Disqualified Capital Stock not otherwise
permitted by Section 10.1) of such Person;
(b) so
long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may redeem, acquire, retire or
repurchase (and the Borrower may declare and pay Restricted Payments to any Parent Entity thereof or any Equityholding Vehicle, the
proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or
equity appreciation or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s
Parent Entities or any Equityholding Vehicle to so redeem, retire, acquire or repurchase their Capital Stock (or any options or
warrants or equity appreciation or similar rights issued with respect to any of its Capital Stock)) held by future, current or
former officers, managers, consultants, directors, employees and independent contractors (or their respective Controlled Investment
Affiliates or Immediate Family Members) of any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the
Subsidiaries of the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in
accordance with any equity option or equity appreciation or similar rights plan, any management, director and/or employee equity
ownership or incentive plan, equity subscription plan or subscription agreement, employment termination agreement or any other
employment agreements or equity holders’ agreement (including, for the avoidance of doubt, any principal or interest payable
on any Indebtedness Incurred by the Borrower or any Parent Entity or Equityholding Vehicle in connection with any such redemption,
acquisition, retirement or repurchase); provided that, except with respect to non- discretionary repurchases, acquisitions,
retirements or redemptions pursuant to the terms of any equity option or equity appreciation rights plan, any management, director
and/or employee equity ownership or incentive plan, equity subscription plan or subscription agreement, employment termination
agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of
all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of
such Capital Stock) so redeemed, acquired, retired or repurchased, does not exceed the sum of (i) $10,000,000 in any calendar
year (which shall increase to $20,000,000 in any calendar year following the consummation of a Qualifying IPO); notwithstanding the
foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving pro forma effect to
any carry forward) may be carried forward to succeeding calendar years and utilized to make payments pursuant to this
Section 10.6(b) plus (ii) all proceeds obtained by any Parent Entity or any Equityholding Vehicle (and
contributed to the Borrower) or the Borrower after the Closing Date from the sale of such Capital Stock to other future, current or
former officers, managers, consultants, employees, directors and independent contractors (or their respective Controlled Investment
Affiliates or Immediate Family Members) in connection with any plan or agreement referred to above in this clause
(b) plus (iii) all Net Cash Proceeds obtained from any key-man life insurance policies received by the Borrower (or
any Parent Entity or Equityholding Vehicle to the extent contributed to the Borrower) after the Closing Date less
(iv) the amount of any previous Restricted Payment made pursuant to clauses (ii) and (iii) of this
Section 10.6(b); and provided, further, that, the cancellation of Indebtedness owing to the Borrower or any
Restricted Subsidiary from any future, current or former employees, officers, managers, directors, consultants or independent
contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent Entity of the Borrower,
any Equityholding Vehicle, Holdings or any of the Restricted Subsidiaries in connection with a redemption, acquisition, retirement
or repurchase of its Capital Stock will not be deemed to constitute a Restricted Payment for purposes of this Agreement; provided
that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to
this Section 10.6(b) shall reduce the amounts available pursuant to this Section 10.6(b);
(c) (i) to
the extent constituting Restricted Payments, (other than Restricted Investments), the Borrower and any Restricted Subsidiary may make
Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Restricted Payments to the Borrower and to
Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any
Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests);
(d) to
the extent constituting Restricted Payments, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly
permitted by any provision of Section 10.3 and 10.4 (other than 10.4(h)), and the Borrower may pay Restricted Payments to any Parent
Entity thereof or any Equityholding Vehicle as and when necessary to enable such Parent Entity or Equityholding Vehicle to effect the
transactions permitted by such section;
(e) the
Borrower may redeem, acquire, retire or repurchase Capital Stock of any Parent Entity or any Equityholding Vehicle of the Borrower or
the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of
the exercise price of such options or warrants, and the Borrower may pay Restricted Payments to a Parent Entity or Equityholding Vehicle
thereof as and when necessary to enable such Parent Entity or Equityholding Vehicle to effect such repurchases;
(f) in
addition to the foregoing Restricted Payments (i) the Borrower may make additional Restricted Payments, so long as (x) no Event
of Default shall have occurred and be continuing or would result therefrom and (y) after giving pro forma effect to such Restricted
Payment, the Borrower would be in compliance, on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, calculated
as of the last day of the Test Period most recently ended on or prior to the date of payment of such Restricted Payment, as if such Restricted
Payment and any other transactions being consummated in connection therewith occurred on the first day of such Test Period, of no greater
than 4.25:1.00, (ii) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed an amount equal to
the Available Amount at the time such Restricted Payment is paid, so long as (x) no
Event of Default shall have occurred and be continuing or would result therefrom and (y) after giving
pro forma effect to such Restricted Payment, the Borrower would be in compliance, on a pro forma basis, with a Consolidated Total
Debt to Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most recently ended
on or prior to the date of payment of such Restricted Payment, as if such Restricted Payment and any
other transactions being consummated in connection therewith occurred on the first day of such Test Period,
of no greater than 5.25:1.00, (iii) the Borrower may make additional Restricted Payments in an aggregate amount not to
exceed an amount equal to the Available Equity Amount at the time such Restricted Payment is paid and (iv) so long as no Event of
Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate
amount not to exceed the portion, if any, of the Restricted Payment Amount, on the relevant date of determination, that the Borrower elects
to apply pursuant to this clause (iv); provided that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount
utilizing the unused amounts available pursuant to this Section 10.6(f) shall reduce the amounts available pursuant to this
Section 10.6(f);
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(g)
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the Borrower may make and pay Restricted Payments:
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(i) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower to pay) any tax liability
in respect of income attributable to Holdings, the Borrower and its Subsidiaries, but not in excess of the tax liability that Holdings
and/or the Borrower would incur if it filed tax returns as the parent of a consolidated, combined, unitary or aggregate group for itself
and its Subsidiaries (and net of any payment already made and to be made by the Borrower to a taxing authority to satisfy such tax liability);
provided that a Restricted Payment attributable to any taxes attributable to an Unrestricted Subsidiary shall be permitted only
to the extent such Unrestricted Subsidiary distributed cash to the Borrower or its Restricted Subsidiaries;
(ii) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any Equityholding
Vehicle to pay) its operating expenses incurred in the ordinary course (including related to maintenance of organizational existence),
general administrative costs and other overhead costs and expenses (including administrative, legal, accounting, professional and similar
fees and expenses provided by third parties, including the Borrower’s proportionate share of such amount relating to such Parent
Entity being a Public Company), plus any indemnification claims made by employees, managers, consultants, independent contractors,
directors or officers of any Parent Entity of the Borrower or any Equityholding Vehicle;
(iii) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any
Equityholding Vehicle to pay) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, required to
maintain its (or any of its Parent Entities’ or Equityholding Vehicles’) corporate or other legal existence;
(iv) the
proceeds of which shall be used to make Investments contemplated by Section 10.5(c);
(v) the
proceeds of which shall be used to pay (or to make Restricted Payments to allow any Parent Entity of the Borrower or any Equityholding
Vehicle to pay) fees and expenses (other than to Affiliates of the Borrower) related to any successful or unsuccessful equity issuance
or offering or Incurrence of Indebtedness, Refinancing, Disposition or acquisition or Investment transaction permitted by this Agreement;
(vi) to
the extent not constituting a Restricted Investment, the proceeds of which shall be used to finance Investments that would otherwise be
permitted to be made pursuant to Section 10.5 or as a Restricted Investment pursuant to Section 10.6 if made by the Borrower
or a Restricted Subsidiary; provided that (i) such Restricted Payment shall be made substantially concurrently with the closing
of such Investment, (ii) such Parent Entity shall, immediately following the closing thereof, cause (A) all property acquired
(whether assets or Capital Stock) to be contributed to the capital of the Borrower or one of the Restricted Subsidiaries or (B) the
merger, consolidation or amalgamation of the Person formed or acquired with or into the Borrower or one of the Restricted Subsidiaries
(to the extent not prohibited by Section 10.3) in order to consummate such Investment and (iii) such Parent Entity and its Affiliates
(other than the Borrower or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except
to the extent the Borrower or a Restricted Subsidiary could have otherwise given such consideration or made such payment in compliance
with this Agreement; and
(vii) the
proceeds of which shall be used to pay customary salary, bonus, severance and other benefits payable to directors, officers, managers,
employees, consultants or independent contractors of any Parent Entity of the Borrower or any Equityholding Vehicle to the extent such
salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, including
the Borrower’s proportionate share of such amount relating to such Parent Entity being a Public Company;
(h) the
Borrower may (or may make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to) (i) pay cash in lieu of
fractional shares in connection with any Restricted Payment (including in connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Capital Stock), share split, reverse share split or combination thereof or any Acquisition or other
similar Investment and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of
fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the
Borrower may pay (or may make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to pay) Restricted Payments
in an amount equal to withholding or similar taxes payable or expected to be payable by any future, current or former employee, director,
manager, consultant or independent contractor (or any of their respective Immediate Family Members) of any Parent Entity of the Borrower,
any Equityholding Vehicle, the Borrower or any Subsidiary of the Borrower in connection with the exercise or vesting of Capital Stock
or other equity awards or any repurchases, redemptions, acquisitions, retirements or withholdings of Capital Stock in connection with
any exercise of Capital Stock or other equity options or warrants or the vesting of Capital Stock or other equity awards if such Capital
Stock represent all or a portion of the exercise price of, or withholding obligation with respect to, such options or, warrants or other
Capital Stock or equity awards;
(j) the
Borrower may make payments (or make Restricted Payments to allow any Parent Entity or any Equityholding Vehicle to make such payments)
described in Sections 10.11(c), (e), (h), (i), (j), (l) and (s) (subject to the conditions set out therein);
(k) the
Borrower may make Restricted Payments and distributions within sixty (60) days after the date of declaration thereof, if at the date of
declaration of such payment, such payment would have complied with the other provisions of this Section 10.6;
(l) so
long as no Event of Default is continuing or would result therefrom, after a Qualifying IPO, the Borrower may make Restricted Payments
to any Parent Entity of the Borrower or any Equityholding Vehicle so that such Parent Entity or Equityholding Vehicle can make Restricted
Payments to its equity holders in an aggregate per annum amount not exceeding 6.0% of the Net Cash Proceeds of such Qualifying IPO; provided
that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to this
Section 10.6(l) shall reduce the amounts available pursuant to this Section 10.6(l);
(m) the
Borrower and any Restricted Subsidiary may pay and make any Restricted Payment in connection with (i) the Transactions or Restricted
Payments necessary to consummate the Transactions, including (A) in respect of any payments required to be made after the Closing
Date in connection with, or necessary to consummate, the Transactions (including, for the avoidance of doubt, and to the extent constituting
a Restricted Payment, payments in respect of the 2017 Contingent Value Rights, the Deferred Blocker Consideration and the Deferred Company
Consideration), (B) the payment of the Transaction Expenses related thereto or used to fund amounts owed to Affiliates (including
those made to any Parent Entity of the Borrower or Equityholding Vehicle to permit payment by such Parent Entity or Equityholding Vehicle),
(C) in respect of working capital adjustments or purchase price adjustments or to satisfy indemnity and other similar obligations,
in each case as set forth in the Acquisition Agreement, (D) to holders of restricted stock, restricted stock units or similar equity
awards and (E) to dissenting equityholders in connection with, or as a result of, their exercise of appraisal rights and the settlement
of any claims or actions (whether actual, contingent or potential) with respect thereto (including any accrued interest) in connection
with the Transactions or any other Acquisition or other similar Investment, (ii) working capital adjustments or purchase price adjustments
in connection with any Acquisition or other similar Investment and (iii) the satisfaction of indemnity and other similar obligations
in connection with any Acquisition or other similar Investment; provided that any Indebtedness Incurred in reliance upon the Available
RP Capacity Amount utilizing the unused amounts available pursuant to this Section 10.6(m) shall reduce the amounts available
pursuant to this Section 10.6(m);
(n) the
Borrower may make payments made to optionholders or holders of profits interests of the Borrower or any Parent Entity or any Equityholding
Vehicle in connection with, or as a result of, any distribution being made to shareholders of the Borrower or any Parent Entity or any
Equityholding Vehicle (to the extent such distribution is otherwise permitted hereunder), which payments are being made to compensate
such optionholders or holders of profits interests as though they were shareholders at the time of, and entitled to share in, such distribution
(it being understood that no such payment may be made to an optionholder or holder of profits interests pursuant to this clause to the
extent such payment would not have been permitted to be made to such optionholder or holder of profits interests if it were a shareholder
pursuant to any other paragraph of this Section 10.6, and any payment hereunder shall reduce payments available under such other
paragraph);
(o) the
Borrower may pay Restricted Payments to pay for the redemption, acquisition, retirement or repurchase, in each case for nominal
value, of Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower from a former
investor of a business acquired in an Acquisition or other similar Investment or a current or former employee, officer, director,
manager or consultant of a business acquired in an Acquisition or other similar Investment (or their Controlled Investment
Affiliates or Immediate Family Members), which Capital Stock was issued as part of an earn-out or similar arrangement in the
acquisition of such business, and which redemption, acquisition, retirement or repurchase relates the failure of such earn-out to
fully vest;
(p) the
Borrower may make distributions, by Restricted Payment or otherwise, or other transfer or Disposition of shares of Capital Stock of Unrestricted
Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are Cash Equivalents); and
(q) the
Borrower may make payments or distributions to satisfy dissenters’ rights pursuant to or in connection with an acquisition, merger,
consolidation, amalgamation or transfer of assets that complies with Section 10.3;
(r) Holdings
may make Restricted Payments constituting interest payments on Disqualified Capital Stock, to the extent such Disqualified Capital Stock
constitutes Indebtedness, was Incurred in compliance with Section 10.1 and such Restricted Payments are included in the calculation
of Consolidated Interest Expense;
(s) the
Borrower may make Restricted Payments in an aggregate amount that does not exceed the aggregate amount of Excluded Contributions received
since the Closing Date (not otherwise building Available Equity Amount or constituting a Cure Amount or used to incur Indebtedness); provided
that any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to this
Section 10.6(s) shall reduce the amounts available pursuant to this Section 10.6(s);
(t) the
Borrower may make distributions or payments of Receivables Fees and purchases of Receivables in connection with any Qualified Receivables
Facility or any repurchase obligation in connection therewith;
(u) the
Restricted Subsidiaries may make Restricted Payments in connection with the acquisition of additional Capital Stock in any Restricted
Subsidiary from minority equityholders; and
(v) so
long as no Event of Default is continuing or would result therefrom, after a Qualifying IPO, the Borrower may make Restricted Payments
to any Parent Entity of the Borrower or any Equityholding Vehicle so that such Parent Entity or Equityholding Vehicle can make Restricted
Payments to its equity holders in an aggregate per annum amount not exceeding 7.0% of the Market Capitalization; provided that
any Indebtedness Incurred in reliance upon the Available RP Capacity Amount utilizing the unused amounts available pursuant to this Section 10.6(w) shall
reduce the amounts available pursuant to this Section 10.6(w).
The amount of all Restricted
Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the assets or securities proposed to
be transferred or issued by the Borrower or any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. For the
avoidance of doubt, this Section 10.6 shall not restrict the making of any AHYDO Catch-Up Payment with respect to, and required by
the terms of, any Indebtedness of the Borrower or any of the Restricted Subsidiaries permitted to be incurred under the terms of this
Agreement. Indebtedness Incurred under Section 10.1(q) shall reduce availability under this Section 10.6 in an amount equal
to the aggregate principal amount incurred from time to time under Section 10.1(q), whether or not outstanding, except in respect
of amounts forgiven or cancelled without payment being made.
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10.7
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Limitations on Debt Payments and Amendments.
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(a) The
Borrower will not, and will not permit any of the Restricted Subsidiaries to, prepay, repurchase, redeem or otherwise defease or
make similar payments in respect of any Junior Debt prior to its stated maturity (it being understood that payments of regularly
scheduled interest, fees, expenses, indemnification obligations and, so long as no Event of Default under Section 11.1 or 11.5
is continuing or would result therefrom, AHYDO Catch-Up Payments shall be permitted); provided, however, the Borrower
or any Restricted Subsidiary may prepay, repurchase, redeem, defease, acquire or otherwise make payments on any such Indebtedness
(i) with the proceeds of any Permitted Refinancing Indebtedness in respect of such Indebtedness, (ii) by converting or
exchanging any such Indebtedness to Capital Stock of Holdings or any of its Parent Entities and (iii) (A) so long as
(x) no Event of Default has occurred and is continuing or would result therefrom and (y) after giving pro forma effect to
such prepayment, repurchase, redemption, defeasance, acquisition or other payment, the Borrower would be in compliance, on a pro
forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, calculated as of the last day of the Test Period most
recently ended on or prior to the date of any such payment, as if such prepayment, repurchase, redemption, defeasance, acquisition
or other payment and any other transactions being consummated in connection therewith occurred on the first day of such Test Period,
of no greater than 4.25:1.00 after giving pro forma effect thereto, (B) in an aggregate amount not to exceed the Available
Amount at the time of such prepayment, repurchase, redemption, defeasance, acquisition or other payment, so long as (x) no
Event of Default has occurred and is continuing or would result therefrom and (y) after giving pro
forma effect to such prepayment, repurchase, redemption, defeasance, acquisition or other payment, the Borrower would be in
compliance,on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA
Ratio, calculated as of the last day of the Test Period most recently ended on or prior to the date of
payment of such prepayment, repurchase, redemption, defeasance, acquisition or other payment, as if such prepayment, repurchase,
redemption, defeasance, acquisition or other payment and any other transactions being consummated in connection therewith occurred
on the first day of such Test Period, of no greater than 5.25:1.00, (C) in an aggregate
amount not to exceed the Available Equity Amount at the time of such prepayment, redemption, repurchase, defeasance, acquisition or
other payment, (D) in an aggregate amount not to exceed the portion, if any, of the Restricted Payment Amount, on the relevant
date of determination that the Borrower elects to apply pursuant to this clause (D), (E) any purchase, repurchase, redemption,
defeasance or other acquisition or retirement of Junior Debt Incurred pursuant to Section 10.1(j) (other than Indebtedness
Incurred (I) to provide all or any portion of the funds utilized to consummate the transaction or series of related
transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Borrower or a Restricted
Subsidiary or (II) otherwise in connection with or contemplation of such acquisition), so long as such purchase, repurchase,
redemption, defeasance or other acquisition or similar payment is made or deposited with a trustee or other similar representative
of the holders of such Junior Debt contemporaneously with, or substantially simultaneously with, the closing of the Acquisition
under which such Junior Debt is Incurred, (F) any mandatory redemption, repurchase, retirement, termination or cancellation of
Disqualified Capital Stock (to the extent such Disqualified Capital Stock constitutes Indebtedness and was Incurred in compliance
with Section 10.1, (G) [reserved] and (H) the payment, redemption, repurchase, retirement, termination or
cancellation of Indebtedness within 60 days of the date of the Redemption Notice if, at the date of any payment, redemption,
repurchase, retirement, termination or cancellation notice in respect thereof (the “Redemption Notice”), such
payment, redemption, repurchase, retirement termination or cancellation would have complied with another provision of this
Section 10.7(a); provided that such payment, redemption, repurchase, retirement termination or cancellation shall reduce
capacity under such other provision.
Notwithstanding the foregoing
and for the avoidance of doubt, nothing in this Section 10.7 shall prohibit (i) the repayment, prepayment, repurchase, redemption
or other payment of intercompany subordinated Indebtedness owed among the Borrower and/or the Restricted Subsidiaries, in either case
unless an Event of Default has occurred and is continuing and the Borrower has received a notice from the Collateral Agent instructing
it not to make or permit the Borrower and/or the Restricted Subsidiaries to make any such repayment or prepayment or (ii) substantially
concurrent transfers of credit positions in connection with intercompany debt restructurings so long as such Indebtedness is permitted
by Section 10.1 after giving pro forma effect to such transfer.
(b) The
Borrower will not, and will not permit any of the Restricted Subsidiaries to, waive, amend or modify any term or condition in any Subordinated
Indebtedness Documentation (or, in each case, any documentation governing any Permitted Refinancing Indebtedness in respect thereof) to
the extent that any such waiver, amendment or modification, taken as a whole, would be materially adverse to the interests of the Lenders.
10.8 Negative
Pledge Clauses. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into or permit to exist
any Contractual Obligation (other than this Agreement, any other Credit Document, any Permitted Additional Debt Documents related to
any secured Permitted Additional Debt or any document governing any secured Credit Agreement Refinancing Indebtedness and any
documentation governing any Permitted Refinancing Indebtedness Incurred to Refinance any such Indebtedness) that limits the ability
of the Borrower or any Guarantor to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the
Secured Parties with respect to the Obligations or under the Credit Documents; provided that the foregoing shall not apply to
Contractual Obligations that in any material respect:
(i) (x) exist
on the Closing Date and (to the extent not otherwise permitted by this Section 10.8) are listed on Schedule 10.8 hereto and (y) to
the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness or other obligations,
are set forth in any agreement evidencing any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness or obligation
so long as such Permitted Refinancing Indebtedness does not materially expand the scope of such Contractual Obligation (as determined
in good faith by the Borrower),
(ii) are
binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Borrower, so long
as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower,
(iii) represent
Indebtedness of a Restricted Subsidiary of the Borrower that is not a Credit Party to the extent such Indebtedness is permitted by Section 10.1,
(iv) arise
pursuant to agreements entered into with respect to any sale, transfer, lease, license or other Disposition permitted by Section 10.4,
including customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been entered into for
the sale, transfer, lease, license or other Disposition of the Capital Stock of such Subsidiary, and applicable solely to assets under
such sale, transfer, lease, license or other Disposition,
(v) are
customary provisions in Joint Venture agreements, partnership agreements, limited liability company organizational governance document,
and other similar agreements applicable to partnerships, limited liability companies, Joint Ventures and similar Persons permitted by
Section 10.5 or Section 10.6 and applicable solely to such Persons or the transfer of ownership therein,
(vi) are
negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 10.1, but solely to the
extent any negative pledge relates to the property financed by or the subject of such Indebtedness,
(vii) are
customary restrictions on leases, subleases, service agreements, product sales, licenses and sublicenses (including with respect to Intellectual
Property) or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto,
(viii) comprise
restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 10.1 to the extent that such
restrictions apply only to the specific property or assets securing such Indebtedness,
(ix) are
customary provisions restricting subletting or assignment or transfers of any lease governing a leasehold interest of the Borrower or
any Restricted Subsidiary,
(x) are
customary provisions restricting assignment of any agreement (or the assets subject thereto) entered into in the ordinary course of business,
(xi) are
restrictions on cash or other deposits or net worth imposed (including by customers) under agreements entered into in the ordinary course
of business,
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(xii)
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are imposed by Applicable Law,
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(xiii) are
customary net worth provisions contained in real property leases entered into by Subsidiaries of the Borrower, so long as the
Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the
Borrower and its Subsidiaries to meet their ongoing obligation;
(xiv) comprise
restrictions imposed by any agreement governing Indebtedness entered into after the Closing Date and permitted under Section 10.1
that are, taken as a whole, in the good-faith judgment of the Borrower, no more restrictive with respect to the Borrower or any Restricted
Subsidiary than customary market terms for Indebtedness of such type (and, in any event, are no more restrictive than the restrictions
contained in this Agreement), so long as the Borrower shall have determined in good faith that such restrictions will not materially impair
its obligation or ability to make any payments required hereunder,
(xv) arise
in connection with purchase money obligations for property acquired in the ordinary course of business or Financing Lease Obligations;
(xvi) arise
in connection with any agreement or other instrument of a Person or relating to Indebtedness or Capital Stock of a Person, which Person
is acquired by or merged, consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries, or any other transaction
is entered into with any such Acquisition, merger, consolidation or amalgamation, in existence at the time of such Acquisition or at the
time it merges, consolidates or amalgamates with or into the Borrower or any of its Restricted Subsidiaries or assumed in connection with
the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or
the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired or redesignated;
(xvii) are
restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement
to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that
such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are the subject
to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of
the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xviii) are
provisions restricting the granting of a security interest in Intellectual Property contained in licenses or sublicenses by the Borrower
and its Restricted Subsidiaries of such Intellectual Property, which licenses and sublicenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such Intellectual Property);
(xix) arise
in connection with cash or other deposits imposed by agreement permitted under Section 10.2, Section 10.5 or Section 10.6
entered into in the ordinary course of business;
(xx) 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 or
restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property
of such Subsidiary;
(xxi) restrictions
created in connection with any Qualified Receivables Facility that, in the good faith determination of the Borrower, are necessary or
advisable to effect such Qualified Receivables Facility; and
(xxii) are
any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through
(xxi) of this Section 10.8; provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good-faith judgment of the Borrower, no more restrictive in any
material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
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10.9
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Passive Holding Company; Etc.
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(a) Holdings
will not conduct, transact or otherwise engage in any material business or material operations other than (i) the ownership
and/or acquisition of the Capital Stock (other than Disqualified Capital Stock) of the Borrower, (ii) the maintenance of its
legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (iii) to the extent
applicable, participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and
the Borrower, (iv) the performance of its obligations under and in connection with the Credit Documents and any documents
relating to other Indebtedness permitted under Section 10.1, (v) any public offering of its Capital Stock or any other
issuance or registration of its Capital Stock for sale or resale not prohibited by Section 10, including the costs, fees and
expenses related thereto, (vi) any transaction that Holdings is permitted to enter into or consummate under this
Section 10 and any transaction between Holdings and the Borrower or any Restricted Subsidiary permitted under this
Section 10, including (a) making any dividend or distribution or other transaction similar to a Restricted Payment (other
than a Restricted Investment) not prohibited by Section 10.6 (or the making of a loan to its Parent Entities or any
Equityholding Vehicle in lieu of any such Restricted Payment (other than a Restricted Investment) or distribution or other
transaction similar to a Restricted Payment (other than a Restricted Investment)) or holding any cash received in connection with
Restricted Payments (other than Restricted Investments) made by the Borrower in accordance with Section 10.6 pending
application thereof by Holdings in the manner contemplated by Section 10.6 (including the redemption in whole or in part of any
of its Capital Stock (other than Disqualified Capital Stock) in exchange for another class of Capital Stock (other than Disqualified
Capital Stock) or rights to acquire its Capital Stock (other than Disqualified Capital Stock) or with proceeds from substantially
concurrent equity contributions or issuances of new shares of its Capital Stock (other than Disqualified Capital Stock)),
(b) making any Investment to the extent (1) payment therefor is made solely with the Capital Stock of Holdings (other than
Disqualified Capital Stock), the proceeds of Restricted Payments (other than Restricted Investments) received from the Borrower
and/or proceeds of the issuance of, or contribution in respect of the, Capital Stock (other than Disqualified Capital Stock) of
Holdings and (2) any property (including Capital Stock) acquired in connection therewith is contributed to the Borrower or a
Subsidiary Guarantor (or, if otherwise permitted by Section 10.5 or Section 10.6, a Restricted Subsidiary) or the Person
formed or acquired in connection therewith is merged with the Borrower or a Restricted Subsidiary and (c) the
(w) provision of guarantees in the ordinary course of business in respect of obligations of the Borrower or any of its
Subsidiaries to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners; provided, for the
avoidance of doubt, that such guarantees shall not be in respect of debt for borrowed money, (x) Incurrence of Indebtedness of
Holdings contemplated by Sections 10.1(p) and 10.1(q), (y) Incurrence of guarantees and the performance of its other
obligations in respect of Indebtedness Incurred pursuant to Sections 10.1(a), 10.1(k) and 10.1(s) and Permitted
Additional Debt Incurred pursuant to Section 10.1(u) and (z) granting of Liens to the extent the Indebtedness
contemplated by subclause (y) is permitted to be secured under Sections 10.2(a), 10.2(u) and 10.2(bb),
(vii) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax
and accounting issues and paying taxes, (viii) providing indemnification to officers and directors and as otherwise permitted
in Section 10, (ix) activities incidental to the consummation of the Transactions, (x) organizational activities
incidental to Acquisitions or similar Investments consummated by the Borrower, including the formation of acquisition vehicle
entities and intercompany loans and/or investments incidental to such Acquisitions or similar Investments in each case consummated
substantially contemporaneously with the consummation of the applicable Acquisitions or similar Investments; provided that in
no event shall any such activities include the incurrence of a Lien on any of the assets of Holdings, (xi) the making of any
loan to any officers or directors contemplated by Section 10.5, the making of any Investment in the Borrower or any Subsidiary
Guarantor or, to the extent otherwise allowed under Section 10.5 or Section 10.6, a Restricted Subsidiary and
(xii) activities incidental to the businesses or activities described in clauses (i) to (xi) of this
Section 10.9.
(b) Except
in connection with the Transactions, Holdings will not consummate any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its assets and other properties,
except that Holdings may merge, amalgamate or consolidate with or into any other Person (other than the Borrower) or, in connection with
a Qualifying IPO, liquidate into the issuing entity, or otherwise Dispose of all or substantially all of its assets and property; provided
that (i) Holdings shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where Holdings
is not the continuing or surviving Person or where Holdings has been liquidated, or in connection with a Disposition of all or substantially
all of its assets, the Person formed by or surviving any such merger, amalgamation or consolidation or the Person into which Holdings
has been liquidated or to which Holdings has transferred such assets shall, in each case, be an entity organized or existing under the
laws of the United States, any state thereof, the District of Columbia or any territory thereof (Holdings or such Person, as the case
may be, being herein referred to as the “Successor Holdings”), (ii) the Successor Holdings (if other than Holdings)
shall expressly assume all the obligations of Holdings under this Agreement and the other applicable Credit Documents pursuant to a supplement
hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) each Subsidiary Guarantor, unless it is the
other party to such merger, amalgamation, consolidation, liquidation or Disposition or unless the Successor Holdings is Holdings, shall
have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Holdings’ obligations under this
Agreement, (iv) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation,
liquidation or Disposition or unless the Successor Holdings is Holdings, shall have by a supplement to the applicable Credit Documents
confirmed that its obligations thereunder shall apply to the Successor Holdings’ obligations under this Agreement, (v) each
mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation, liquidation or Disposition
or unless the Successor Holdings is Holdings, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its
obligations thereunder shall apply to the Successor Holdings’ obligations under this Agreement, (vi) Holdings shall have delivered
to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation, liquidation or Disposition
and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral
under the Security Documents, (vii) the Successor Holdings shall, immediately following such merger, amalgamation, consolidation,
liquidation or Disposition, directly or indirectly, own all Subsidiaries owned by Holdings immediately prior to such merger, amalgamation,
consolidation, liquidation or Disposition and (viii) if reasonably requested by the Administrative Agent, an opinion of counsel shall
be required to be provided to the effect that such merger, amalgamation, consolidation, liquidation, or Disposition does not breach or
result in a default under this Agreement or any other Credit Document; provided, further, that if the foregoing are satisfied,
the Successor Holdings (if other than Holdings) will succeed to, and be substituted for, Holdings under this Agreement.
10.10 Consolidated
First Lien Debt to Consolidated EBITDA Ratio. Solely with respect to the Revolving Credit Facility and subject to the following proviso,
beginning with the Test Period ending December 31, 2017, the Borrower will not permit the Consolidated First Lien Debt to Consolidated
EBITDA Ratio as of the last day of any Test Period to be greater than 8.15:1.00; provided, however, that the Borrower shall
be required to be in compliance with this Section 10.10 with respect to any Test Period only if the sum of (A) the aggregate
principal amount of all Revolving Credit Loans and Swingline Loans plus (B) the aggregate Letter of Credit Obligations (other than
(i) those Cash Collateralized in an amount equal to the Stated Amount thereof or otherwise backstopped on terms reasonably acceptable
to the Administrative Agent and the applicable Letter of Credit Issuer and (ii) without duplication of amounts described in clause
(i) above, Letter of Credit Obligations, the aggregate Stated Amount of which do not exceed the greater of (x) $5,000,000 and
(y) the Stated Amount of Existing Letters of Credit outstanding on the Closing Date), in each case outstanding on the last day of
such Test Period, exceeds 35.0% of the amount of the Total Revolving Credit Commitment in effect on such date and.
10.11 Transactions
with Affiliates. The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, enter into any transaction with
any Affiliate of the Borrower involving aggregate payments or consideration in excess of the greater of (x) $2,500,000 and (y) 5%
of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date
such transaction occurs (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to
such date except:
(a) such
transactions that are made on terms, when taken as a whole, not materially less favorable to the Borrower or such Restricted Subsidiary
as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a
Person that is not an Affiliate;
(b) if
such transaction is among Holdings, the Borrower and one or more Subsidiary Guarantors or any Restricted Subsidiary or any entity that
becomes a Restricted Subsidiary as a result of such transaction;
(c) the
payment of Transaction Expenses, including the payment of all fees, expenses, bonuses and awards and the consummation of the Transactions;
(d) the
issuance of Capital Stock of any Parent Entity, any Equityholding Vehicle or the Borrower to the management of such Parent Entity, the
Borrower or any of its Subsidiaries pursuant to arrangements described in clause (m) below;
(e) the
payment of indemnities and other similar amounts and reasonable expenses incurred by the Investors and their respective Affiliates in
connection with the management or monitoring of, or the provision of other services rendered to, any Parent Entity of the Borrower, any
Equityholding Vehicle, the Borrower or any of its Subsidiaries;
(f) equity
issuances, repurchases, retirements, redemptions or other acquisitions or retirements of Capital Stock by any Parent Entity of the Borrower,
any Equityholding Vehicle or the Borrower permitted under Section 10.6 and any actions by the Borrower and its Restricted Subsidiaries
to permit the same;
(g) loans,
guarantees and other transactions by any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
to the extent permitted under Section 10 (other than by reliance on this Section 10.11);
(h) the
entry into, performance under, and making of any payments in respect of any employment, compensation and severance arrangements and health,
disability and similar insurance or benefit plans or supplemental executive retirement benefit plans or arrangements between any Parent
Entity of the Borrower, the Borrower and the Restricted Subsidiaries and their respective directors, officers, managers, employees, consultants
or independent contractors (including management and/or employee benefit plans or agreements, stock/equity/option plans, management equity
plans, subscription agreements or similar agreements pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar
rights with current or former employees, officers, managers, directors, consultants or independent contractors (or their respective Controlled
Investment Affiliates or Immediate Family Members) and stock option or incentive plans and other compensation arrangements) in the ordinary
course of business or as otherwise approved by the Board of Directors of any Parent Entity of the Borrower or the Borrower;
(i) the
payment of customary fees, compensation and reasonable out-of-pocket costs to, and benefits, indemnities and reimbursements and
employment and severance arrangements provided on behalf of, or for the benefit of, future, current or former, directors, managers,
consultants, officers, employees and independent contractors (or their respective Controlled Investment Affiliates or Immediate
Family Members) of any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries in the
ordinary course of business to the extent attributable to the ownership or operation of the Borrower and the Restricted
Subsidiaries;
(j) transactions
pursuant to permitted agreements in existence on the Closing Date and set forth on Schedule 10.11 or any amendment thereto to the extent
such an amendment is not adverse, taken as a whole, to the interests of the Lenders in any material respect as compared to the applicable
agreement in effect on the Closing Date (in the good-faith judgment of the Borrower);
(k) Restricted
Payments permitted under Section 10.6, and Investments permitted under Section 10.5;
(l) payments
(including reimbursement of out-of-pocket fees and expenses) by the Borrower and any Restricted Subsidiaries to the Investors and any
of their respective Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other investment
banking activities (including in connection with acquisitions or Dispositions, whether or not consummated), which payments are approved
by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors of any Parent
Entity of the Borrower, Holdings or the Borrower in good faith;
(m) any
issuance or transfer of Capital Stock, or other payments, awards or grants in cash, securities, Capital Stock or otherwise pursuant to,
or the funding of, employment arrangements, equity options and equity ownership plans approved by the Board of Directors of any Parent
Entity of the Borrower, any Equityholding Vehicle or the Borrower, as the case may be and the granting and performing of customary registration
rights;
(n) the
issuance and sale of any Qualified Capital Stock and any purchase by any Parent Entity of the Borrower of the Qualified Capital Stock
of the Borrower; provided that, to the extent required by Section 9.11, any Capital Stock of the Borrower so purchased shall
be pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to the Pledge Agreement;
(o) transactions
with wholly owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of
business in a manner consistent with prudent business practice followed by companies in the industry of the Borrower and its Subsidiaries;
(p) transactions
with customers, clients, suppliers, Joint Venture partners or purchasers or sellers of goods or services, in each case in the ordinary
course of business;
(q) any
contribution by any Parent Entity or Equityholding Vehicle to the capital of the Borrower;
(r) transactions
with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business and in a
manner consistent with prudent business practice followed by companies in the industry of the Borrower and its Subsidiaries;
(s) any
transaction between or among Holdings, the Borrower or any Restricted Subsidiary and any Affiliate of Holdings, the Borrower or a Joint
Venture or similar Person that would constitute an Affiliate transaction solely because Holdings, the Borrower or a Restricted Subsidiary
owns Capital Stock in or otherwise controls such Affiliate, Joint Venture or similar Person or due to the fact that a director of such
Joint Venture or similar Person is also a director of the Borrower or any Restricted Subsidiary (or any Parent Entity);
(t) Affiliate
repurchases of the Loans or Commitments to the extent permitted under this Agreement and the holding of such Loans or Commitments and
the payments and other transactions contemplated under this Agreement in respect thereof;
(u) customary
transactions effected as part of any Qualified Receivables Facility that are otherwise permitted under this Agreement;
(v) the
entering into, and payments by, any Parent Entity of the Borrower, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
pursuant to tax sharing agreements among any such Parent Entity, any Equityholding Vehicle, the Borrower and the Restricted Subsidiaries
on customary terms; provided that payments by Borrower and the Restricted Subsidiaries under any such tax sharing agreements shall
not exceed the excess (if any) of the amount they would pay on a standalone basis over the amount they actually pay to Governmental Authorities;
(w) transactions
in which the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent a letter from an Independent
Financial Advisor stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of view or
meets the requirements of clause (a) of this Section 10.11;
(x) payments,
loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors or
consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of the Restricted
Subsidiaries or any Parent Entity or Equityholding Vehicle and employment agreements, stock option plans and other compensatory arrangements
with any such employees, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) which,
in each case, are approved by the Borrower in good faith;
(y) (i) Investments
by any of the Permitted Holders in securities of any Parent Entity, the Borrower or any Restricted Subsidiary (and payment of out-of-pocket
expenses incurred by such Permitted Holders in connection therewith) so long as the Investment is being offered generally to other investors
on the same or more favorable terms and (ii) payments to Permitted Holders in respect of securities or loans of the Borrower or any
of the Restricted Subsidiaries contemplated in the foregoing subclause (i) or that were acquired from Persons other than any Parent
Entity, the Borrower or any Restricted Subsidiary, in each case, in accordance with the terms of such securities or loans;
(z) pledges
of Capital Stock of Unrestricted Subsidiaries;
(aa) the
existence and performance of agreements and transactions with any Unrestricted Subsidiary that were entered into prior to the designation
of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction was permitted at the time that it was entered
into with such Restricted Subsidiary (and not entered into in contemplation of such designation) and transactions entered into by an
Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary (and
not entered into in contemplation of such designation); and
(bb) the
existence of, and performance under, customary obligations under the terms of any equityholders agreement, principal investors agreement
(including any registration rights or purchase agreement related thereto) to which any Parent Entity, Equityholding Vehicle, the Borrower
or any Restricted Subsidiary is a party as of the Closing Date (as such agreement may be amended or otherwise modified from time to time)
and any similar agreements relating to the Capital Stock of any of the foregoing which the relevant parties may enter into after the
Closing Date (except to the extent the performance of such obligations is otherwise prohibited under the terms of this Agreement).
SECTION 11. Events
of Default. Upon the occurrence of any of the following specified events (each an “Event of Default”):
11.1 Payments.
The Borrower shall (a) default in the payment when due of any principal of the Loans or (b) default, and such default
shall continue for five or more Business Days, in the payment when due of any interest on the Loans or any fees or of any other
amounts owing hereunder or under any other Credit Document (other than any amount referred to in clause 11.1(a)); or
11.2 Representations,
Etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or in any other Credit Document or any
certificate, statement, report or other document delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue
in any material respect on the date as of which made or deemed made; or
11.3 Covenants.
Any Credit Party shall (a) default in the due performance or observance by it of any term, covenant or agreement contained in Section 9.1(e)(i),
Section 9.5 (with respect to the existence of the Borrower only) or Section 10; provided that with respect to Section 10.10,
(i) an Event of Default (a “Financial Performance Covenant Event of Default”) shall not occur until the expiration
of the 10th Business Day subsequent to the date the certificate calculating compliance with Section 10.10 as of the last day of any
fiscal quarter is required to be delivered pursuant to Section 9.1(d) (without giving pro forma effect to any grace period for
such delivery) with respect to such fiscal quarter or fiscal year, as applicable, and (ii) any default under Section 10.10 shall
not constitute an Event of Default with respect to any Loans or Commitments hereunder, other than the Revolving Credit Loans and the Revolving
Credit Commitments, until the date on which the Revolving Credit Loans (if any) have been accelerated, and the Revolving Credit Commitments
have been terminated, in each case, by the Required Revolving Credit Lenders, or (b) default in the due performance or observance
by it of any term, covenant or agreement (other than those referred to in Section 11.1, Section 11.2 and clause (a) of
this Section 11.3) contained in this Agreement or any other Credit Document and such default shall continue unremedied for a period
of at least 30 days after receipt of written notice by the Borrower from the Administrative Agent or the Required Lenders; or
11.4 Default
Under Other Agreements. (a) The Borrower or any of the Restricted Subsidiaries shall (i) fail to make any required payment
with respect to any Indebtedness (other than any Indebtedness described in Section 11.1) in excess of $20,000,000 beyond the period
of grace, if any, provided in the instrument or agreement under which such Indebtedness was created or (ii) fail to observe or perform
any agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist (other than, (i) with respect to Indebtedness consisting of any Hedging
Agreements, termination events or equivalent events pursuant to the terms of such Hedging Agreements and (ii) secured Indebtedness
that becomes due solely as a result of the sale, transfer or other Disposition (including as a result of Recovery Event) of the property
or assets securing such Indebtedness), the effect of which default or other event or condition 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, any such Indebtedness to become due
prior to its stated maturity; provided that such failure remains unremedied or has not been waived (including in the form of an
amendment) by the holders of such Indebtedness or (b) without limiting the provisions of clause (a) above, any such Indebtedness
shall be declared to be due and payable, or required to be prepaid prior to the stated maturity thereof other than by (x) a regularly scheduled required prepayment
or (y) as a mandatory prepayment or redemption; provided that this clause (b) shall not apply to (A) Indebtedness
outstanding under any Hedging Agreements that becomes due pursuant to a termination event or equivalent event under the terms of such
Hedging Agreements, (B) secured Indebtedness that becomes due as a result of a Disposition or a Recovery Event with respect to the
property or assets securing such Indebtedness or (C) Indebtedness that is convertible into Capital Stock and converts to Capital
Stock in accordance with its terms; or
11.5 Bankruptcy,
Etc. Holdings, the Borrower or any Specified Subsidiary shall commence a voluntary case, proceeding or action concerning itself under
the Bankruptcy Code; or an involuntary case, proceeding or action is commenced against Holdings, the Borrower or any Specified Subsidiary
under the Bankruptcy Code and the petition is not dismissed within 60 days after commencement of the case, proceeding or action; or Holdings,
the Borrower or any Specified Subsidiary commences any other proceeding or action under any other Debtor Relief Law of any jurisdiction
whether now or hereafter in effect relating to Holdings, the Borrower or any Specified Subsidiary; or a custodian (as defined in the Bankruptcy
Code), receiver, receiver manager, trustee or similar person is appointed for, or takes charge of, all or substantially all of the property
of Holdings, the Borrower or any Specified Subsidiary; or there is commenced against Holdings, the Borrower or any Specified Subsidiary
under any other Debtor Relief Law any such proceeding or action that remains undismissed for a period of 60 days;or any order of relief or other order approving
any such case or proceeding or action is entered; or Holdings, the Borrower or any Specified Subsidiary suffers any appointment of any
custodian, receiver, receiver manager, trustee or the like for it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or Holdings, the Borrower or any Specified Subsidiary makes a general assignment for the benefit of
creditors; or
11.6 ERISA.
(a) With respect to any Pension Plan, the failure by Holdings, the Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate
to satisfy the minimum funding standard required for any plan year or part thereof, whether or not waived, under Section 412 of the
Code; with respect to any Multiemployer Plan, the failure to make any required contribution or payment; a determination that any Pension
Plan is in “at-risk” status within the meaning of Section 430 of the Code or Section 303 of ERISA or any Multiemployer
Plan is in “endangered or critical status” within the meaning of Section 432 of the Code or Section 305 of ERISA;
any Pension Plan is or shall have been terminated or is the subject of termination proceedings by the PBGC under Title IV of ERISA (including
the giving of written notice thereof); a determination that a Pension Plan or Multiemployer Plan is “insolvent” within the
meaning of Section 4245 of ERISA; with respect to any Multiemployer Plan, notification by the administrator of such Multiemployer
Plan that the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred or will be assessed Withdrawal Liability
to such Multiemployer Plan; the PBGC provides written notice of its intent to terminate any Pension Plan or to appoint a trustee to administer
any Pension Plan in a manner that results in a liability under Title IV of ERISA to the Borrower, any Restricted Subsidiary thereof or
any ERISA Affiliate; an event shall have occurred or a condition shall exist entitling the PBGC to provide written notice of its intent
to terminate any Pension Plan; the Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate has incurred or is reasonably likely
to incur a liability to or on account of a Pension Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064 or 4069 of ERISA
or Section 4971 or 4975 of the Code (including the receipt by Borrower, any Restricted Subsidiary thereof or any ERISA Affiliate
of written notice thereof); any termination of a Foreign Plan has occurred that gives rise to liability for Holdings, the Borrower or
any Restricted Subsidiary; or any non-compliance with the funding requirements under Applicable Law for any Foreign Plan has occurred;
(b) there could result from any event or events set forth in clause (a) of this Section 11.6 the imposition of a Lien,
the granting of a security interest, or a liability, or the reasonable likelihood of incurring a Lien, security interest or liability;
and (c) such Lien, security interest or liability will or would be reasonably likely to have a Material Adverse Effect; or
11.7 Guarantee.
The Guarantee or any material provision thereof shall cease to be in full force or effect or any Guarantor thereunder or any Credit Party
shall deny or disaffirm in writing any Guarantor’s obligations under the Guarantee; or
11.8 Security
Document. Any Security Document or any material provision thereof shall cease to be in full force or effect (other than pursuant to
the terms hereof or thereof or as a result of acts or omissions of the Administrative Agent, the Collateral Agent or any Lender), or any
grantor, pledgor or mortgagor thereunder or any Credit Party shall deny or disaffirm in writing any grantor’s, pledgor’s or
mortgagor’s obligations under such Security Document; or
11.9 Judgments.
One or more judgments or decrees shall be entered against Holdings, the Borrower or any of the Restricted Subsidiaries for the payment
of money in an aggregate amount in excess of $20,000,000 for all such judgments and decrees for Holdings, the Borrower and the Restricted
Subsidiaries (to the extent not paid or fully covered by insurance provided by a carrier not disputing coverage) and any such judgments
or decrees shall not have been satisfied, vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof;
or
11.10 Change
of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter,
if any Event of Default shall then be continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the Borrower, take any or all of the following actions: (i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately, (ii) require that the Letter of Credit Obligations be Cash Collateralized as provided in Section 3.8(b) and
(iii) declare the principal of and any accrued interest and fees in respect of all Loans and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower without prejudice to the rights of any Agent or any Lender to enforce
its claims against the Borrower, except as otherwise specifically provided for in this Agreement (provided that, if an Event of
Default specified in Section 11.5 with respect to the Borrower shall occur, no written notice by the Administrative Agent shall be
required and the Commitments shall automatically terminate and all amounts in respect of all Loans and all Obligations shall automatically
become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrower).
Notwithstanding the foregoing,
during any period during which solely a Financial Performance Covenant Event of Default has occurred and is continuing, the Administrative
Agent may with the consent of, and shall at the request of, the Required Revolving Credit Lenders take any of the foregoing actions described
in the immediately preceding paragraph solely as they relate to the Revolving Credit Lenders (versus the Lenders), the Revolving Credit
Commitments (versus the Commitments), the Revolving Credit Loans and the Swingline Loans (versus the Loans), and the Letters of Credit.
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11.11
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Borrower’s Right to Cure.
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(a) Financial
Performance Covenant. Notwithstanding anything to the contrary contained in this Section 11, in the event that the Borrower reasonably
expects to fail (or has failed) to comply with the requirements of the Financial Performance Covenant as of the end of any Test Period,
at any time during the last fiscal quarter of such Test Period through and until the expiration of the 10th Business Day subsequent to
the date the financial statements are required to be delivered pursuant to Section 9.1(a) or Section 9.1(b) with respect
to such fiscal quarter (the “Cure Deadline”), the Borrower (or any Parent Entity thereof) shall have the right to issue
Capital Stock (other than Disqualified Capital Stock) for cash or otherwise receive cash contributions to (or, in the case of any Parent
Entity of Holdings, receive equity interests in Holdings for its cash contributions to) the Capital Stock (other than Disqualified Capital
Stock) of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of the net proceeds of
such issuance or contribution (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right; provided
such Cure Amount is received by the Borrower on or before the applicable Cure Deadline, compliance with the Financial Performance Covenant
for such Test Period shall be recalculated giving pro forma effect to the following pro forma adjustments:
(i) Consolidated
EBITDA shall be increased with respect to such applicable fiscal quarter with respect to which such Cure Amount is received by the Borrower
and any Test Period that includes such fiscal quarter, solely for the purpose of determining whether an Event of Default has occurred
and is continuing as a result of a violation of the Financial Performance Covenant and, subject to clause (c) below, not for any
other purpose under this Agreement, by an amount equal to the Cure Amount and any prepayment of Indebtedness with the Cure Amount shall
be disregarded for purposes of measuring the Financial Performance Covenant for such Test Period;
(ii) if,
after giving pro forma effect to such increase in Consolidated EBITDA, the Borrower shall then be in compliance with the requirements
of the Financial Performance Covenant, the Borrower shall be deemed to have satisfied the requirements of the Financial Performance Covenant
as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and
the applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for purposes of this Agreement;
and
(iii) Consolidated
First Lien Debt in the Test Period for which the Cure Amount is deemed applied shall be decreased solely to the extent proceeds of the
Cure Amount are applied to prepay any Indebtedness (provided that any such Indebtedness so prepaid shall be a permanent repayment of such
Indebtedness and termination of commitments thereunder) included in the calculation of Consolidated First Lien Debt;
provided
that the Borrower shall have notified the Administrative Agent in writing of the exercise of such Cure Right within five Business Days
of the receipt of the Cure Amounts.
(b) Limitation
on Exercise of Cure Right. Notwithstanding anything herein to the contrary, (i) in each four fiscal-quarter period there shall
be no more than two fiscal quarters with respect to which the Cure Right is exercised, (ii) there shall be no more than five exercises
of Cure Right in the aggregate, (iii) the Cure Amount shall be no greater than the amount required for purposes of complying with
the Financial Performance Covenant as of the end of such fiscal quarter (such amount, the “Necessary Cure Amount”);
provided that, if the Cure Right is exercised prior to the date financial statements are required to be delivered for such fiscal
quarter then the Cure Amount shall be equal to the amount reasonably determined by the Borrower in good faith that is required for purposes
of complying with the Financial Performance Covenant for such fiscal quarter (such amount, the “Expected Cure Amount”),
(iv) subject to clause (c) below, all Cure Amounts shall be disregarded for purposes of determining the Applicable Margin, any
baskets, with respect to the covenants contained in the Credit Documents, any “incurrence” based financial ratio or the usage
of the Available Amount or the Available Equity Amount and
(v) no borrowing shall be made under the
Revolving Credit Facility (or Letters of Credit issued, increased or extended) following a breach of the Financial Maintenance Covenant
until the Cure Amount has actually been received by the Borrower.
(c) Expected
Cure Amount. Notwithstanding anything herein to the contrary, to the extent that the Expected Cure Amount is (i) greater than
the Necessary Cure Amount, then such difference may be used for the purposes of determining any baskets (other than any previously contributed
Cure Amounts), with respect to the covenants contained in the Credit Documents, the Available Amount or the Available Equity Amount and
(ii) less than the Necessary Cure Amount, then not later than the applicable Cure Deadline, the Borrower must receive the cash proceeds
of the Cure Amount or a cash capital contribution to Holdings, which cash proceeds received by Borrower shall be equal to the shortfall
between such Expected Cure Amount and such Necessary Cure Amount.
SECTION 12. The
Administrative Agent and the Collateral Agent.
12.1 Appointment.
(a) Each
Lender hereby irrevocably designates and appoints UBS AG, Stamford Branch (together with any successor Administrative Agent pursuant to
Section 12.11) as Administrative Agent as the agent of such Lender under this Agreement and the other Credit Documents, and each
such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Credit Document
or otherwise exist against the Administrative Agent.
(b) Each
Lender hereby appoints UBS AG, Stamford Branch (together with any successor Collateral Agent pursuant to Section 12.11) as the Collateral
Agent hereunder and authorizes the Collateral Agent to (i) take such action on its behalf and to exercise all rights, powers and
remedies and perform the duties as are expressly delegated to the Collateral Agent under such Credit Documents and (ii) exercise
such powers as are reasonably incidental thereto. For purposes of the exculpatory, liability-limiting, indemnification and other similar
provisions of this Section 12, references to the “Administrative Agent” shall be deemed to include the Collateral
Agent in its capacity as such. Each Lender hereby appoints the Collateral Agent to enter into, and sign for and on behalf of the Lenders
as Secured Parties, the Security Documents for the benefit of the Lenders and the Secured Parties.
(c) Each
Lead Arranger and each Joint Bookrunner, in its capacity as such, shall not have any obligations, duties or responsibilities under this
Agreement but shall be entitled to all benefits of this Section 12.
12.2 Limited
Duties. Under the Credit Documents, the Administrative Agent (i) is acting solely on behalf of the Lenders (except to the limited
extent provided in Section 2.5(e)), with duties that are entirely administrative in nature, notwithstanding the use of the defined
term “Administrative Agent,” the terms “agent,” “administrative agent” and “collateral agent”
and similar terms in any Credit Document to refer to the Administrative Agent, which terms are used for
title purposes only, (ii) is not assuming any obligation under any Credit Document other than as expressly set forth therein or any
role as agent, fiduciary or trustee of or for any Lender or any other Secured Party and (iii) shall have no implied functions, responsibilities,
duties, obligations or other liabilities under any Credit Document, and each Lender hereby waives and agrees not to assert any claim against
the Administrative Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above.
12.3 Binding
Effect. Each Lender agrees that (i) any action taken by the Administrative Agent or the Required Lenders (or, if expressly required
hereby, a greater proportion of the Lenders) or the Required Revolving Credit Lenders in accordance with the provisions of the Credit
Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of Required Lenders (or, where so
required, such greater proportion) or the Required Revolving Credit Lenders and (iii) the exercise by the Administrative Agent or
the Required Lenders (or, where so required, such greater proportion) or the Required Revolving Credit Lenders of the powers set forth
herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the
Secured Parties.
12.4 Delegation
of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact, or through their respective Related Parties, and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The exculpatory provisions of this Section 12 shall apply to any such sub-agent and to the Related Parties
of the Administrative Agent and any such sub agent. The Administrative Agent shall not be responsible for the negligence or misconduct
of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the
Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
12.5 Exculpatory
Provisions. Neither the Administrative Agent nor any of its respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall (a) be liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Credit Document, including, for the avoidance of doubt, any action taken by it in good faith in connection
with the entry into, or any amendment of, or any action taken in connection with, any Customary Intercreditor Agreement contemplated by
the terms hereof (except for its or such Person’s own gross negligence or willful misconduct as determined in a final and non-appealable
decision of a court of competent jurisdiction), (b) be responsible for or have any duty to ascertain or inquire into (i) any
recitals, statements, representations or warranties contained in this Agreement or any other Credit Document or in any certificate, report,
statement, agreement or other document referred to or provided for in, or received by the Administrative Agent under or in connection
with, this Agreement or any other Credit Document, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Credit Document, (iii) the creation, perfection priority of any Lien purported to be created by the
Credit Documents, (iv) any failure of the Borrower, any Guarantor or any other Credit Party to perform its obligations hereunder
or thereunder or the occurrence of any Default or (v) the value or the sufficiency of any Collateral, (c) be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (d) have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by
the other Credit Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents), provided
that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Credit Document or Applicable Law, including for the avoidance of doubt
any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any Debtor Relief Law and (e) except as expressly set forth herein
and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating
to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Credit Document,
or to inspect the properties, books or records of the Borrower. The Administrative Agent shall have no responsibility, duty or liability
for monitoring or enforcing the list of, or prohibitions on assignments or participations
to, Disqualified Lenders or for any assignment or participation to a Disqualified Lender.
12.6 Reliance
by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex, electronic mail message or teletype message, statement,
order or other document or conversation believed by it to be genuine and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat the Lender specified in the Register with respect to any amount
owing hereunder as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have
been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Credit Document unless it shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the other Credit Documents in accordance with a request of
the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.
12.7 Notice
of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative
Agent receives such a written notice, the Administrative Agent shall give notice thereof to the Lenders and the Collateral Agent. The
Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default
as it shall deem advisable in the best interests of the Lenders (except to the extent that this Agreement requires that such action be
taken only with the approval of the Required Lenders or each of the Lenders, as applicable).
12.8 Non-Reliance
on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its
respective officers, directors, employees, agents, attorneys-in- fact or Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Borrower, any Guarantor or any other
Credit Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents
to the Administrative Agent 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 appraisal of and investigation
into the business, operations, property, financial and other condition and creditworthiness of the Borrower, any Guarantor and any other
Credit Party and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties, and based
on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other Credit Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrower, any Guarantor
and any other Credit Party. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative
Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information
concerning the business, assets, operations, properties, financial condition, prospects or creditworthiness of the Borrower, any Guarantor
or any other Credit Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys- in-fact or Affiliates.
12.9 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent required to be reimbursed by the Borrower
and not so reimbursed by the Borrower, and without limiting the obligation of the Borrower to do so), ratably according to their respective
portions of the Total Credit Exposure in effect on the date on which indemnification
is sought (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with their respective portions of the Total Credit Exposure in effect immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents
or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent’s gross negligence or willful misconduct as determined in a final and non-appealable decision
of a court of competent jurisdiction. The agreements in this Section 12.9 shall survive the payment of the Loans and all other amounts
payable hereunder.
12.10 Agent
in Its Individual Capacity. Each of UBS AG, Stamford Branch and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower, any Guarantor and any other Credit Party as though UBS AG, Stamford Branch was not the
Administrative Agent hereunder and under the other Credit Documents. With respect to the Loans made by it, UBS AG, Stamford Branch shall
have the same rights and powers under this Agreement and the other Credit Documents as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include UBS AG, Stamford Branch
in its individual capacity.
12.11 Successor
Agent. The Administrative Agent and/or the Collateral Agent may resign as the Administrative Agent and/or Collateral Agent, as the
case may be, upon 20 days’ prior written notice to the Lenders, the Letter of Credit Issuer, the Swingline Lender, the other Agents
and the Borrower. If the Administrative Agent and/or Collateral Agent becomes a Defaulting Lender, then such Administrative Agent or Collateral
Agent, as the case may be, may be removed as the Administrative Agent or Collateral Agent, as the case may be, at the reasonable request
of the Borrower and the Required Lenders. If the Administrative Agent and/or Collateral Agent shall resign or be removed as the Administrative
Agent and/or the Collateral Agent under this Agreement and the other Credit Documents, then (a) the Required Lenders shall appoint
from among the Lenders a successor for the Lenders within 30 days, or (b) in the case of a resignation, the Administrative Agent
and/or the Collateral Agent may, on behalf of the Lenders, appoint a successor Administrative Agent and/or the Collateral Agent, as applicable,
selected from among the Lenders. In either case, the successor shall be approved by the Borrower (which approval shall not be unreasonably
withheld and shall not be required if an Event of Default under Section 11.1 or 11.5 shall have occurred and be continuing), whereupon
such successor shall succeed to the rights, powers and duties of the Administrative Agent and/or the Collateral Agent, and the term “Administrative
Agent,” and/or “Collateral Agent,” as applicable, shall mean such successor effective upon such appointment
and approval, and the former Administrative Agent’s and/or Collateral Agent’s rights, powers and duties as the Administrative
Agent and/or the Collateral Agent shall be terminated without any other or further act or deed on the part of such former Administrative
Agent and/or Collateral Agent or any of the parties to this Agreement or any Lenders or other holders of the Loans. If no successor has
accepted appointment as Administrative Agent and/or the Collateral Agent by the date which is 30 days following the retiring Administrative
Agent’s and/or Collateral Agent’s notice of resignation, as the case may be, (x) the retiring Administrative Agent’s
resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor as provided for above and (y) the retiring Collateral
Agent’s resignation shall nevertheless thereupon become effective at such time as a successor Collateral Agent shall have been appointed,
and such successor Collateral Agent shall have accepted such appointment, in accordance with the terms of this Section 12.11 and
upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to
the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may reasonably request,
in order to continue the perfection of the Liens granted or purported to be granted by the Security Documents. After any retiring or removed
Administrative Agent’s and/or the Collateral Agent’s resignation or removal as the Administrative Agent and/or Collateral
Agent, the provisions of this Section 12 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent and/or Collateral
Agent under this Agreement and the other Credit Documents.
Any resignation or replacement
by UBS AG, Stamford Branch as Administrative Agent pursuant to this Section shall also constitute its resignation or replacement
as Letter of Credit Issuer and Swingline Lender. If UBS AG, Stamford Branch resigns or is replaced as Letter of Credit Issuer, it shall
retain all the rights, powers, privileges and duties of the Letter of Credit Issuer hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation or replacement as Letter of Credit Issuer and all Letter of Credit Obligations with respect
thereto, including the right to require the Lenders to make Revolving Credit Loans or fund risk participations in Unpaid Drawings pursuant
to Sections 3.3 and 3.4. At the time such resignation or replacement shall become effective, the Borrower shall pay to UBS AG, Stamford
Branch all accrued and unpaid fees pursuant to Sections 4.1(b) and 4.1(d). After such resignation or replacement, UBS AG, Stamford
Branch shall not be required to issue additional Letters of Credit or amend or renew existing Letters of Credit or issue additional Swingline
Loans. If UBS AG, Stamford Branch resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder
with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require
the Lenders to make Revolving Credit Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.1(d)(ii).
Upon the appointment by the Borrower of a successor Letter of Credit Issuer or Swingline Lender hereunder (which successor shall in all
cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Letter of Credit Issuer or Swingline Lender, as applicable, (b) the retiring Letter
of Credit Issuer and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other
Credit Documents, and (c) the successor Letter of Credit Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to UBS AG, Stamford Branch to effectively
assume the obligations of UBS AG, Stamford Branch with respect to such Letters of Credit.
12.12 Withholding
Tax. To the extent the Administrative Agent reasonably believes that it is required by any Applicable Law, the Administrative Agent
may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or expanding the
obligations of the Credit Parties under Section 5.4, if the United States Internal Revenue Service or any authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify
the Administrative Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by
the Administrative Agent as tax or otherwise, including penalties and interest, together with all expenses incurred, including legal expenses,
allocated staff costs and any out-of-pocket expenses. The agreements in this Section 12.12 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder. The Administrative Agent shall be entitled to set off
any amounts owing to it under Section 12.12 against any amounts otherwise payable to the applicable Lender.
12.13 Duties
as Collateral Agent and as Paying Agent. Without limiting the generality of Section 12.1 above, the Collateral Agent shall have
the sole and exclusive right and authority (to the exclusion of the Lenders each Hedge Bank and each Cash Management Bank), and is hereby
authorized, to (i) act as the disbursing and collecting agent for the Secured Parties with respect to all payments and collections
arising in connection with the Credit Documents (including in any proceeding described in Section 11.5 or any other proceeds under
any other Debtor Relief Laws, and each Person making any payment in connection with any Credit Document to any Secured Party is hereby
authorized to make such payment to the Collateral Agent, (ii) file and prove claims and file other documents necessary or desirable
to allow the claims of the Secured Parties with respect to any Obligation in any proceeding described in Section 11.5 or any other
proceeds under any other Debtor Relief Laws (but not to vote, consent or otherwise act on behalf of such Secured Party), (iii) act
as collateral agent for each Secured Party for purposes of the perfection of all Liens created by such agreements and all other purposes
stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or
desirable to maintain the perfection and priority of the Liens created or purported to be created by the Credit Documents, (vi) except
as may be otherwise specified in any Credit Document, exercise all remedies given to the Collateral Agent and the other Secured Parties
with respect to the Collateral, whether under the Credit Documents, applicable requirements of law or otherwise, (vii) negotiate
the form of any Mortgage and (viii) execute any amendment, consent or waiver under the Security Documents on behalf of the Secured
Parties, to the extent consented to in accordance with Section 13.1 and the terms thereof; provided, however, that
the Collateral Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Collateral Agent and the
other Secured Parties for purposes of the perfection of all Liens with respect to the Collateral, including any deposit account maintained
by a Credit Party with, and cash and Cash Equivalents held by such Secured Party and may further authorize and direct the Secured Parties
to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject
thereto to the Collateral Agent, and each Secured Party hereby agrees to take such further actions to the extent, and only to the extent,
so authorized and directed.
12.14 Authorization
to Release Liens and Guarantees. The Administrative Agent and the Collateral Agent are hereby irrevocably authorized by each of the
Lenders to effect any release or subordination of Liens or the Guarantees contemplated by Section 13.17 without further action or
consent by the Lenders.
12.15 Intercreditor
Agreements. The Collateral Agent is hereby authorized to enter into any Customary Intercreditor Agreement to the extent contemplated
by the terms hereof, and the parties hereto acknowledge that such Customary Intercreditor Agreement is binding upon them. Each Lender
(a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Customary Intercreditor Agreement
and (b) hereby authorizes and instructs the Collateral Agent to enter into the Customary Intercreditor Agreement and to subject the
Liens on the Collateral securing the Obligations to the provisions thereof. In addition, each Lender hereby authorizes the Collateral
Agent to enter into (i) any amendments to any Customary Intercreditor Agreement, and (ii) any other intercreditor arrangements,
in the case of clauses (i), and (ii) to the extent required to give effect to the establishment of intercreditor rights and privileges
as contemplated and required by Section 10.2 of this Agreement.
Each Lender acknowledges and
agrees that any of the Agents (including UBS AG, Stamford Branch) (or one or more of their respective Affiliates) may (but are not obligated
to) act as the “Representative” or like term for the holders of Credit Agreement Refinancing Indebtedness under the security
agreements with respect thereto and/or under a Customary Intercreditor Agreement. Each Lender waives any conflict of interest, now contemplated
or arising hereafter, in connection therewith and agrees not to assert against any Agent or any of its affiliates any claims, causes of
action, damages or liabilities of whatever kind or nature relating thereto.
12.16 Secured
Cash Management Agreements and Secured Hedge Agreements. Except as otherwise expressly set forth herein or in any Guarantee or any
Security Document, no Cash Management Bank or Hedge Bank that obtains the benefits of any Guarantee or any Collateral by virtue of the
provisions hereof or of any Guarantee or any Security Document shall have any right to notice of any action or to consent to, direct or
object to any action hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the release or
impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Credit
Documents. Notwithstanding any other provision of this Section 12 to the contrary, the Administrative Agent shall not be required
to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash
Management Agreements and Secured Hedging Agreements unless the Administrative Agent has received written notice of such Obligations,
together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge
Bank, as the case may be.
12.17 Administrative
Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding
relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Obligations
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the Letter of Credit Issuer and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, Letter of Credit Issuer and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders, Letter of Credit Issuer and the Administrative Agent under
Sections 4.1 and 13.5) allowed in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and the Letter of Credit Issuer to make such payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to the Lenders and Letter of Credit Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective
agents and counsel, and any other amounts due the Administrative Agent under Sections 4.1 and 13.5.
Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the Letter of Credit Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or Letter of Credit Issuer or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Letter
of Credit Issuer in any such proceeding.
The Secured
Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion
of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a
deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all
or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States,
including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar laws in any other jurisdictions
to which a Credit Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by
(or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any
Applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to
be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent
interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to
the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased
(or in the Capital Stock or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection
with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to
adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative
Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Capital Stock thereof shall be
governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without
giving pro forma effect to the limitations on actions by the Required Lenders contained in clauses (i) through (vii) of Section 13.1
of this Agreement, (iii) the Administrative Agent shall be authorized to assign the relevant Obligations to any such acquisition
vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any
Capital Stock and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit
bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (iv) to the extent that Obligations
that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher
or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition
vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Capital Stock and/or debt instruments
issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically
be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
SECTION 13. Miscellaneous.
13.1 Amendments
and Waivers. Except as expressly set forth in this Agreement, neither this Agreement nor any other Credit Document (other than the
Fee Letter), nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this
Section 13.1. Except with respect to any amendment, modification or waiver contemplated in clause (i) below, which shall only
require the consent of the Lenders expressly set forth therein and not the Required Lenders or any other majority or required percentage
of Lenders of any Class of Loans or Commitments, the Required Lenders may, or, with the written consent of the Required Lenders,
the Administrative Agent and/or the Collateral Agent shall, from time to time, (a) enter into with the relevant Credit Party or Credit
Parties written amendments, supplements or modifications hereto and to the other Credit Documents for the purpose of adding any provisions
to this Agreement or the other Credit Documents or changing in any manner the rights of the Lenders or the Credit Parties hereunder or
thereunder or (b) waive, on such terms and conditions as the Required Lenders, the Administrative Agent and/or the Collateral Agent,
as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that no such waiver, amendment, supplement or modification shall directly:
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(i)
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without the written consent of each Lender directly and adversely affected thereby:
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(A) reduce
or forgive the principal of any Loan (it being understood that a waiver of any condition precedent set forth in Section 6 and 7 or
waiver or amendment of any Default, Event of Default or mandatory prepayment shall not constitute a reduction or forgiveness of principal);
(B) extend
the date of any scheduled amortization payment (including any scheduled Initial Term Loan Repayment Date,
any scheduled 2019 Incremental Term Loan Repayment Date or any date scheduled for the repayment of any installment of Incremental
Term Loans) or the final scheduled maturity date of any Loan (other than as a result of waiving the conditions precedent set forth in
Sections 6 and 7 or other than as a result of a waiver or amendment of any Default, Event of Default or mandatory prepayment (which shall
not constitute an extension, forgiveness or postponement of any maturity date)); provided that the foregoing shall not apply to
extensions effected in accordance with Section 2.15;
(C) reduce
the amount of any fee payable hereunder or reduce the stated interest rate applicable to the Loans (it being understood that any
change (x) to the definition of “Consolidated First Lien Debt to Consolidated EBITDA Ratio” or (y) in the
component definitions thereof shall not constitute a reduction in the rate); provided that only the consent of the Required
Lenders shall be necessary (i) to waive any obligation of the Borrower to pay interest at the “default rate,”
(ii) to amend Section 2.8(c) or (iii) to waive
any requirement of Section 2.14(b);
(D) extend
the date for the payment of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default
increase in interest rates and other than as a result of a waiver or amendment of any Default, Event of Default or mandatory prepayment
(which shall not constitute an extension, forgiveness or postponement of any date for payment of principal, interest or fees));
(E) extend
the final expiration date of any Lender’s Commitment (provided that any Lender, upon the request of the Borrower, may extend
the final expiration date of its Commitments without the consent of any other Lender, including the Required Lenders);provided
that the foregoing shall not apply to extensions effected in accordance with Section 2.15;
(F) extend
the final expiration date of any Letter of Credit beyond the date specified in Section 3.1(b);
(G) increase
the aggregate amount of any Commitment of any Lender (other than (i) with respect to any Incremental Facility to which such Lender
has agreed, (ii) as a result of waiving the conditions precedent set forth in Sections 6 and 7 or (iii) as a result of a waiver
or amendment of any Default or Event of Default (which shall not constitute an extension or increase of any commitment));
(H) decrease or forgive any Repayment Amount; or
(I) amend the application of proceeds under Section 5.4 of the Security Agreement or Section 12(b) of the Pledge Agreement;
or
(ii) reduce
the percentages specified in the definition of the term “Required Revolving Credit Lenders” without the written consent
of all Revolving Credit Lenders, or
(iii) amend,
modify or waive any provision of this Section 13.1 or reduce the percentages specified in the definition of the term “Required
Lenders” or consent to the assignment or transfer by the Borrower of its rights and obligations under any Credit Document to which
it is a party (except as permitted pursuant to Section 10.3), in each case without the written consent of each Lender, or
(iv) amend,
modify or waive any provision of Section 12 without the written consent of then- current Administrative Agent and/or the Collateral
Agent, as applicable, or
(v) amend,
modify or waive any provision of Section 2.16 (to the extent applicable to it) or Section 3 without the written consent of the
Letter of Credit Issuer, or
(vi) amend,
modify or waive any provisions hereof relating to Swingline Loans without the written consent of the Swingline Lender, or
(vii) subject
to any applicable Customary Intercreditor Agreement, release all or substantially all of the value of the Guarantors under the Guarantee
(except as expressly permitted by the Guarantee), or release all or substantially all of the Collateral under the Security Documents (except
as expressly permitted by the Security Documents), in each case without the prior written consent of each Lender.
provided, further,
that (A) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement
of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class)
may be effected by an agreement or agreements in writing entered into by Holdings, the Borrower, and the requisite percentage in interest
of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders
were the only Class of Lenders hereunder at the time and,
(B) any provision of this Agreement or any other Credit Document may be amended by an agreement in writing entered into by
Holdings, the Borrower and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency (including, without limitation,
amendments, supplements or waivers to any of the Security Documents, guarantees, intercreditor agreements or related documents executed
by any Credit Party or any other Subsidiary in connection with this Agreement if such amendment, supplement or waiver is delivered in
order to cause such Security Documents, guarantees, intercreditor agreements or related documents to be consistent with this Agreement
and the other Credit Documents) so long as, in each case, the Lenders shall have received at least five Business Days’ prior written
notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders,
a written notice from the Required Lenders stating that the Required Lenders object to such amendment; provided that the consent
of the Lenders or the Required Lenders, as the case may be, shall not be required to make any such changes necessary to be made in connection
with (w) any borrowing of Incremental Term Loans to effect the provisions of Section 2.14, (x) the provision of any Incremental
Revolving Credit Commitment Increase or any Additional/Replacement Revolving Credit Commitments, (y) in connection with an amendment
that addresses solely a re-pricing transaction in which any Class of Term Loans is refinanced with a replacement Class of term
loans bearing (or is modified in such a manner such that the resulting term loans bear) a lower Effective Yield for which only the consent
of the Lenders holding Term Loans subject to such permitted repricing transaction that will continue as a Lender in respect of the repriced
tranche of Term Loans or modified Term Loans or (z) changes otherwise to effect the provisions of Section 2.14, 2.15, 2.17
or 10.2(a) and (C) Holdings, the Borrower and the Administrative Agent may, without the input or consent of the other Lenders,
(i) negotiate the form of any Mortgage as may be necessary or appropriate in the opinion of the Collateral Agent and (ii) effect
changes to this Agreement that are necessary and appropriate to provide for the mechanics contemplated by the offering process set forth
in Section 13.6(g)(i)(B) herein.
Notwithstanding the foregoing,
only the consent of the Required Revolving Credit Lenders shall be required to (and only the Required Revolving Credit Lenders shall have
the ability to) waive, amend, supplement or modify the covenant set forth in Section 10.10 (including any defined terms as they relate
thereto).
Notwithstanding the foregoing,
the Administrative Agent and the Collateral Agent may, without the consent of any Lender, enter into any amendment to the Security Documents
or a Customary Intercreditor Agreement contemplated by Section 10.2(a) or 10.2(u).
To the extent notice has been
provided to the Administrative Agent pursuant to the definition of Credit Agreement Refinancing Indebtedness, Permitted Additional Debt
or Permitted Refinancing Indebtedness or pursuant to Sections 2.14(c), 10.1(k)(i) or 10.1(s) with respect to the inclusion of
any Previously Absent Financial Maintenance Covenant, this Agreement shall be automatically and without further action on the part of
any Person hereunder and notwithstanding anything to the contrary in this Section 13.1 deemed modified to include such Previously
Absent Financial Maintenance Covenant on the date of the Incurrence of the applicable Indebtedness to the extent required by the terms
of such definition or section.
13.2 Notices;
Electronic Communications. Notices and other communications provided for herein shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:
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(a)
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if to the Borrower, Holdings or any other Credit Party, to it at:
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c/o Wirepath LLC
1800 Continental Boulevard, Suite 200
Charlotte, NC 28273
Attention: [*****]
Tel: [*****]
Electronic mail: [*****]
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(b)
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if to the Administrative Agent, Collateral Agent or Swingline Lender to it at:
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UBS AG, Stamford Branch
Attention: Structured Finance Processing
600 Washington Blvd., 9th Floor Stamford, CT 06901
Facsimile: [*****]
Telephone: [*****]
Email: [*****]
and
(c) if
to a Lender or Letter of Credit Issuer, to it at its address (or fax number) set forth on Schedule 13.2 or in the Assignment and Acceptance, Incremental
Agreement or documents relating to any Refinancing pursuant to which such Lender shall have become a party hereto.
All notices and other communications
given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt
if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch by certified or registered
mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 13.2 or in accordance with the latest unrevoked direction from such party given
in accordance with this Section 13.2. Notices and other communications may also be delivered by e-mail to the email address of a
representative of the applicable Person provided from time to time by such Person.
The Borrower hereby agrees,
unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below has not been provided by
the Administrative Agent to the Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative Agent all information,
documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit Documents or to the Lenders
under Section 9, including all notices, requests, financial statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (i) is or relates to a Notice of Borrowing or a notice pursuant to Section 2.6,
(ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides
notice of any Default or Event of Default under this Agreement or any other Credit Document or (iv) is required to be delivered to
satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder (all
such non- excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications
in an electronic/soft medium that is properly identified in a format reasonably acceptable to the Administrative Agent to an electronic
mail address as directed by the Administrative Agent. In addition, the Borrower agrees, and agrees to cause its Subsidiaries, to continue
to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Credit Documents
but only to the extent requested by the Administrative Agent.
The Borrower hereby acknowledges
that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks or another
similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders
(i.e., Lenders that do not wish to receive material non- public information with respect to Holdings (or any Parent Entity thereof)
or the Borrower or any of their respective securities) (each, a “Public Lender”). The Borrower hereby agrees that (x) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agents and the Lenders to treat the
Borrower Materials as not containing any material non-public information with respect to Holdings (or any Parent Entity thereof) or the
Borrower or any of their respective securities for purposes of United States federal securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 13.16); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public
Investor”; and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing,
the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the Borrower notifies the Administrative Agent
promptly that any such document contains material non-public information: (1) the Credit Documents, (2) notification of changes
in the terms of the Credit Facilities and (3) all information delivered pursuant to Section 9.01(a) and (b).
Each Public Lender agrees
to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender’s compliance procedures and Applicable Law, including United States federal securities laws, to make reference
to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to Holdings (or any Parent Entity thereof) or the Borrower or any of their respective securities
for purposes of United States federal securities laws.
THE PLATFORM IS PROVIDED
“AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANT
THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS
OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE
ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL
THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY OTHER AGENT OR ANY OTHER
PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE
AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR NOTICES THROUGH THE PLATFORM, ANY OTHER ELECTRONIC PLATFORM OR
ELECTRONIC MESSAGING SERVICE, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL DECISION BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT.
The Administrative Agent agrees
that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery
of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that receipt of notice to it
(as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery
of the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees to notify the Administrative Agent in writing
(including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent
by electronic transmission and that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right
of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Credit Document in any other manner
specified in such Credit Document.
The Administrative Agent and
the Lenders shall be entitled to rely and act upon any notices (including telephonic notices, Notices of Borrowing and Letter of Credit
Requests) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. All telephonic notices to the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.
The words “execution,”,
“execute” “signed,” “signature,” and words of like import in or related to any document to be signed
in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Acceptances, amendments
or other modifications, Notices of Borrowing, waivers and consents) shall be deemed to include electronic signatures, the electronic matching
of assignment terms and contract formations on electronic platforms approved by the Administrative Agent or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary
the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly
agreed to by the Administrative Agent pursuant to procedures approved by it; provided, further, that electronic signatures
from Lenders (including assignees) delivered pursuant to procedures in effect on the site maintained by the Administrative Agent with
respect to the Facilities as of the Closing Date shall be acceptable to the Administrative Agent. For the avoidance of doubt, delivery
of an executed counterpart of a signature page by facsimile or other electronic imaging means (e.g. “.pdf” or “.tif”)
shall be effective as delivery of a manually executed counterpart, and shall not be considered an electronic signature.
13.3 No
Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent, the Collateral
Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Credit Documents shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by law.
13.4 Survival
of Representations and Warranties. All representations and warranties made hereunder, in the other Credit Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
13.5 Payment of Expenses; Indemnification.
(a) The
Borrower agrees (i) to pay or reimburse each of the Agents, the Lead Arrangers and,
the Joint Bookrunners and the 2019 Incremental Term Loan Joint Lead Arrangers for all
their reasonable and documented or invoiced out-of-pocket costs and expenses (without duplication) associated with the syndication of
the Initial Term Loan Facility , the 2019 Incremental Term Loan Facility and the Revolving Credit
Facility, as applicable, and incurred in connection with the development, preparation, execution
and delivery of, and any amendment, supplement, modification to, waiver and/or enforcement of this Agreement and the other Credit Documents
and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated
hereby and thereby, including the reasonable fees, disbursements and other charges of Davis Polk & Wardwell LLP and, to the
extent necessary, a single firm of local counsel in each appropriate local jurisdiction (which may include a single special counsel acting
in multiple jurisdictions) or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld or delayed),
and (ii) to pay or reimburse each of the Agents for all their reasonable and documented or invoiced out-of-pocket costs and expenses
incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Credit Documents and any such
other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Agents, and, to the extent
necessary, a single firm of local counsel in each appropriate local jurisdiction (which may include a single special counsel acting in
multiple jurisdictions) or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld or delayed),
and (iii) to pay, indemnify and hold harmless each Lender, each Agent, the Letter of Credit Issuer, the Swingline Lender, each Lead
Arranger and each Joint Bookrunner and their respective Related Parties (without duplication) (the “Indemnified Parties”)
from and against any and all losses, claims, damages, liabilities or penalties (collectively, “Losses”) of any kind
or nature whatsoever and the reasonable and documented and invoiced out-of-pocket expenses, joint or several, to which any such Indemnified
Party may become subject, in each case to the extent of any such Losses and related expenses, to the extent arising out of, resulting
from, or in connection with any action, claim, litigation, investigation or other proceeding (including any inquiry or investigation
of the foregoing) (any of the foregoing, a “Proceeding”) (regardless of whether such Indemnified Party is a party
thereto or whether or not such Proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any other third
person) and, subject to Section 13.5(e) to reimburse each such Indemnified Party promptly for any reasonable and documented
and invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to or defending any of the foregoing
(which in the case of legal fees shall be limited to the reasonable and documented or invoiced out-of-pocket fees, expenses, disbursements
and other charges of a single firm of counsel for all Indemnified Parties, taken as a whole and, to the extent necessary, a single firm
of local counsel in each appropriate local jurisdiction (which may include a single special counsel acting in multiple jurisdictions)
(and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower
of any existence of such conflict and in connection with the investigating, responding to or defending any of the foregoing has retained
its own counsel, of one other firm of counsel for such affected Indemnified Party)), relating to the Transactions or the execution, delivery,
enforcement, performance and administration of this Agreement, the other Credit Documents and any such other documents or the use of
the proceeds of the Loans or Letters of Credit (all the foregoing in this clause (iii), collectively, the “indemnified liabilities”);
provided that this clause (iii) shall not apply with respect to Taxes other than any Taxes that represent losses or damages
arising from any non-Tax claim; and provided, further, that the Borrower shall have no obligation hereunder to any Indemnified
Party with respect to indemnified liabilities to the extent arising from (a) the gross negligence, bad faith or willful misconduct
of such Indemnified Party or any of its Related Parties as determined in a final and non-appealable decision of a court of competent
jurisdiction, (b) a material breach of the obligations of such Indemnified Party or any of its Related Parties under the terms of
this Agreement or any other Credit Document by such Indemnified Party or any of its Related Parties as determined in a final and non-appealable
decision of a court of competent jurisdiction, (c) in addition to clause (b) above, in the case of any Proceeding initiated
by Holdings, the Borrower or any Restricted Subsidiary against the relevant Indemnified Party, a breach of the obligations of such Indemnified
Party or its Related Parties under the terms of this Agreement or any other Credit Document as determined in a final and non-appealable
decision by a court of competent jurisdiction, or (d) any Proceeding brought by any Indemnified Party against any other Indemnified
Party that does not involve an act or omission by Holdings, the Borrower or its Restricted Subsidiaries; provided that each of
the Agents, the Letter of Credit Issuer, the Swingline Lender, the Lead Arrangers and the Joint Bookrunners, in each case to the extent
fulfilling their respective roles in their capacities as such, shall remain indemnified in respect of such a Proceeding, to the extent
that none of the exceptions set forth in clause (a), (b) or (c) of the immediately preceding proviso applies to such Person
at such time. All amounts payable under this Section 13.5(a) shall be paid within 30 days after receipt by the Borrower of
written demand and an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5
shall survive repayment of the Loans and all other amounts payable hereunder and the termination of the Obligations.
(b) No
Credit Party nor any Indemnified Party shall have any liability for any special, punitive, indirect or consequential damages (including
any loss of profits, business or anticipated savings) in connection with this Agreement or any other Credit Document or arising out of
its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing shall not limit
the Borrower’s indemnification and reimbursement obligations to the Indemnified Parties pursuant to Section 13.5(a)(iii), to
the extent that such special, punitive, indirect or consequential damages are included in any claim by a third party unaffiliated with
any of the Indemnified Parties with respect to which the applicable Indemnified Party is entitled to indemnification under Section 13.5(a)(iii).
No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent that such damages have resulted from
the willful misconduct, bad faith or gross negligence of any Indemnified Party or any of its Related Parties as determined by a final
and non-appealable decision of a court of competent jurisdiction.
(c) No
Credit Party shall be liable for any settlement of any Proceeding effected without written consent of the Borrower (which consent
shall not be unreasonably withheld or delayed, it being understood that the withholding of consent due to non-satisfaction of any of
the conditions described in clauses (i) and (ii) of paragraph (d) below
(with “the Borrower” being substituted for “Indemnified Party” in each such clause) shall be deemed
reasonable), but if settled with the Borrower’s written consent or if there is a final and non-appealable judgment by a court
of competent jurisdiction for the plaintiff in any such Proceeding, each Credit Party agrees to indemnify and hold harmless each
Indemnified Party from and against any and all Losses and reasonable and documented or invoiced legal or other out-of-pocket
expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this
Section 13.5. If any Person has reimbursed any Indemnified Party for any legal or other expenses in accordance with such
request and there is a final and non-appealable determination by a court of competent jurisdiction that the Indemnified Party was
not entitled to indemnification or contribution rights with respect to such payment pursuant to this Section 13.5, then the
Indemnified Party shall promptly refund such amount.
(d) No
Credit Party shall without the prior written consent of any Indemnified Party (which consent shall not be unreasonably withheld or delayed,
it being understood that the withholding of consent due to non- satisfaction of any of the conditions described in clauses (i) and
(ii) of this sentence shall be deemed reasonable), effect any settlement of any pending or threatened Proceeding in respect of which
indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release
of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability or claims that are
the subject matter of such Proceeding and (ii) does not include any statement as to or any admission of fault, culpability, wrongdoing
or a failure to act by or on behalf of any Indemnified Party.
(e) In
case any proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified
Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any proceeding; provided, however,
that the failure to do so will not relieve the Borrower from any liability that it may have to such Indemnified Party hereunder, except
to the extent that the Borrower is materially prejudiced by such failure. Notwithstanding the above, following such notification, the
Borrower may elect in writing to assume the defense of such proceeding, and, upon such election, the Borrower will not be liable for
any legal costs subsequently incurred by such Indemnified Party (other than reasonable costs of investigation and providing evidence)
in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Party
in a timely manner, (ii) counsel provided by the Borrower reasonably determines its representation of such Indemnified Party would
present it with a conflict of interest or (iii) the Indemnified Party reasonably determines that there are actual conflicts of interest
between the Borrower and the Indemnified Party, including situations in which there may be legal defenses available to the Indemnified
Party which are different from or in addition to those available to the Borrower
13.6 Successors and Assigns; Participations and Assignments.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except that (i) except
as set forth in Section 10.3, the 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 the 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 this Section. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), Participants (to the extent
provided in Section 13.6(d)) and, to the extent expressly contemplated hereby, the Indemnified Parties) 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 13.6(b)(ii), 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 its Commitments and the Loans at the time owing to it) with
the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the
Borrower; provided that no consent of the Borrower shall be required (x) for an assignment of any Term Loan to a Lender, an
Affiliate of a Lender or an Approved Fund (unless increased costs would result therefrom) or (y) if an Event of Default under Section 11.1
or an Event of Default with respect to the Borrower under Section 11.5 has occurred and is continuing; provided, further,
that the Borrower shall be deemed to have consented to any such assignment of a Term Loan unless it shall object thereto by written notice
to the Administrative Agent within ten Business Days after having received written notice thereof; provided, further, that it shall be
understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in order for such
assignment to comply with Applicable Law, the Borrower would be required to obtain the consent of, or make any filing or registration
with, any Governmental Authority, and
(B) (i) in
the case of Term Loans or Commitments in respect of Term Loans, the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of any Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund or to any Purchasing
Borrower Party or any Affiliated Lender and (ii) in the case of Revolving Credit Commitments, Revolving Credit Loans, Additional/Replacement
Revolving Credit Commitments or Additional/Replacement Revolving Credit Loans, the Administrative Agent, the Swingline Lender and the
Letter of Credit Issuer.
Notwithstanding the foregoing or anything to the
contrary set forth herein, any assignment of any Loans to a Purchasing Borrower Party or any Affiliated Lender shall also be subject
to the requirements of Section 13.6(g).
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in the case of (i) an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) an assignment of the entire
remaining amount of the assigning Lender’s Commitments or Loans of the applicable Class, the amount of the Commitments or Loans
of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than, in the case of Revolving Credit Commitments or Revolving
Credit Loans, Additional/Replacement Revolving Credit Commitments or Additional/Replacement Revolving Credit Loans, $5,000,000 (or an
integral multiple of $1,000,000 in excess thereof), or, in the case of Initial Term Loan Commitments, 2019
Incremental Term Loan Commitments, any other Incremental Term Loan Commitments or Term Loans, $1,000,000 (or an integral multiple
of $1,000,000 in excess thereof), unless each of the Borrower and the Administrative Agent otherwise consents; provided that no
such consent of the Borrower shall be required if an Event of Default under Section 11.1 or Section 11.5 with respect to the
Borrower has occurred and is continuing; provided, further, that contemporaneous assignments to a single assignee made
by Affiliated Lenders or related Approved Funds or by a single assignor to related Approved Funds shall be aggregated for purposes of
meeting the minimum assignment amount requirements stated above;
(B) subject
to the terms of Section 13.7(c), the parties to each assignment shall (x) execute and deliver to the Administrative Agent an
Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent or (y) if previously agreed
with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Acceptance, in each case, together
with a processing fee of $3,500 (it being understood that such recordation fee shall not apply to any assignment by any of the Lead Arrangers,
Joint Bookrunners or any of their respective Affiliates hereunder in connection with the primary syndication of the Initial Term Loan
Facility); provided that the Administrative Agent may, in its sole discretion, elect to waive or reduce such processing and recordation
fee in the case of any assignment, including assignments effected pursuant to the provisions of Section 13.7;
(C) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax form required by Section 5.4 and an administrative
questionnaire in a form approved by the Administrative Agent in which the assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public information about the Credit Parties and their Related Parties or their
respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance
procedures and Applicable Laws, including Federal and state securities laws; and
(D) each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned, except that this clause (D) shall not prohibit any Lender from
assigning all or a portion of its rights and obligations among separate tranches of Loans (if any) on a non-pro rata basis.
Notwithstanding the foregoing
or anything to the contrary set forth herein (i) any assignment of any Loans or Commitments to a Purchasing Borrower Party or an
Affiliated Lender shall also be subject to the requirements set forth in Section 13.6(g) and (ii) no natural person may
be an Eligible Assignee with respect to any Loans or Commitments.
For the purpose of this Section 13.6(b), the term “Approved
Fund” has the following meaning:
“Approved
Fund” means any Person (other than a natural person) that is primarily engaged or advises funds or other investment vehicles
that are engaged in making, purchasing, holding or investing in commercial loans, bonds and similar extensions of credit or securities
in the ordinary course of business and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender
or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
(iii) Subject
to acceptance and recording thereof pursuant to Section 13.6(b)(vi), from and after the effective date specified in each Assignment
and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party
hereto, but shall continue to be entitled to the benefits and subject to the requirements of Sections 2.10, 2.11, 5.4 and 13.5); provided
that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a
waiver or release of any claim of any other party hereto against such Defaulting Lender arising from such Lender’s having been a
Defaulting Lender.Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with this Section 13.6 shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 13.6(d).
(iv) By
executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to 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 its Initial Term Loan
Commitment, 2019 Incremental Term Loan Commitments, any other Incremental Term
Loan Commitment, Revolving Credit Commitment and Additional/Replacement Revolving Credit Commitment, and the outstanding balances of
its Loans, in each case without giving pro forma effect to assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (B) except as set forth in (A) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Credit Document or any other instrument or document furnished pursuant hereto, or the financial condition of Holdings, the
Borrower or any Subsidiary or the performance or observance by Holdings, the Borrower or any Subsidiary of any of its obligations under
this Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto; (C) such assignee represents
and warrants that (x) it is legally authorized to enter into such Assignment and Acceptance and (y) to the extent that such
assignee has received, upon its request, a list of Disqualified Lenders, it is not a Disqualified Lender or an Affiliate of a Disqualified
Lender; (D) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 8.9 or delivered pursuant to Section 9.1 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (E) such assignee
will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Credit Documents as are
delegated to the Administrative Agent and the Collateral Agent, respectively, 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.
(v) The
Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s
Office in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the Loans (and interest thereon) and any payment made by the
Letter of Credit Issuer under any Letter of Credit owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).
Further, the Register shall contain the name and address of the Administrative Agent and the lending office through which each such Person
acts under this Agreement. The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative
Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register,
as in effect at the close of business on the preceding Business Day, shall be available for inspection by (x) the Borrower and each
Letter of Credit Issuer, (y) any Agent and (z) any Lender (solely with respect to its own outstanding Loans and Commitments),
in each case, at any reasonable time and from time to time upon reasonable prior notice.
(vi) Upon
its receipt of and, if required, consent to, a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee,
the assignee’s completed administrative questionnaire and any tax form required by Section 5.4 (unless the assignee shall already
be a Lender hereunder) and any written consent to such assignment required by Section 13.6(b)(i), the Administrative Agent shall
promptly accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless and until it has been recorded in the Register as provided in this paragraph.
(c) Notwithstanding
any provision to the contrary, any Lender may assign to one or more wholly owned special purpose funding vehicles (each, an
“SPV”) all or any portion of its funded Loans (without the corresponding Commitment), without the consent of any
Person or the payment of a fee, by execution of a written assignment agreement in a form agreed to by such assigning Lender and such
SPV, and may grant any such SPV the option, in such SPV’s sole discretion, to provide the Borrower all or any part of any
Loans that such assigning Lender would otherwise be obligated to make pursuant to this Agreement. Such SPVs shall have all the
rights which a Lender making or holding such Loans would have under this Agreement, but no obligations. Any such assigning Lender
shall remain liable for all its original obligations under this Agreement, including its Commitment (although the unused portion
thereof shall be reduced by the principal amount of any Loans held by an SPV). Notwithstanding such assignment, the Administrative
Agent and the Borrower may deliver notices to such assigning Lender (as agent for the SPV) and not separately to the SPV unless the
Administrative Agent and the Borrower are requested in writing by the SPV to deliver such notices separately to it. Notwithstanding
anything herein to the contrary, (i) neither the grant to the SPV nor the exercise by any SPV of such option will increase the
costs or expenses or otherwise change the obligations of the Borrower under this Agreement and the other Credit Documents, except,
in the case of Sections 2.10, 2.11, 3.5 or 5.4, where (A) the increase or change results from a change in any Applicable Law
after the SPV becomes an SPV and the assigning Lender notifies the Borrower in writing of such increase or change no later than
ninety (90) days after such change in Applicable Law becomes effective or (B) the grant was made with the Borrower’s
prior written consent, (ii) the assigning Lender shall for all purposes, including the approval of any amendment, waiver or
other modification of any provision of any Credit Document and the receipt of any notices provided by the Administrative Agent and
the Borrower (as agent for the SPV) remain the Lender of record hereunder and (iii) no SPV shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall remain with the assigning Lender). The Borrower
shall, at the request of any such assigning Lender, execute and deliver to such Person as such assigning Lender may designate, a
Note, substantially in the form of Exhibit F-1 or F-2, in the amount of such assigning Lender’s original Note to evidence
the Loans of such assigning Lender and related SPV.
(d) (i) Any
Lender may, without the consent of the Borrower, the Administrative Agent, the Collateral Agent, any Letter of Credit Issuer or the Swingline
Lender, sell participations to one or more banks or other entities, other than to any Disqualified Lender (to the extent that the list
of Disqualified Lenders has been made available to the Lenders), Holdings, the Borrower or any of its Subsidiaries, (each, 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
Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer 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 a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this Agreement or any other Credit Document; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 13.1 that affects such Participant. Subject to paragraph (d)(ii) of
this Section, the Borrower agrees that each Participant shall be entitled to the benefits (and subject to the requirements) of Sections
2.10, 2.11, 5.4 and 13.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.6(b).
To the extent permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section 13.8(b) as though
it were a Lender; provided such Participant agrees to be subject to Section 13.8(a) as though it were a Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under Sections 2.10, 2.11, 3.5 or 5.4 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such Participant, unless (A) the
entitlement to a greater payment resulted from a change in any Applicable Law after the Participant became a Participant and the
participating Lender notifies the Borrower in writing of such entitlement to a greater payment no later than ninety (90) days after
such change in Applicable Law becomes effective or (B) the sale of the participation to such Participant is made with the
Borrower’s prior written consent. Each Lender having sold a participation in any of its Obligations, acting as a non-fiduciary
agent of the Borrower solely for this purpose, shall establish and maintain at its address a record of ownership, in which such
Lender shall register by book entry (A) the name and address of each such Participant (and each change thereto, whether by
assignment or otherwise) and (B) the rights, interest or obligation of each such Participant in any Obligation, in any
Commitment and in any right to receive any interest or principal payment hereunder (such register, a “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of its Participant
Register (including the identity of any Participant or any information relating to a Participant’s interest in any Obligation
or Commitment) to any Person except to the extent that such disclosure is necessary to establish that such Obligation or Commitment
is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant
Register shall be conclusive, absent manifest error, and the parties shall treat the Person listed in the Participant Register as
the Participant for all purposes of this Agreement, notwithstanding notice to the contrary.
(e) Any
Lender may, without the consent of the Borrower, the Collateral Agent or the Administrative Agent, at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank or any other central bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. In order to facilitate
such pledge or assignment, the Borrower hereby agrees that, upon request of any Lender at any time and from time to time after the Borrower
has made its initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower’s own expense, a Note evidencing
the Loans owing to such Lender.
(f) Subject
to Section 13.16, the Borrower authorizes each Lender to disclose to any Participant, secured creditor of such Lender or assignee
(each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s possession
concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower and its Affiliates pursuant
to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower and its Affiliates in connection with such
Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement.
(g) (i) Notwithstanding
anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of its Term Loans to any Purchasing
Borrower Party or any Affiliated Lender in accordance with Section 13.6(b) (which assignment, if to a Purchasing Borrower Party,
will not, except for purposes of making the calculations set forth in Section 5.2(a)(ii), constitute a prepayment of Loans for any
purposes of this Agreement and the other Credit Documents); provided that:
(A) with
respect to any assignment to a Purchasing Borrower Party, no Event of Default has occurred or is continuing or would result therefrom;
(B) with
respect to any such assignment to a Purchasing Borrower Party, either (x) such Purchasing Borrower Party shall offer to all Lenders
within any Class of Term Loans (but not, for the avoidance of doubt, to every Class) to buy the Term Loans within such Class on
a pro rata basis based on the then outstanding principal amount of all Term Loans of such Class, pursuant to procedures to be reasonably
agreed between the Administrative Agent and the Borrower or (y) such assignment shall be effected pursuant to an open market purchase;
(C) the
assigning Lender and Purchasing Borrower Party or Non-Debt Fund Affiliate purchasing such Lender’s Term Loans, as applicable, shall
execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit I or such other form
as shall be reasonably acceptable to the Borrower and the Administrative Agent (an “Affiliated Lender Assignment and Acceptance”)
in lieu of an Assignment and Acceptance;
(D) for
the avoidance of doubt, Lenders shall not be permitted to assign Revolving Credit Commitments, Revolving Credit Loans, Additional/Replacement
Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments, Extended Revolving Credit Commitments or Extended Revolving
Credit Loans to any Purchasing Borrower Party or any Affiliated Lender;
(E) any
Term Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness of such assignment
and will thereafter no longer be outstanding for any purpose hereunder;
(F) no
Purchasing Borrower Party may use the proceeds from Revolving Credit Loans, Extended Revolving Credit Loans or Swingline Loans or Additional/Replacement
Revolving Credit Loans (or any other revolving credit facility that is effective in reliance on Section 10.1(a) or Section 10.1(u))
to purchase any Term Loans;
(G) no
Term Loan may be assigned to a Non-Debt Fund Affiliate pursuant to this Section 13.6(g) if, after giving pro forma effect to
such assignment, Non-Debt Fund Affiliates in the aggregate would own in excess of 25% of the Term Loans of any Class then outstanding
(determined as of the time of such purchase);
(H) any
purchases or assignments of Loans by a Purchasing Borrower Party or a Non-Debt Fund Affiliate made through “dutch auctions”
shall (i) be conducted pursuant to procedures to be established by the applicable “auction agent” that are consistent
with this Section 13.6(g) and are otherwise reasonably acceptable to the Borrower and (ii) require that such Person clearly
identify itself as a Purchasing Borrower Party or an Affiliated Lender, as the case may be, in any assignment and acceptance agreement
executed in connection with such purchases or assignments; and
(I) with
respect to any assignment to a Purchasing Borrower Party, the assigning Lender waives any right to bring actions (whether in contract,
tort or otherwise) against the Administrative Agent in its capacity as such or to challenge the Administrative Agent’s attorney-client
privilege.
(ii) Notwithstanding
anything to the contrary in this Agreement, no Non-Debt Fund Affiliate shall have any right to (A) attend (including by telephone)
any meeting or discussions (or portion thereof) among the Administrative Agent, the Collateral Agent or any Lender to which representatives
of the Credit Parties are not invited, (B) receive any information or material prepared by the Administrative Agent, the Collateral
Agent or any Lender or any communication by or among the Administrative Agent, the Collateral Agent and/or one or more Lenders, except
to the extent such information or materials have been made available to any Credit Party or its representatives (and in any case, other
than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to
Lenders pursuant to Sections 2, 3, 4 and 5 of this Agreement) or (C) make or bring (or participate in, other than as a passive participant
in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent or the Collateral
Agent with respect to any duties or obligations or alleged duties or obligations of such Agent under the Credit Documents or to challenge
such Agent’s attorney-client privilege.
(iii) By
its acquisition of Term Loans, a Non-Debt Fund Affiliate shall be deemed to have acknowledged and agreed that if a case under the Bankruptcy
Code is commenced against any Credit Party, such Credit Party shall seek (and each Non-Debt Fund Affiliate shall consent) to provide that
the vote of any Non-Debt Fund Affiliate (in its capacity as a Lender) with respect to any plan of reorganization or liquidation of such
Credit Party shall not be counted except that such Non-Debt Fund Affiliate’s vote (in its capacity as a Lender) may be counted to
the extent any such plan of reorganization or liquidation proposes to treat the Obligations held by such Non-Debt Fund Affiliate in a
manner that is less favorable to such Non-Debt Fund Affiliate than the proposed treatment of similar Obligations held by Lenders that
are not Affiliates of the Borrower; each Non-Debt Fund Affiliate hereby irrevocably appoints the Administrative Agent (such appointment
being coupled with an interest) as such Non-Debt Fund Affiliate’s attorney-in-fact, with full authority in the place and stead of
such Non-Debt Fund Affiliate and in the name of such Non-Debt Fund Affiliate (solely in respect of Loans and participations therein and
not in respect of any other claim or status such Non-Debt Fund Affiliate may otherwise have) from time to time in the Administrative Agent’s
discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the
provisions of this clause (iii);
(iv) Any
Lender may assign all or a portion of the Term Loans of any Class (but not any Revolving Credit Commitments, Revolving Credit Loans,
Additional/Replacement Revolving Credit Loans, Additional/Replacement Revolving Credit Commitments, Extended Revolving Credit Loans or
Extended Revolving Credit Commitments) held by it to a Debt Fund Affiliate in accordance with Section 13.6(b).
(h) Notwithstanding
anything in Section 13.1 or the definition of “Required Lenders” to the contrary, for purposes of determining
whether the Required Lenders or any other requisite Class vote required by this Agreement have (i) consented (or not consented)
to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Credit Document or any departure
by any Credit Party therefrom, (ii) otherwise acted on any matter related to any Credit Document, or (iii) directed or required
the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect
to or under any Credit Document, (A) all Term Loans held by any Non-Debt Fund Affiliate shall be deemed to be not outstanding for
all purposes of calculating whether the Required Lenders (or requisite vote of any Class of Lenders) have taken any actions and (B) the
aggregate amount of Term Loans held by Debt Fund Affiliates will be excluded to the extent in excess of 49.9% of the amount required to
constitute “Required Lenders” (including in respect of a specific Class) (any such excess amount shall be deemed to be not
outstanding on a pro rata basis among all Debt Fund Affiliates).
(i) Upon
any contribution of Term Loans to the Borrower or any Restricted Subsidiary and upon any purchase of Term Loans by a Purchasing Borrower
Party, (A) the aggregate principal amount (calculated on the face amount thereof) of such Term Loans shall automatically be cancelled
and retired or extinguished by the Borrower on the date of such contribution or purchase (and, if requested by the Administrative Agent,
with respect to a contribution of Term Loans, any applicable contributing Lender shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant
to which the respective Lender assigns its interest in such Loans to the Borrower for immediate cancellation) and (B) the Administrative
Agent shall record such cancellation or retirement or extinguishment in the Register.
(j) The
Administrative Agent shall not (a) be required to serve as the auction agent for, or have any other obligations to participate in
(other than mechanical administrative duties), or facilitate any, “dutch auction” unless it is reasonably satisfied
with the terms and restrictions of such auction or (b) have any obligation to participate in, arrange, sell or otherwise facilitate,
and will have no liability in connection with, any open market purchases by any Purchasing Borrower Party.
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13.7
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Replacements of Lenders Under Certain Circumstances.
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(a) The
Borrower, at its sole expense, shall be permitted to replace any Lender (or any Participant) that (i) requests reimbursement
for amounts owing pursuant to Section 2.10, 2.11, 3.5 or 5.4, (ii) is affected in the manner described in
Section 2.10(a)(iii) and as a result thereof any of the actions described in such Section is required to be taken or
(iii) becomes a Defaulting Lender, with a replacement bank, financial institution or other institutional lender or investor
that is an Eligible Assignee; provided that (A) such replacement does not conflict with any Applicable Law, (B) no
Event of Default shall have occurred and be continuing at the time of such replacement, (C) the Borrower shall repay (or such
replacement bank, financial institution or other institutional lender or investor shall purchase, at par) all Loans and pay all
other amounts (other than any disputed amounts) owing to such replaced Lender hereunder (including, for the avoidance of doubt,
pursuant to Section 2.10, 2.11, 3.5 or 5.4, as the case may be) and under the other Credit Documents prior to the date of
replacement of such Lender, (D) such replacement bank, financial institution or other institutional lender or investor (if not
already a Lender) and the terms and conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent,
(E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 13.6 and
(F) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any
other Lender shall have against the replaced Lender or that the replaced Lender shall have against the Borrower and the other
parties for indemnity, contribution, payment of disputed and other unpaid amounts and otherwise.
(b) If
any Lender (such Lender a “Non-Consenting Lender”) has failed to consent to a proposed amendment, modification,
supplement, waiver, discharge or termination, which pursuant to the terms of Section 13.1 requires the consent of all of the
Lenders affected or each Lender and with respect to which the Required Lenders shall have granted their consent, then, provided
no Event of Default has occurred and is continuing, the Borrower shall have the right (unless such Non-Consenting Lender grants such
consent), at its own cost and expense, to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its
Loans and Commitments to one or more Eligible Assignees reasonably acceptable to the Administrative Agent; provided that
(i) all Obligations of the Borrower under this Agreement owing to such Non-Consenting Lender being replaced shall be paid in
full (including any applicable premium under Section 5.1(b)) to such Non-Consenting Lender concurrently with such assignment,
(ii) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal
amount thereof plus accrued and unpaid interest thereon, (iii) the replacement Lender shall consent to the proposed
amendment, modification, supplement, waiver, discharge or termination, (iv) all Lenders required to have consented to such
proposed amendment, modification, supplement, waiver, discharge or termination (other than Non-Consenting Lenders which are
simultaneously replaced) shall have consented thereto, and (v) the assignment of such Non-Consenting Lenders Loans to one or
more Eligible Assignees does not otherwise conflict with Applicable Law. In connection with any such assignment, the Borrower, the
Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 13.6(a).
(c) Notwithstanding
anything herein to the contrary, each party hereto agrees that any assignment pursuant to the terms of this Section 13.7 may be effected
pursuant to an Assignment and Acceptance executed by the Borrower, the Administrative Agent and the assignee and that the Lender making
such assignment need not be a party thereto.
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13.8
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Adjustments; Set-off.
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(a) Except
as otherwise set forth herein, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or
part of the Loans of any Class and/or the participations in letter of credit obligations or swingline loans held by it, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred
to in Section 11.5, or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if
any, in respect of such other Lender’s Loans of such Class or participations in letter of credit obligations or swingline loans,
as applicable, such Benefited Lender shall (i) notify the Administrative Agent of such fact, and (ii) purchase for cash at face
value from the other Lenders a participating interest in such portion of each such other Lender’s Loans of such Class or participations
in letter of credit obligations or swingline loans, as applicable, or shall provide such other Lenders with the benefits of any such collateral,
or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably in accordance with the aggregate principal of their respective Loans of the applicable Class or participations
in letter of credit obligations or swingline loans, as applicable; provided that, (A) if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest and (B) the provisions of this paragraph shall not be construed to
apply to (x) any payment made by Holdings, the Borrower or any other Credit Party pursuant to and in accordance with the express
terms of this Agreement and the other Credit Documents, (y) any payment obtained by a Lender as consideration for the assignment
of or sale of a participation in any of its Loans, Commitments or participations in a Letter of Credit Obligations or Swingline Loans
to any assignee or participant or (z) any disproportionate payment obtained by a Lender of any Class as a result of the extension
by Lenders of the maturity date or expiration date of some but not all Loans or Commitments of that Class or any increase in the
Applicable Margin (or other pricing term, including any fee, discount or premium) in respect of Loans or Commitments of Lenders that have
consented to any such extension to the extent such transaction is permitted hereunder. Each Credit Party consents to the foregoing and
agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Credit Party rights of set-off and counterclaim with respect to such participation as fully as
if such Lender were a direct creditor of such Credit Party in the amount of such participation.
(b) After
the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by
Applicable Law, each Lender, the Swingline Lender and each Letter of Credit Issuer shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent permitted by Applicable Law, upon any amount becoming
due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise) to setoff and appropriate
and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the
Borrower, as the case may be; provided that, in the event that any Defaulting Lender shall exercise any such right of
set-off, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in
accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from
its other funds and deemed held in trust for the benefit of the Administrative Agent, the Swingline Lender, each Letter of Credit
Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing
in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of set-off. Each Lender,
the Swingline Lender and each Letter of Credit Issuer agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Person; provided that the failure to give such notice shall not affect the validity
of such set-off and application. Notwithstanding anything in this Section 13.8(b) to the contrary, no Lender, no Swingline
Lender and no Letter Credit Issuer will exercise, or attempt to exercise, any right of set off, banker’s lien or the like
against any deposit account or property of the Borrower or any other credit party held or maintained by such Lender, Swingline
Lender or Letter of Credit Issuer, as applicable, in each case to the extent the deposits or other proceeds of such exercise, or
attempt to exercise, any right of set off, banker’s lien or the like are, or are intended to be or are otherwise are held out
to be applied to the Obligations hereunder or otherwise secured by the Collateral, without the prior written consent of the
Collateral Agent.
13.9 Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile
or other electronic transmission (i.e., a “pdf” or “tif”)), and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with
Holdings, the Borrower and each Agent.
13.10 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13.11 Integration.
This Agreement and the other Credit Documents represent the agreement of Holdings, the Borrower, the Administrative Agent, the Collateral
Agent, the Letter of Credit Issuer and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Collateral Agent, the Administrative Agent, the Letter of Credit Issuer or any Lender relative to
subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents.
13.12 GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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13.13
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Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
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(a) submits
for itself and its property in any legal action or proceeding relating to this Agreement and the other Credit Documents to which it is
a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of
the State of New York located in the County of New York, the courts of the United States of America for the Southern District of New York
and appellate courts from any thereof;
(b) consents
that any such action or proceeding shall be brought in such courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the applicable party at its respective address set forth in
Section 13.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in
this Section 13.13 any special, exemplary, punitive or consequential damages.
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13.14
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Acknowledgments. Each of Holdings and the Borrower hereby acknowledges that:
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(a) it
has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Credit Documents;
(b) none
of the Administrative Agent, the Collateral Agent, any Lead Arranger, any Joint Bookrunner or any Lender has any fiduciary relationship
with or duty to Holdings or the Borrower arising out of or in connection with this Agreement or any of the other Credit Documents, and
the relationship between the Administrative Agent, the Collateral Agent and the Lenders, on one hand, and Holdings or the Borrower on
the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no
Joint Venture is created hereby or by the other Credit Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among Holdings, the Borrower and the Lenders.
13.15 WAIVERS
OF JURY TRIAL. HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, EACH LETTER OF CREDIT ISSUER, THE SWINGLINE
LENDER AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16 Confidentiality.
Each Agent, each Letter of Credit Issuer, the Swingline Lender and each Lender shall hold all non-public information furnished by or
on behalf of Holdings and the Borrower and their Subsidiaries in connection with such Lender’s evaluation of whether to become
a Lender hereunder or obtained by such Lender, such Agent or the Letter of Credit Issuer pursuant to the requirements of this
Agreement (“Confidential Information”) confidential in accordance with its customary procedure for handling
confidential information of this nature and, in the case of a Lender that is a bank, in accordance with safe and sound banking
practices and in any event may make disclosure (a) as required or requested by any Governmental Authority or representative
thereof or regulatory authority having jurisdiction over it (including any self-regulatory authority or representative thereof) or
pursuant to legal process or otherwise as required by Applicable Law based on the reasonable advice of counsel, (b) to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations
under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other
transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments
hereunder; provided that, in the case of each of clauses (i) and (ii), the relevant Person is advised of and agrees to
be bound by the provisions of this Section 13.16 or other provisions at least as restrictive as this Section 13.16,
(c) to such Lender’s or such Agent’s or the Letter of Credit Issuer’s trustees, attorneys, professional
advisors or independent auditors or Related Parties, in each case who need to know such information in connection with the
administration of the Credit Documents and are informed of the confidential nature of such information or are subject to customary
confidentiality obligations of professional practice or who agree in writing to be bound by the terms of this paragraph (or language
substantially similar to this paragraph) (and to the extent a person’s compliance is within the control of an Agent, Letter of
Credit Issuer or Lender, such Agent, Letter of Credit Issuer or Lender will be responsible for such compliance), (d) with the
written consent of the Borrower, (e) to the extent such Confidential Information (i) becomes publicly available other than
as a result of a breach of this Section 13.16, (ii) becomes available to any Agent, any Lender, the Letter of Credit
Issuer or any of their respective Affiliates on a non-confidential basis from a source that is not subject to these confidentiality
provisions or (iii) to the extent such information is independently developed by such Agent, Lender, Letter of Credit Issuer,
or Affiliate without the use of confidential information in breach of this Section 13.16 or (f) for purposes of
establishing a “due diligence” defense; provided that unless specifically prohibited by Applicable Law or court
order, each Lender, each Agent and the Letter of Credit Issuer shall notify the Borrower of any request by any Governmental
Authority or representative thereof (other than any such request in connection with an audit or examination of the financial
condition of such Lender, such Agent or the Letter of Credit Issuer by such Governmental Authority) for disclosure of any such
non-public information prior to disclosure of such information; and provided, further, that, in no event shall any
Lender, any Agent or the Letter of Credit Issuer be obligated or required to return any materials furnished by Holdings, the
Borrower or any Subsidiary of the Borrower. Each Lender, each Agent and the Letter of Credit Issuer agrees that it will not provide
to prospective Transferees, pledgees referred to in Section 13.16 or to prospective direct or indirect contractual
counterparties under Hedging Agreements to be entered into in connection with Loans made hereunder any of the Confidential
Information unless such Person is advised of and agrees to be bound by the provisions of this Section 13.16. The
confidentiality provisions contained herein shall not prohibit disclosures to any trustee, administrator, collateral manager,
servicer, backup servicer, lender, rating agency or secured party of any SPV in connection with the evaluation, administration,
servicing of, or the reporting on, the assets or securitization activities of such SPV; provided that any such Person is
advised of and agrees to be bound by the provisions of this Section 13.16.
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13.17
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Release of Collateral and Guarantee Obligations; Subordination of Liens.
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(a) The
Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any Collateral shall be automatically
released (i) in full, as set forth in clause (b) below, (ii) upon the sale, transfer or other Disposition (including any
disposition by means of a distribution or Restricted Payment) of such Collateral (including as part of or in connection with any other
sale, transfer or other Disposition permitted hereunder) to any Person other than another Credit Party, to the extent such sale, transfer
or other Disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate
to that effect provided to it by any Credit Party upon its reasonable request without further inquiry), (iii) to the extent such
Collateral is comprised of property leased to a Credit Party by a Person that is not a Credit Party, upon termination or expiration of
such lease, (iv) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other
percentage of the Lenders whose consent may be required in accordance with Section 13.1), (v) to the extent the property constituting
such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee (in accordance
with the second succeeding sentence and Section 25 of the Guarantee), (vi) as required by the Collateral Agent to effect any
sale, transfer or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the
Security Documents and (vii) to the extent such Collateral otherwise becomes Excluded Capital Stock or Excluded Property. Any such
release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those being released) upon (or
Obligations (other than those being released) of the Credit Parties in respect of) all interests retained by the Credit Parties, including
the proceeds of any disposition, all of which shall continue to constitute part of the Collateral except to the extent otherwise released
in accordance with the provisions of the Credit Documents. Additionally, the Lenders hereby irrevocably agree that the Guarantors shall
be released from the Guarantee upon consummation of any transaction permitted hereunder resulting in such Subsidiary ceasing to constitute
a Restricted Subsidiary, or otherwise becoming an Excluded Subsidiary (including in connection with any designation of an Unrestricted
Subsidiary) (provided that
a Guarantor shall not be released from the Guarantee in connection with a de minimis transfer of equity interests in such Guarantor if
there is no bona fide business purpose for such transfer of equity and such transfer of equity is intended solely to obtain a release
of the Guarantee, in each case as determined in good faith by the Borrower), or, in the case of
a Previous Holdings, in accordance with the conditions set forth in the definition of Holdings. The Lenders hereby authorize the Administrative
Agent and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, and agreements necessary or desirable
to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without
the further consent or joinder of any Lender. Any representation, warranty or covenant contained in any Credit Document relating to any
such Collateral or Guarantor shall no longer be deemed to be repeated.
(b) Notwithstanding
anything to the contrary contained herein or any other Credit Document, when all Obligations (other than (i) Hedging
Obligations in respect of any Secured Hedging Agreements, (ii) Cash Management Obligations in respect of any Secured Cash
Management Agreements and (iii) any contingent obligations or contingent indemnification obligations not then due and payable)
have been paid in full, all Commitments have terminated or expired and no Letter of Credit shall be outstanding that is not Cash
Collateralized or back-stopped on terms reasonably satisfactory to the Letter of Credit Issuer, upon request of the Borrower, the
Administrative Agent and/or the Collateral Agent, as applicable, shall (without notice to, or vote or consent of, any Secured Party)
take such actions as shall be required to release its security interest in all Collateral, and to release all obligations under any
Credit Document, whether or not on the date of such release there may be any (i) Hedging Obligations in respect of any Secured
Hedging Agreements, (ii) Cash Management Obligations in respect of any Secured Cash Management Agreements and (iii) any
contingent obligations or contingent indemnification obligations not then due and payable. Any such release of Obligations shall be
deemed subject to the provision that such Obligations shall be reinstated if after such release any portion of any payment in
respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payment had not been made.
(c) Notwithstanding
anything to the contrary contained herein or in any other Credit Document, upon reasonable request of the Borrower in connection with
any Liens permitted by the Credit Documents, the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party)
take such actions as shall be required to give effect to (by means of an acknowledgment reasonably satisfactory to the Administrative
Agent), or to subordinate the Lien on any Collateral to, any Lien permitted under Sections 10.2(c), (e) (solely as it relates to
clauses (c) and (f) of Section 10.2), (f), (l), (m), (n), (o), (q), (r), (s), (v), (w), (x), (y), (aa), (ff) and clauses
(d), (e), (f), (g), (i) and (n) of the definition of “Permitted Encumbrances.” In addition, notwithstanding
anything to the contrary contained herein or in any other Credit Document, upon reasonable request of the Borrower, the Administrative
Agent and the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party) enter into subordination or intercreditor
agreements with respect to Indebtedness to the extent the Administrative Agent or Collateral Agent is otherwise contemplated herein as
a party to such subordination or intercreditor agreements, in each case to the extent consistent with the provisions of Section 12.15.
(d) Notwithstanding
the foregoing or anything in the Credit Documents to the contrary, at the direction of the Required Lenders, the Administrative Agent
may, in exercising remedies, take any and all necessary and appropriate action to effectuate a credit bid of all Loans (or any lesser
amount thereof) for the Credit Parties’ assets in a bankruptcy, foreclosure or other similar proceeding, forbear from exercising
remedies upon an Event of Default, or in a proceeding under any Debtor Relief Law, enter into a settlement agreement on behalf of all
Lenders.
13.18 USA
PATRIOT ACT. Each Lender hereby notifies the Borrower and each Credit Party that pursuant to the requirements of the PATRIOT Act,
it is required to obtain, verify and record information that identifies the Borrower and each Credit Party, which information includes
the name and address of the Borrower and each Credit Party and other information that will allow such Lender to identify the Borrower
and Credit Parties in accordance with the PATRIOT Act.
13.19 Legend.
THE TERM LOANS WILL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE
DATE AND YIELD TO MATURITY OF THESE TERM LOANS MAY BE OBTAINED BY WRITING TO THE BORROWER AT THE ADDRESS SET FORTH IN SECTION 13.2.
13.20 Payments
Set Aside. To the extent that any payment by or on behalf of Holdings or the Borrower is made to any Agent or any Lender, or any Agent
or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees
to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from
time to time in effect.
13.21 Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial
Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion
powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:the application of
any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to
it by any party hereto that is an EEA Financial Institution; and
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(b)
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the effects of any Bail-in Action on any such liability, including, if applicable:
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(i)
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a reduction in full or in part or cancellation of any such liability;
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(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA 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 Credit
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 EEA Resolution
Authority.
13.22 Execution
by Target, Amplify and Subsidiaries. Notwithstanding any other provision contained herein, the Target, Amplify, Surviving Company
and the Subsidiaries of the Target, Amplify and Surviving Company shall have no rights or obligations under any of the Credit Documents
until the consummation of the Mergers, and any covenants hereunder relating to the Target, Amplify and the Subsidiaries of the Target
and Amplify in any Credit Document shall not become effective until such time. Upon consummation of the Mergers, the signature pages to
this Agreement and each other Credit Documents executed on behalf of the Target, Amplify and any of their respective Subsidiaries shall
be deemed released.
13.23 Acknowledgement Regarding Any Supported QFCs.
(a) To
the extent that the Credit Documents provide support, through a guarantee or otherwise, for Hedging
Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”,
and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect
to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance
Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”)
in respect of such Supported QFC and QFC Credit Support (with the provisions
below applicable notwithstanding that the Credit 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).
(b) 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
Credit 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 Credit Documents were governed by the laws of the United States or a state of the United
States. Without limitation of the foregoing, it is understood and
agreed that rights and remedies of the parties with respect to a Defaulting
Lender shall in no event affect the rights of any Covered Party with respect to a
Supported QFC or any QFC Credit Support.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each of the parties hereto
has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
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CRACKLE
PURCHASER CORP., as Holdings
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO CREDIT AGREEMENT]
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CRACKLE
MERGER SUB I CORP., as initial Borrower prior to the consummation of the Amplify Merger
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By:
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Name:
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Title:
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WIREPATH
LLC, after giving effect to the Amplify Merger, as Borrower
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO CREDIT
AGREEMENT]
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UBS AG, STAMFORD BRANCH
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as Administrative Agent, Collateral Agent, Letter of Credit
Issuer and Lender
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By:
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Name:
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Title:
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SUNTRUST BANK
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as Letter of Credit Issuer and Lender
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO CREDIT
AGREEMENT]
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[LENDERS]
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO CREDIT
AGREEMENT]
Exhibit B
Form of Solvency Certificate
I, the undersigned, the Chief
Financial Officer of Wirepath LLC, a Delaware limited liability company (the “Borrower”), in that capacity only
and not in my individual capacity (and without personal liability), do hereby certify as of the date hereof, and based upon facts and
circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after
the date hereof), that:
1. This
certificate is furnished to the Administrative Agent and the 2019 Incremental Term Lenders pursuant to
Section 10(f)(vi) of the Third Incremental Agreement, dated as of August 1, 2019, among the Borrower, Holdings, the
Guarantors party thereto, the 2019 Incremental Term Lenders and the Administrative Agent (the “Incremental
Agreement”). Unless otherwise defined herein, capitalized terms used in this certificate shall have the meanings set
forth in the Incremental Agreement (including those incorporated by reference).
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2.
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For purposes of this certificate, the terms below shall have the following definitions:
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The amount at which the assets
(both tangible and intangible), in their entirety, of the Borrower and its Subsidiaries taken as a whole would change hands between a
willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant
facts, with neither being under any compulsion to act.
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(b)
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“Present Fair Salable Value”
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The amount that could be obtained
by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the Borrower and its
Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under
present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
The recorded liabilities (including
contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Subsidiaries taken as a whole, as of the
date hereof after giving effect to the consummation of the 2019 Transactions (including the execution and delivery of the Incremental
Agreement, the making of the loans under such Incremental Agreement and the use of proceeds of such loans on the date hereof), determined
in accordance with GAAP consistently applied.
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(d)
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“Identified Contingent Liabilities”
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The maximum estimated
amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured
risks and other contingent liabilities of the Borrower and its Subsidiaries taken as a whole after giving effect to the 2019
Transactions (including the execution and delivery of the Incremental Agreement, the making of the loans under such Incremental
Agreement and the use of proceeds of such loans on the date hereof) (including all fees and expenses related thereto but exclusive
of such contingent liabilities to the extent reflected in Stated Liabilities), as identified and explained in terms of their nature
and estimated magnitude by responsible officers of the Borrower.
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(e)
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“Can pay their Stated Liabilities and Identified Contingent Liabilities as they mature”
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The Borrower and its Subsidiaries
taken as a whole after giving effect to the 2019 Transactions (including the execution and delivery of the Incremental Agreement, the
making of the loans under such Incremental Agreement and the use of proceeds of such loans on the date hereof) have sufficient assets
and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the
case of contingent liabilities) otherwise become payable.
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(f)
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“Do not have Unreasonably Small Capital”
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The Borrower and its Subsidiaries
taken as a whole after giving effect to the 2019 Transactions (including the execution and delivery of the Incremental Agreement, the
making of the loans under such Incremental Agreement and the use of proceeds of such loans on the date hereof) have sufficient capital
to ensure that it is a going concern.
3. For
purposes of this certificate, I, or officers of the Borrower under my direction and supervision, have performed the following procedures
as of and for the periods set forth below.
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(a)
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I have reviewed the financial statements referred to in Section 10(g) of the Incremental Agreement.
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(b)
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I have knowledge of and have reviewed to my satisfaction the Incremental Agreement.
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(c)
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As chief financial officer of the Borrower, I am familiar with the financial condition of Borrower and its Subsidiaries.
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4. Based
on and subject to the foregoing, I hereby certify on behalf of the Borrower that after giving effect to the consummation of the 2019
Transactions (including the execution and delivery of the Incremental Agreement, the making of the loans under such Incremental Agreement
and the use of proceeds of such loans on the date hereof), it is my opinion that (i) each of the Fair Value and the Present Fair
Salable Value of the assets of the Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent
Liabilities; (ii) the Borrower and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iii) the Borrower
and its Subsidiaries taken as a whole can pay their Stated Liabilities and Identified Contingent Liabilities as they mature.
[signature page follows]
IN WITNESS WHEREOF, the Borrower has caused this
certificate to be executed on its behalf by its Chief Financial Officer this 1st day of August, 2019.
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By:
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Name:
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Title: Chief Financial Officer
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Exhibit 10.7
FORM OF
INDEMNIFICATION AGREEMENT
This Indemnification Agreement
is dated as of , 2021 (this “Agreement”) and is between Snap One Holdings Corp., a Delaware corporation
(the “Company”), and [name of director/officer] (“Indemnitee”).
Background
The Company believes that
in order to attract and retain highly competent persons to serve as directors or in other capacities, including as officers, it must provide
such persons with adequate protection through indemnification against the risks of claims and actions against them arising out of their
services to and activities on behalf of the Company.
The Company desires and has
requested Indemnitee to serve, or to continue to serve, as a director or executive officer of the Company and, in order to induce Indemnitee
to serve, or to continue to serve, as a director or executive officer of the Company, the Company is willing to grant Indemnitee the indemnification
provided for herein. Indemnitee is willing to so serve, or to continue to serve, on the basis that such indemnification be provided.
The parties by this Agreement
desire to set forth their agreement regarding indemnification and the advancement of expenses.
In consideration of Indemnitee’s
service to the Company and the covenants and agreements set forth below, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Indemnification.
To the fullest extent permitted by the General Corporation Law of the State of Delaware (the “DGCL”):
(a) The
Company shall indemnify Indemnitee if Indemnitee was or is a party to, is threatened to be made a party to, or is otherwise involved in,
as a witness or otherwise, any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise),
whether civil, criminal, administrative or investigative and whether formal or informal, including any and all appeals, by reason of the
fact that Indemnitee is or was or has agreed to serve as a director or executive officer of the Company, or while serving as a director
or executive officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee
or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of any action alleged
to have been taken or omitted by Indemnitee in any such capacity.
(b) The
indemnification provided by this Section 1 shall be from and against all loss and liability suffered and expenses (including
attorneys’ fees, costs and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on
behalf of Indemnitee in connection with such action, suit or proceeding, including any appeals (collectively, “Losses”).
Section 2. Advancement
of Expenses. To the fullest extent permitted by the DGCL, following the Company’s receipt of notice pursuant to Section 3(a),
expenses (including attorneys’ fees) incurred by Indemnitee in appearing at, participating in or defending, or otherwise arising
out of or related to, any action, suit or proceeding described in Section 1(a) shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding (an “advancement of expenses”) within [●]
days after receipt by the Company of a statement or statements from Indemnitee requesting such advancement of expenses from time to time,
subject to the Company’s receipt of a written undertaking on the part of Indemnitee to repay any amounts so advanced to the extent
that it is ultimately determined by final judicial decision from which there is no further right to appeal (a “final adjudication”)
that such Indemnitee is not entitled to be indemnified or entitled to advancement of expenses under this Agreement. Indemnitee’s
execution of this Agreement shall constitute such undertaking, and no other form of undertaking shall be required of Indemnitee other
than the execution of this Agreement. The Company’s obligation to provide an advancement of expenses to Indemnitee shall be subject
in all respects to Section 3(b). Notwithstanding the foregoing, the Company shall have no obligation
to make any payment provided in this Section 2 in the event the Board of Directors (as defined below) determines, in good faith,
that Indemnitee has engaged in fraud or criminal conduct relating to the subject matter of the proceeding in which Indemnitee is seeking
advancement of expenses.
Section 3. Procedure
for Indemnification; Notification and Defense of Claim.
(a) Promptly
after receipt by Indemnitee of notice of the commencement of any action, suit or proceeding, Indemnitee shall, if any indemnification,
advancement or other claim in respect thereof is to be sought from or made against the Company hereunder, notify the Company in writing
of the commencement thereof. The failure to promptly notify the Company of the commencement of any action, suit or proceeding, or of Indemnitee’s
request for indemnification, advancement or other claims shall not relieve the Company from any liability that it may have to Indemnitee
hereunder and shall not constitute a waiver or release by Indemnitee of any rights hereunder or otherwise, except to the extent the Company
is actually and materially prejudiced in its defense of such action, suit or proceeding as a result of such failure. To submit a request
for indemnification under Section 1, Indemnitee shall submit to the Company a written request therefor; provided
that any request for such indemnification may not be made until after the final disposition of such action, suit or proceeding. Any notice
by Indemnitee under this Section 3 requesting indemnification should include such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to enable the Company to determine whether and to what extent Indemnitee is entitled
to indemnification.
(b) With
respect to any action, suit or proceeding of which the Company is so notified as provided in this Agreement, the Company shall, subject
to the last two sentences of this Section 3(b), be entitled to assume the defense of such action, suit or proceeding, with
counsel reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its election to do so. After delivery
of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable
to Indemnitee under this Agreement for any subsequently incurred fees of separate counsel engaged by Indemnitee with respect to the same
action, suit or proceeding unless the employment of separate counsel by Indemnitee has been previously authorized in writing by the Company,
which authorization will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, if Indemnitee, based on
the advice of his or her counsel, shall have reasonably concluded (with written notice being given to the Company setting forth the basis
for such conclusion) that, in the conduct of any such defense, there is an actual or potential conflict of interest or position (other
than such potential conflicts that are objectively immaterial or remote) between the Company and Indemnitee with respect to a significant
issue, then the Company will not be entitled, without the written consent of Indemnitee, to assume such defense. In addition, the Company
will not be entitled, without the written consent of Indemnitee, to assume the defense of any claim brought by or in the right of the
Company.
(c) The
determination of whether the Indemnitee is entitled to indemnification shall be made promptly and in any event within [60] days following
the Company’s receipt of a request for indemnification in accordance with Section 3(a). If the determination of whether
to grant Indemnitee’s indemnification request shall not have been made within such [60]-day period, the requisite determination
of entitlement to indemnification shall, subject to Section 6, nonetheless, to the fullest extent permitted by law, be deemed
to have been made and Indemnitee shall be entitled to such indemnification, absent (i) an intentional misstatement by Indemnitee
of a material fact, or an intentional omission of a material fact necessary to make Indemnitee’s statement not misleading, in connection
with the request for indemnification, or (ii) a prohibition of such indemnification under the DGCL; provided, however,
that such [60]-day period may be extended for a reasonable time, not to exceed an additional [30] days, if the person or entity making
the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating
of documentation or information relating thereto.
(d) In
the event that (i) the Company determines in accordance with this Section 3 that Indemnitee is not entitled to indemnification
under this Agreement, (ii) the Company denies a request for indemnification, in whole or in part, or fails to respond or make a determination
of entitlement to indemnification within [60] days following receipt of a request for indemnification as described above, (iii) payment
of indemnification is not made within such [60]-day period (as it may be extended), (iv) any advancement of expenses is not timely
made in accordance with Section 2 or (v) the Company or any other person takes or threatens to take any action to declare
this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, Indemnitee
the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication in any
court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses, as applicable. Indemnitee’s
expenses (including attorneys’ fees, costs and expenses) incurred in connection with successfully establishing Indemnitee’s
right to indemnification or advancement of expenses, in whole or in part, in any such proceeding or otherwise shall also be indemnified
by the Company to the fullest extent permitted by the DGCL.
(e) Indemnitee
shall, to the fullest extent permitted by law, and subject to the limitations set forth in Section 2 above, be presumed to
be entitled to indemnification and advancement of expenses under this Agreement upon submission of a request therefor in accordance with
Section 2 or Section 3, as the case may be. The Company shall have the burden of proof in overcoming such presumption,
and such presumption shall be used as a basis for a determination of entitlement to indemnification and advancement of expenses unless,
to the fullest permitted by law, the Company overcomes such presumption by clear and convincing evidence. For purposes of this Agreement,
to the fullest extent permitted by the DGCL, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action
is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by
the officers, employees or committees of the Board of Directors of the Company (the “Board of Directors”),
or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or
records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor
selected by the Company, and the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company
or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights
hereunder.
Section 4. Insurance
and Subrogation.
(a) The
Company hereby covenants and agrees that, so long as Indemnitee shall be subject to any possible action, suit or proceeding by reason
of the fact that Indemnitee is or was or has agreed to serve as a director or officer of the Company, or while serving as a director or
officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent
(which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b),
shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O
Insurance”) in an amount determined by the Board of Directors to be reasonable from established and reputable insurers,
as more fully described below.
(b) Notwithstanding
any other provisions of this Agreement to the contrary, the Company shall have no obligation to obtain or maintain D&O Insurance if
the Company determines in good faith that: (i) such insurance is not reasonably available; (ii) the premium costs for such insurance
are disproportionate to the amount of coverage provided; (iii) the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit; (iv) the Company is to be acquired and a tail policy of reasonable terms and duration is purchased
for pre-closing acts or omissions by Indemnitee; (v) the Company is to be acquired and D&O Insurance, with substantially the
same terms and conditions as the D&O Insurance in place prior to such acquisition, will be maintained by the acquirer that covers
pre-closing acts and omissions by Indemnitee; or (vi) the Company has established an alternative funding mechanism that the Board
of Directors has determines provides coverage to the Indemnitee that is substantially equivalent to the coverage that would be provided
pursuant to the D&O Insurance.
(c) In
all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights
and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer)
if Indemnitee is such an independent director; (ii) of the Company’s nonindependent directors if Indemnitee is not an independent
director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance
in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company
shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set
forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject
to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent
of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering
Indemnitee. Indemnitee shall execute all papers required and take all reasonable action necessary to secure such rights, including execution
of such documents as are necessary to enable the Company to bring suit to enforce such rights in accordance with the terms of such insurance
policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject
to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise
actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Section 5. Certain
Definitions. For purposes of this Agreement, the following definitions shall apply:
(a) The
term “action, suit or proceeding” shall be broadly construed and shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed
claim, counterclaim, cross claim, action, suit, arbitration, alternative dispute mechanism or proceeding, whether civil, criminal, administrative
or investigative.
(b) The
term “by reason of the fact that Indemnitee is or was or has agreed to serve as a director or officer of the Company, or while
serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director,
officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of
another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise”
shall be broadly construed and shall include, without limitation, any actual or alleged act or omission to act by Indemnitee in any of
the foregoing capacities or by virtue of Indemnitee’s status as such.
(c) The
term “expenses” shall be broadly construed and shall include, without limitation, all direct and indirect costs
of any type or nature whatsoever (including, without limitation, all attorneys’ fees, costs and expenses and related disbursements,
appeal bonds, other out-of-pocket costs, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state,
local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise
taxes and penalties and reasonable compensation for time spent by Indemnitee for which Indemnitee is not otherwise compensated by the
Company or any third party), actually and reasonably incurred by Indemnitee in connection with either the investigation, defense or appeal
of an action, suit or proceeding or establishing or enforcing a right to indemnification under this Agreement or otherwise incurred in
connection with a claim that is indemnifiable hereunder.
(d) The
term “judgments, fines and amounts paid in settlement” shall be broadly construed and shall include, without
limitation, all direct and indirect payments of any type or nature whatsoever, as well as any penalties or excise taxes assessed on a
person with respect to an employee benefit plan, provided, however, that Company shall not be required to make any payment which leaves
Indemnitee in a better position than the Indemnitee was in before the action, suit, or proceeding.
Section 6. Limitation
on Indemnification. Notwithstanding any provision of this Agreement to the contrary, the
Company shall not be obligated pursuant to this Agreement:
(a) Proceedings
Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee with respect to an action, suit or proceeding (or part thereof)
initiated voluntarily by Indemnitee, except with respect to any compulsory counterclaim brought by Indemnitee, unless (i) such indemnification
is expressly required to be made by law, (ii) such action, suit or proceeding (or part thereof) was authorized or consented to by
the Board of Directors or (iii) with respect to an advancement of expenses, such action, suit or proceeding is brought to establish
or enforce a right to indemnification or advancement of expenses under this Agreement, the Company’s certificate of incorporation,
the Company’s bylaws or any other statute or law or otherwise as required under Section 145 of the DGCL in advance of a final
determination or, in the case of indemnification, such indemnification is required by the last sentence of Section 3(d).
(b) Section 16(b) and
Clawback Matters. To indemnify Indemnitee for (i) an accounting of profits made from the purchase and sale (or sale and purchase)
by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities and Exchange Act of 1934, as
amended (the “Exchange Act”), or similar provisions of state statutory law or common law, (ii) any reimbursement
of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the
Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements
that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation
of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant
to any compensation recoupment or clawback policy adopted by the Board of Directors or the compensation committee of the Board of Directors,
including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D
of the Exchange Act.
(c) Prohibited
by Law or Public Policy. To indemnify or advance expenses to Indemnitee in any circumstance where such indemnification has been determined
to be prohibited by law by a final (not interlocutory) judgment or other adjudication of a court or arbitration or administrative body
of competent jurisdiction as to which there is no further right or option of appeal or the time within which an appeal must be filed has
expired without such filing.
Section 7. Change
in Control.
(a) The
Company agrees that if there is a change in control of the Company, then with respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnification and advancement of expenses under this Agreement, any other agreement or the Company’s
certificate of incorporation or bylaws now or hereafter in effect, the Company shall seek legal advice only from independent counsel
selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld, delayed or conditioned). In addition,
upon written request by Indemnitee for indemnification pursuant to Section 1 or Section 3(a), a determination,
if required by the DGCL, with respect to Indemnitee’s entitlement thereto shall be made by such independent counsel in a written
opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee. The Company agrees to pay the reasonable fees of
the independent counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys’
fees, costs and expenses), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(b) For
purposes of this Section 7, the following definitions shall apply:
(i) A
“change in control” shall be deemed to occur upon the earliest to occur after the date of this Agreement of
any of the following: (A) any person or group, within the meaning of Section 13(d)(3) of the Exchange Act, obtains ownership,
directly or indirectly, of (x) more than 50% of the total voting power of the outstanding capital stock of the Company or applicable
successor entity (including any securities convertible into, or exercisable or exchangeable for such capital stock) or (y) all or
substantially all of the assets of the Company and its Subsidiaries on a consolidated basis; (B) during any period of two consecutive
years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute
the Board of Directors, and any new director (other than a director designated by a person who has entered into an agreement with the
Company to effect a transaction described in Sections 7(b)(i)(A), 7(b)(i)(C) or 7(b)(i)(D) or a director
whose initial nomination for, or assumption of office as, a member of the Board of Directors occurs as a result of an actual or threatened
solicitation of proxies or consents for election or removal of one or more directors by any person or group other than a solicitation
for the election of one or more directors by or on behalf of the Board of Directors) whose election to the Board of Directors or nomination
for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for
any reason to constitute at least a majority of the members of the Board of Directors; (C) the effective date of a merger or consolidation
of the Company with any other entity, other than a merger or consolidation that would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least 50% of the combined voting power of the voting securities of the surviving entity
outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or
other governing body of such surviving entity; and (D) the approval by the stockholders of the Company of a complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets. For
purposes of this Section 7(b)(i) only, “person” shall have the meaning as set forth in Sections 13(d) and
14(d) of the Exchange Act; provided, however, that “person” shall exclude (a) the Company, (b) any
trustee or other fiduciary holding securities under an employee benefit plan of the Company and (c) any corporation owned, directly
or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.
(ii) The
term “independent counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation
law and neither presently is, nor in the past five years has been, retained to represent: (A) the Company or Indemnitee in any matter
material to either such party or (B) any other party to the action, suit or proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “independent counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(iii) The
term “Subsidiary” means, with respect to the Company (or an applicable successor entity), any corporation, partnership,
limited liability company, association or other business entity of which (i) if a corporation, a majority of the total voting power
of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing
persons or bodies thereof is at the time owned or controlled, directly or indirectly, by the Company or one or more of the other Subsidiaries
of the Company or a combination thereof, or (ii) if a partnership, limited liability company, association or other business entity,
a majority of the partnership, limited liability company or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by the Company or one or more of the other Subsidiaries of the Company or a combination thereof. For purposes
hereof, the Company or its applicable Subsidiary shall be deemed to have a majority ownership interest in a partnership, limited liability
company, association or other business entity if the Company or such applicable Subsidiary shall be allocated a majority of partnership,
limited liability company, association or other business entity gains or losses or shall be or control the managing director, managing
member, manager or general partner of such partnership, limited liability company, association or other business entity.
Section 8. Certain
Settlement Provisions. Notwithstanding anything to the contrary set forth herein, the Company
shall have no obligation to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action, suit or proceeding
without the Company’s prior written consent. The Company shall not, without Indemnitee’s prior written consent, settle any
action, suit or proceeding in any manner that would attribute to Indemnitee any admission of civil or criminal liability or that would
result in the imposition of any fine or penalty or other obligation or restriction on Indemnitee. Neither the Company nor Indemnitee will
unreasonably withhold, condition or delay his, her or its consent to any proposed settlement.
Section 9. Savings
Clause. If any provision or provisions (or portion thereof) of this Agreement shall be invalidated
or held to be unenforceable on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee
if Indemnitee was or is a party to, is threatened to be made a party to, or is otherwise involved in, as a witness or otherwise, any threatened,
pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative
or investigative and whether formal or informal, including any and all appeals, by reason of the fact that Indemnitee is or was or has
agreed to serve as a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or
has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include
a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of any action alleged to have been taken or omitted by Indemnitee in any
such capacity, from and against all Losses suffered by, or incurred by or on behalf of, Indemnitee in connection with such action,
suit or proceeding, including any appeals, to the fullest extent permitted by any applicable portion of this Agreement that shall not
have been invalidated or held to be unenforceable.
Section 10. Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for herein is held by a
court of competent jurisdiction to be unavailable to Indemnitee in whole or in part, it is agreed that, in such event, the Company shall,
to the fullest extent permitted by law, contribute to the payment of all Losses suffered by, or incurred by or on behalf of, Indemnitee
in connection with any action, suit or proceeding, including any appeals, in an amount that is just and equitable in the circumstances
in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such actions, suit or proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees
and agents) and Indemnitee in connection with such event(s) and/or transaction(s); provided that, without limiting the generality
of the foregoing, such contribution shall not be required where such holding by the court is due to any limitation on indemnification
set forth in Section 4(e), Section 6 or Section 8.
Section 11. Form and
Delivery of Communications. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand, upon receipt by the party
to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid,
on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier, one day after deposit
with such courier and with written verification of receipt, (d) sent by email (provided no “bounceback” or similar message
indicating non-delivery) or (e) sent by facsimile transmission, with receipt of oral confirmation that such facsimile transmission
has been received. Notice to the Company shall be directed to [_____], email: [_____@snapav.com], facsimile: [(___)-___-____], confirmation
number: [(___)-___-____]. Notice to Indemnitee shall be directed to [_____], email: [_____@_____.com], facsimile: [(___)-___-____], confirmation
number: [(___)-___-____].
Section 12. Nonexclusivity.
The provisions for indemnification to or the advancement of expenses and costs to Indemnitee under this Agreement shall not limit or restrict
in any way the power of the Company to indemnify or advance expenses to Indemnitee in any other way permitted by law or be deemed exclusive
of, or invalidate, any right to which any indemnitee seeking indemnification or advancement of expenses may be entitled under any law,
the Company’s certificate of incorporation or bylaws, other agreements or arrangements, vote of stockholders or disinterested directors
or otherwise, both as to action in Indemnitee’s capacity as an officer, director, employee or agent of the Company and as to action
in any other capacity. Indemnitee’s rights hereunder shall inure to the benefit of the heirs, executors and administrators of Indemnitee.
Section 13. Defenses.
In (i) any action, suit or proceeding brought by Indemnitee to enforce a right to indemnification
hereunder (but not in an action, suit or proceeding brought by Indemnitee to enforce a right to an advancement of expenses) it shall
be a defense that, and (ii) any action, suit or proceeding brought by the Company to recover an advancement of expenses pursuant
to the terms of an undertaking by Indemnitee pursuant to Section 2, the Company shall be entitled to recover such expenses
upon a final adjudication that, Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither
the failure of the Company (including its directors who are not parties to such action, a committee of such directors, independent legal
counsel or the Company’s stockholders) to have made a determination prior to the commencement of such suit that indemnification
of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor
an actual determination by the Company (including its directors who are not parties to such action, a committee of such directors, independent
legal counsel or the Company’s stockholders) that Indemnitee has not met such applicable standard of conduct, shall create a presumption
that Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by Indemnitee, be a defense to
such suit.
Section 14. No
Construction as Employment Agreement. Nothing contained herein shall be construed as giving
Indemnitee any right to be retained as a director or officer of the Company or in the employ of the Company or any other entity. For the
avoidance of doubt, the indemnification and advancement of expenses provided under this Agreement shall continue as to Indemnitee even
though he or she may have ceased to be a director, officer, employee or agent of the Company or ceased to serve at the request of the
Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager
or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise.
Section 15. Jointly
Indemnifiable Claims.
(a) Given
that certain jointly indemnifiable claims may arise due to the service of Indemnitee as a director and/or officer of the Company at the
request of Indemnitee-related entities (as defined below), the Company acknowledges and agrees that the Company shall be fully and primarily
responsible for payments to Indemnitee in respect of indemnification or advancement of expenses in connection with any such jointly indemnifiable
claims pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery Indemnitee may have from
Indemnitee-related entities. Under no circumstance shall the Company be entitled to any right of subrogation or contribution by Indemnitee-related
entities, and no right of advancement or recovery Indemnitee may have from Indemnitee-related entities shall reduce or otherwise alter
the rights of Indemnitee or the obligations of the Company hereunder. In the event that any Indemnitee-related entity shall make any payment
to Indemnitee in respect of indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the Indemnitee-related
entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee against the
Company, and Indemnitee shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure
such rights, including the execution of such documents as may be necessary to enable Indemnitee-related entities effectively to bring
suit to enforce such rights. The Company and Indemnitee agree that each Indemnitee-related entity shall be a third-party beneficiary with
respect to this Section 15(a) and entitled to enforce this Section 15(a) as though each such Indemnitee-related
entity were a party to this Agreement.
(b) For
purposes of this Section 15, the following terms shall have the following meanings:
(i) The
term “Indemnitee-related entities” means any corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise (other than the Company or any other corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other enterprise Indemnitee has agreed, on behalf of the Company or at the Company’s
request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement)
from whom an Indemnitee may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the
Company may also have an indemnification or advancement obligation (other than as a result of obligations under an insurance policy).
(ii) The
term “jointly indemnifiable claims” shall be broadly construed and shall include, without limitation, any action,
suit or proceeding for which Indemnitee shall be entitled to indemnification or advancement of expenses from both the Company and any
Indemnitee-related entity pursuant to the DGCL, any agreement or the certificate of incorporation, bylaws, partnership agreement, operating
agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Company or Indemnitee-related
entities, as applicable.
Section 16. Interpretation
of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted
and enforced so as to provide, in each instance, indemnification and advancement of expenses to Indemnitee to the fullest extent permitted
by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the fullest extent permitted
by law). Whenever the words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words
or words of like import.
Section 17. Entire
Agreement. This Agreement and the documents expressly referred to herein (including, without
limitation, the Company’s certificate of incorporation and bylaws) constitute the entire agreement between the parties hereto with
respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect
to the matters covered hereby are expressly superseded by this Agreement.
Section 18. Modification
and Waiver. No supplement, modification, waiver or amendment of this Agreement shall be binding
unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. For the avoidance
of doubt, (a) this Agreement may not be modified or terminated by the Company without Indemnitee’s prior written consent; (b) no
amendment, alteration or interpretation of the Company’s certification of incorporation or bylaws or any other agreement or arrangement
shall limit or otherwise adversely affect the rights provided to Indemnitee under this Agreement and (c) a right to indemnification
or to advancement of expenses arising under a provision of the Company’s certification of incorporation or bylaws or this Agreement
shall not be eliminated or impaired by an amendment to such provision after the occurrence of the act or omission that is the subject
of the action, suit or proceeding for which indemnification or advancement of expenses is sought.
Section 19. Successor
and Assigns. All of the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs, executors, administrators
and legal representatives. The Company shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation
or otherwise) to all or substantially all of the business or assets of the Company, by written agreement, expressly to assume and agree
to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession
had taken place.
Section 20. Service
of Process and Venue. The Company and the Indemnitee hereby irrevocably and unconditionally
(a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought in the Chancery Court
of the State of Delaware (the “Delaware Court”), (b) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (c) appoint,
to the extent the Company is not otherwise subject to service of process in the State of Delaware, Corporation Service Company, as its
agent in the State of Delaware for acceptance of legal process in connection with any such action or proceeding against such party with
the same legal force and validity as if served upon the Company personally within the State of Delaware, (d) waive any objection
to the laying of venue of any such action or proceeding in the Delaware Court and (e) waive, and agree not to plead or to make, any
claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
Section 21. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to principles of conflicts of laws thereof. If, notwithstanding the foregoing, a court of competent
jurisdiction shall make a final determination that the provisions of the law of any state other than Delaware govern indemnification by
the Company of Indemnitee, then the indemnification provided under this Agreement shall in all instances be enforceable to the fullest
extent permitted under such law, notwithstanding any provision of this Agreement to the contrary.
Section 22. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together
shall be deemed to be one and the same instrument, notwithstanding that both parties are not signatories to the original or same counterpart.
Section 23. Headings
and Section References. The section and subsection headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Section references
are to this Agreement unless otherwise specified.
[Signature Page Follows]
This Indemnification Agreement
has been duly executed and delivered to be effective as of the date first written above.
[Signature Page to Indemnification Agreement]
Exhibit 10.9
OPTION GRANT NOTICE
UNDER THE
Snap One Holdings Corp.
2021 EQUITY INCENTIVE PLAN
Snap One Holdings Corp., Delaware corporation (the
“Company”), pursuant to its 2021 Equity Incentive Plan, as it may be amended and restated from time to time (the “Plan”),
hereby grants to the Participant set forth below the number of Options (each Option representing the right to purchase one share of Common
Stock) set forth below, at an Exercise Price per share as set forth below. The Options are subject to all of the terms and conditions
as set forth herein, in the Option Agreement (attached hereto or previously provided to the Participant in connection with a prior grant),
and in the Plan, all of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Plan.
Participant:
Date of Grant:
Vesting Commencement Date:
Number of Options:
Exercise Price:
Option Period Expiration Date:
Type of Option:
Vesting Schedule:
THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT
OF THIS OPTION GRANT NOTICE, THE OPTION AGREEMENT AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT OF OPTIONS HEREUNDER, AGREES
TO BE BOUND BY THE TERMS OF THIS OPTION GRANT NOTICE, THE OPTION AGREEMENT AND THE PLAN.
Participant1
Snap One Holdings Corp.
By:
Title:
|
1
|
To the extent that the Company has established, either itself
or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participant’s
signature hereto.
|
[Signature Page to Option
Grant Notice]
OPTION AGREEMENT
UNDER THE
Snap One Holdings Corp.
2021 EQUITY INCENTIVE PLAN
Pursuant to the Option Grant
Notice (the “Grant Notice”) delivered to the Participant (as defined in the Grant Notice), and subject to the terms
of this Option Agreement (this “Option Agreement”) and the Snap One Holdings Corp. 2021 Equity Incentive Plan, as it
may be amended and restated from time to time (the “Plan”), the Company and the Participant agree as follows. Capitalized
terms not otherwise defined herein shall have the same meaning as set forth in the Plan.
1. Grant
of Option. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant the
number of Options provided in the Grant Notice (with each Option representing the right to purchase one share of Common Stock), at an
Exercise Price per share as provided in the Grant Notice. The Company may make one or more additional grants of Options to the Participant
under this Option Agreement by providing the Participant with a new grant notice, which may also include any terms and conditions differing
from this Option Agreement to the extent provided therein. The Company reserves all rights with respect to the granting of additional
Options hereunder and makes no implied promise to grant additional Options.
2. Vesting.
Subject to the conditions contained herein and in the Plan, the Options shall vest as provided in the Grant Notice.
3. Treatment
of Options on Termination. The provisions of Section 7(c)(iii) of the Plan are incorporated herein by reference and made
a part hereof; provided, however, that in the case of a Termination as a result of the Participant’s death, unvested
Options will remain outstanding for one (1) month following the date of such Termination (or through the Expiration Date, if earlier),
but shall be eligible to vest only to the extent the Committee determines, during such one (1) month period (or prior to the Expiration
Date, if earlier), to accelerate the vesting of such unvested Options, and if the Committee fails to make such determination, the Options
will expire without further action at the end of such period.
4. Method
of Exercising Options. The Options may be exercised by the delivery of notice of the number of Options that are being exercised accompanied
by payment in full of the Exercise Price applicable to the Options so exercised. Such notice shall be delivered either (a) in writing
to the Company at its principal office or at such other address as may be established by the Committee, to the attention of the Company’s
General Counsel or its designee; or (b) to a third-party plan administrator as may be arranged for by the Company or the Committee
from time to time for purposes of the administration of outstanding Options under the Plan, in the case of either (a) or (b), as
communicated to the Participant by the Company from time to time. Payment of the aggregate Exercise Price may be made using any of the
methods described in Section 7(d)(i) or (ii)(A), (B) and (C) of the Plan; provided that the Participant shall
obtain written consent from the Company prior to the use of the methods described in Section 7(d)(ii)(A) of the Plan.
5. Issuance
of Shares of Common Stock. Following the exercise of an Option hereunder, as promptly as practical after receipt of such notification
and full payment of such Exercise Price and any required income or other tax withholding amount (as provided in Section 9 hereof),
the Company shall issue or transfer, or cause such issue or transfer, to the Participant the number of shares of Common Stock with respect
to which the Options have been so exercised, and shall either (a) deliver, or cause to be delivered, to the Participant a certificate
or certificates therefor, registered in the Participant’s name or (b) cause such shares of Common Stock to be credited to the
Participant’s account at the third-party plan administrator.
6. Company;
Participant.
(a) The
term “Company” as used in this Option Agreement with reference to employment shall include the Company and its Subsidiaries.
(b) Whenever
the word “Participant” is used in any provision of this Option Agreement under circumstances where the provision should logically
be construed to apply to the executors, the administrators, or the person or persons to whom the Options may be transferred in accordance
with Section 12(b) of the Plan, the word “Participant” shall be deemed to include such person or persons.
7. Non-Transferability.
The Options are not transferable by the Participant; provided, however, to the extent permitted by the Committee in accordance
with Section 12(b) of the Plan, vested Options may be transferred to Permitted Transferees. Except as otherwise provided herein,
no assignment or transfer of the Options, or of the rights represented thereby, whether voluntary or involuntary, by operation of law
or otherwise, shall vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or
transfer the Options shall terminate and become of no further effect.
8. Rights
as Shareholder. The Participant shall have no rights as a shareholder with respect to any share of Common Stock covered by an Option
unless and until the Participant shall have become the holder of record or the beneficial owner of such share of Common Stock, and no
adjustment shall be made for dividends or distributions or other rights in respect of such share of Common Stock for which the record
date is prior to the date upon which the Participant shall become the holder of record or the beneficial owner thereof.
9. Tax
Withholding. The provisions of Section 12(d) of the Plan are incorporated herein by reference and made a part hereof.
10. Notice.
Every notice or other communication relating to this Option Agreement between the Company and the Participant shall be in writing, which
may include by electronic mail, and shall be mailed to or delivered to the party for whom it is intended at such address as may from time
to time be designated by such party in a notice mailed or delivered to the other party as herein provided; provided that, unless
and until some other address be so designated, all notices or communications by the Participant to the Company shall be mailed or delivered
to the Company at its principal executive office, to the attention of the Company’s General Counsel or its designee, and all notices
or communications by the Company to the Participant may be given to the Participant personally or may be mailed to the Participant at
the Participant’s last known address, as reflected in the Company’s records. Notwithstanding the above, all notices and communications
between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the
procedures established by such third-party plan administrator and communicated to the Participant from time to time.
11. No
Right to Continued Service. This Option Agreement does not confer upon the Participant any right to continue as an employee or service
provider to the Company.
12. Binding
Effect. This Option Agreement shall be binding upon the heirs, executors, administrators and successors of the parties hereto.
13. Waiver
and Amendments. Except as otherwise set forth in Section 11 of the Plan, any waiver, alteration, amendment or modification of
any of the terms of this Option Agreement shall be valid only if made in writing and signed by the parties hereto; provided, however,
that any such waiver, alteration, amendment or modification is consented to on the Company’s behalf by the Committee. No waiver
by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences
or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
14. Clawback/Forfeiture.
Notwithstanding anything to the contrary contained herein or in the Plan, if the Participant has engaged in or engages in any Detrimental
Activity, then the Committee may, in its sole discretion, take actions permitted under the Plan, including: (a) canceling the Options,
or (b) requiring that the Participant forfeit any gain realized on the exercise of the Options or the disposition of any shares of
Common Stock received upon exercise of the Options, and repay such gain to the Company. In addition, if the Participant receives any amount
in excess of what the Participant should have received under the terms of this Option Agreement for any reason (including without limitation
by reason of a financial restatement, mistake in calculations or other administrative error), then the Participant shall be required to
repay any such excess amount to the Company. Without limiting the foregoing, all Options shall be subject to reduction, cancellation,
forfeiture or recoupment to the extent necessary to comply with applicable law.
15. Governing
Law. This Option Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof. Notwithstanding anything contained in this Option Agreement, the Grant Notice or the Plan
to the contrary, if any suit or claim is instituted by the Participant or the Company relating to this Option Agreement, the Grant Notice
or the Plan, the Participant hereby submits to the exclusive jurisdiction of and venue in the courts of Delaware.
16. Plan.
The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency between the terms
and provisions of the Plan and the provisions of this Option Agreement (including the Grant Notice), the Plan shall govern and control.
17. Imposition
of Other Requirements. The Company reserves the right to impose other requirements on the Participant’s participation in the
Plan, on the Options and on any shares of Common Stock acquired under the Plan, to the extent the Company determines it is necessary or
advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may
be necessary to accomplish the foregoing.
18. Electronic
Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation
in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate
in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
19. Entire
Agreement. This Option Agreement, the Grant Notice and the Plan constitute the entire agreement of the parties hereto in respect of
the subject matter contained herein and supersede all prior agreements and understandings of the parties, oral and written, with respect
to such subject matter.
Exhibit 10.10
Employee Form
RESTRICTED STOCK UNIT GRANT NOTICE
UNDER THE
SNAP ONE HOLDINGS CORP.
2021 EQUITY INCENTIVE PLAN
Snap One Holdings Corp., a Delaware corporation
(the “Company”), pursuant to its 2021 Equity Incentive Plan, as it may be amended and restated from time to time (the
“Plan”), hereby grants to the Participant set forth below the number of Restricted Stock Units set forth below. The
Restricted Stock Units are subject to all of the terms and conditions as set forth herein, in the Restricted Stock Unit Agreement (attached
hereto or previously provided to the Participant in connection with a prior grant), and in the Plan, all of which are incorporated herein
in their entirety. Capitalized terms not otherwise defined herein shall have the meaning set forth in the Plan.
Date of Grant:
Vesting Commencement Date:
Number of
Restricted Stock Units:
Vesting Schedule:
|
Dividend Equivalents:
|
The Restricted Stock Units shall be credited with dividend equivalent payments, as provided in Section 12(c)(iii) of the Plan.
|
* * *
THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT
OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED STOCK UNIT AGREEMENT AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT
OF RESTRICTED STOCK UNITS HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED STOCK
UNIT AGREEMENT AND THE PLAN.
Participant1
Snap One Holdings Corp.
By:
Title:
|
1
|
To the extent that the Company has established, either itself
or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participant's
signature hereto.
|
RESTRICTED STOCK UNIT AGREEMENT
UNDER THE
Snap One Holdings Corp.
2021 EQUITY INCENTIVE PLAN
Pursuant to the Restricted Stock
Unit Grant Notice (the “Grant Notice”) delivered to the Participant (as defined in the Grant Notice), and subject to
the terms of this Restricted Stock Unit Agreement (this “Restricted Stock Unit Agreement”) and the Snap One Holdings
Corp. 2021 Equity Incentive Plan, as it may be amended and restated from time to time (the “Plan”), the Company and
the Participant agree as follows. Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Plan.
1. Grant
of Restricted Stock Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the
Participant the number of Restricted Stock Units provided in the Grant Notice (with each Restricted Stock Unit representing an unfunded,
unsecured right to receive one share of Common Stock). The Company may make one or more additional grants of Restricted Stock Units to
the Participant under this Restricted Stock Unit Agreement by providing the Participant with a new grant notice, which may also include
any terms and conditions differing from this Restricted Stock Unit Agreement to the extent provided therein. The Company reserves all
rights with respect to the granting of additional Restricted Stock Units hereunder and makes no implied promise to grant additional Restricted
Stock Units.
2. Vesting.
Subject to the conditions contained herein and in the Plan, the Restricted Stock Units shall vest as provided in the Grant Notice.
3. Settlement
of Restricted Stock Units. The Company will deliver to the Participant, without charge, as soon as reasonably practicable (and, in
any event, within two and one-half months) following the applicable vesting date, one share of Common Stock for each Restricted Stock
Unit (as adjusted under the Plan, as applicable) which becomes vested hereunder and such vested Restricted Stock Unit shall be cancelled
upon such delivery. The Company shall either (a) deliver, or cause to be delivered, to the Participant a certificate or certificates
therefor, registered in the Participant’s name or (b) cause such shares of Common Stock to be credited to the Participant’s
account at the third party plan administrator. Notwithstanding anything in this Restricted Stock Unit Agreement to the contrary, the Company
shall have no obligation to issue or transfer any shares of Common Stock as contemplated by this Restricted Stock Unit Agreement unless
and until such issuance or transfer complies with all relevant provisions of law and the requirements of any stock exchange on which the
Company’s shares of Common Stock are listed for trading.
4. Treatment
of Restricted Stock Units Upon Termination. The provisions of Section 8(c)(ii) of the Plan are incorporated herein by reference
and made a part hereof; provided, however, that in the case of a Termination as a result of the Participant’s death,
unvested Restricted Stock Units will remain outstanding for one (1) month following the date of such Termination, but shall be eligible
to vest only to the extent the Committee determines, during such one (1) month period, to accelerate the vesting of such unvested
Restricted Stock Units, and if the Committee fails to make such determination, the unvested Restricted Stock Units will terminate without
further action at the end of such period.
5. Company;
Participant.
(a) The
term “Company” as used in this Restricted Stock Unit Agreement with reference to service shall include the Company and its
Subsidiaries.
(b) Whenever
the word “Participant” is used in any provision of this Restricted Stock Unit Agreement under circumstances where the provision
should logically be construed to apply to the executors, the administrators, or the person or persons to whom the Restricted Stock Units
may be transferred in accordance with Section 12(b) of the Plan, the word “Participant” shall be deemed to include
such person or person.
6. Non-Transferability.
The Restricted Stock Units are not transferable by the Participant except to Permitted Transferees in accordance with Section 12(b) of
the Plan. Except as otherwise provided herein, no assignment or transfer of the Restricted Stock Units, or of the rights represented thereby,
whether voluntary or involuntary, by operation of law or otherwise, shall vest in the assignee or transferee any interest or right herein
whatsoever, but immediately upon such assignment or transfer the Restricted Stock Units shall terminate and become of no further effect.
7. Rights
as Shareholder. Subject to any dividend equivalent payments to be provided to the Participant in accordance with the Grant Notice
and Section 12(c)(iii) of the Plan, the Participant or a Permitted Transferee of the Restricted Stock Units shall have no rights
as a shareholder with respect to any share of Common Stock underlying a Restricted Stock Unit unless and until the Participant shall have
become the holder of record or the beneficial owner of such share of Common Stock, and no adjustment shall be made for dividends or distributions
or other rights in respect of such share of Common Stock for which the record date is prior to the date upon which the Participant shall
become the holder of record or the beneficial owner thereof.
8. Tax
Withholding. The provisions of Section 12(d) of the Plan are incorporated herein by reference and made a part hereof. The
Participant shall satisfy such Participant’s withholding liability, if any, referred to in Section 12(d) of the Plan by
having the Company withhold from the number of shares of Common Stock otherwise deliverable pursuant to the settlement of the Restricted
Stock Units a number of shares of Common Stock with a Fair Market Value, on the date that the Restricted Stock Units are settled, equal
to such withholding liability; provided that the number of such shares may not have a Fair Market Value greater than the minimum
required statutory withholding liability unless determined by the Committee not to result in adverse accounting consequences.
9. Notice.
Every notice or other communication relating to this Restricted Stock Unit Agreement between the Company and the Participant shall be
in writing, which may include by electronic mail, and shall be mailed to or delivered to the party for whom it is intended at such address
as may from time to time be designated by such party in a notice mailed or delivered to the other party as herein provided; provided
that, unless and until some other address be so designated, all notices or communications by the Participant to the Company shall be mailed
or delivered to the Company at its principal executive office, to the attention of the Company’s General Counsel or its designee,
and all notices or communications by the Company to the Participant may be given to the Participant personally or may be mailed to the
Participant at the Participant’s last known address, as reflected in the Company’s records. Notwithstanding the above, all
notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent
in accordance with the procedures established by such third-party plan administrator and communicated to the Participant from time to
time.
10. No
Right to Continued Service. This Restricted Stock Unit Agreement does not confer upon the Participant any right to continue as a director
or other service provider to the Company.
11. Binding
Effect. This Restricted Stock Unit Agreement shall be binding upon the heirs, executors, administrators and successors of the parties
hereto.
12. Waiver
and Amendments. Except as otherwise set forth in Section 11 of the Plan, any waiver, alteration, amendment or modification of
any of the terms of this Restricted Stock Unit Agreement shall be valid only if made in writing and signed by the parties hereto; provided,
however, that any such waiver, alteration, amendment or modification is consented to on the Company’s behalf by the Committee.
No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent
occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
13. Clawback/Forfeiture.
Notwithstanding anything to the contrary contained herein or in the Plan, if the Participant has engaged in or engages in any Detrimental
Activity, then the Committee may, in its sole discretion, take actions permitted under the Plan, including: (a) canceling the Restricted
Stock Units, or (b) requiring that the Participant forfeit any gain realized upon the disposition of any shares of Common Stock received
in respect of the Restricted Stock Units, and repay such gain to the Company. In addition, if the Participant receives any amount in excess
of what the Participant should have received under the terms of this Restricted Stock Unit Agreement for any reason (including without
limitation by reason of a financial restatement, mistake in calculations or other administrative error), then the Participant shall be
required to repay any such excess amount to the Company. Without limiting the foregoing, all Restricted Stock Units shall be subject to
reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with applicable law.
14. Governing
Law. This Restricted Stock Unit Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware,
without regard to the principles of conflicts of law thereof. Notwithstanding anything contained in this Restricted Stock Unit Agreement,
the Grant Notice or the Plan to the contrary, if any suit or claim is instituted by the Participant or the Company relating to this Restricted
Stock Unit Agreement, the Grant Notice or the Plan, the Participant hereby submits to the exclusive jurisdiction of and venue in the courts
of Delaware.
15. Plan.
The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency between the terms
and provisions of the Plan and the provisions of this Restricted Stock Unit Agreement (including the Grant Notice), the Plan shall govern
and control.
16. Section 409A.
It is intended that the Restricted Stock Units granted hereunder shall be exempt from Section 409A of the Code pursuant to the “short-term
deferral” rule applicable to such section, as set forth in the regulations or other guidance published by the Internal Revenue
Service thereunder.
17. Imposition
of Other Requirements. The Company reserves the right to impose other requirements on the Participant’s participation in the
Plan, on the Restricted Stock Units and on any shares of Common Stock acquired under the Plan, to the extent the Company determines it
is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings
that may be necessary to accomplish the foregoing.
18. Electronic
Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation
in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate
in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
19. Entire
Agreement. This Restricted Stock Unit Agreement, the Grant Notice and the Plan constitute the entire agreement of the parties hereto
in respect of the subject matter contained herein and supersede all prior agreements and understandings of the parties, oral and written,
with respect to such subject matter.
Exhibit 10.11
Non-Employee Director Form
RESTRICTED STOCK UNIT GRANT NOTICE
UNDER THE
SNAP ONE HOLDINGS CORP.
2021 EQUITY INCENTIVE PLAN
Snap One Holdings Corp., a Delaware corporation
(the “Company”), pursuant to its 2021 Equity Incentive Plan, as it may be amended and restated from time to time (the
“Plan”), hereby grants to the Participant set forth below the number of Restricted StockP Units set forth below. The
Restricted Stock Units are subject to all of the terms and conditions as set forth herein, in the Restricted Stock Unit Agreement (attached
hereto or previously provided to the Participant in connection with a prior grant), and in the Plan, all of which are incorporated herein
in their entirety. Capitalized terms not otherwise defined herein shall have the meaning set forth in the Plan.
Participant:
Date of Grant:
Vesting Commencement Date:
Number of
Restricted Stock Units:
Vesting Schedule:
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Dividend Equivalents:
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The Restricted Stock Units shall be credited with dividend equivalent payments, as provided in Section 12(c)(iii) of the Plan.
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* * *
THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT
OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED STOCK UNIT AGREEMENT AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT
OF RESTRICTED STOCK UNITS HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED STOCK
UNIT AGREEMENT AND THE PLAN.
Participant1
___________________________________________
Snap One Holdings Corp.
___________________________________________
By:
Title:
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1
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To the extent that the Company has established, either itself
or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participant's
signature hereto.
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[Signature Page to Restricted
Stock Unit Agreement (Non-Employee Directors)]
RESTRICTED STOCK UNIT AGREEMENT
UNDER THE
Snap One Holdings Corp.
2021 EQUITY INCENTIVE PLAN
Pursuant to the Restricted
Stock Unit Grant Notice (the “Grant Notice”) delivered to the Participant (as defined in the Grant Notice), and subject
to the terms of this Restricted Stock Unit Agreement (this “Restricted Stock Unit Agreement”) and the Snap One Holdings
Corp. 2021 Equity Incentive Plan, as it may be amended and restated from time to time (the “Plan”), the Company and
the Participant agree as follows. Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Plan.
1. Grant
of Restricted Stock Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the
Participant the number of Restricted Stock Units provided in the Grant Notice (with each Restricted Stock Unit representing an unfunded,
unsecured right to receive one share of Common Stock). The Company may make one or more additional grants of Restricted Stock Units to
the Participant under this Restricted Stock Unit Agreement by providing the Participant with a new grant notice, which may also include
any terms and conditions differing from this Restricted Stock Unit Agreement to the extent provided therein. The Company reserves all
rights with respect to the granting of additional Restricted Stock Units hereunder and makes no implied promise to grant additional Restricted
Stock Units.
2. Vesting.
Subject to the conditions contained herein and in the Plan, the Restricted Stock Units shall vest as provided in the Grant Notice.
3. Settlement
of Restricted Stock Units. Subject to any effective election under the Company’s Directors Deferral Plan, as may be amended
from time to time (the “Deferral Plan Election”), The Company will deliver to the Participant, without charge, as
soon as reasonably practicable (and, in any event, within two and one-half months) following the applicable vesting date, one share of
Common Stock for each Restricted Stock Unit (as adjusted under the Plan, as applicable) which becomes vested hereunder and such vested
Restricted Stock Unit shall be cancelled upon such delivery. The Company shall either (a) deliver, or cause to be delivered, to
the Participant a certificate or certificates therefor, registered in the Participant’s name or (b) cause such shares of Common
Stock to be credited to the Participant’s account at the third party plan administrator. To the extent a Deferral Plan Election
is in place, settlement of the Restricted Stock Units shall be governed by the Deferral Plan Election. Notwithstanding anything in this
Restricted Stock Unit Agreement to the contrary, the Company shall have no obligation to issue or transfer any shares of Common Stock
as contemplated by this Restricted Stock Unit Agreement unless and until such issuance or transfer complies with all relevant provisions
of law and the requirements of any stock exchange on which the Company’s shares of Common Stock are listed for trading.
4. Treatment
of Restricted Stock Units Upon Termination. The provisions of Section 8(c)(ii) of the Plan are incorporated herein by reference
and made a part hereof; provided, however, that in the case of a Termination as a result of the Participant’s death,
unvested Restricted Stock Units will remain outstanding for one (1) month following the date of such Termination, but shall be eligible
to vest only to the extent the Committee determines, during such one (1) month period, to accelerate the vesting of such unvested
Restricted Stock Units, and if the Committee fails to make such determination, the unvested Restricted Stock Units will terminate without
further action at the end of such period.
5. Company;
Participant.
(a) The
term “Company” as used in this Restricted Stock Unit Agreement with reference to service shall include the Company and its
Subsidiaries.
(b) Whenever
the word “Participant” is used in any provision of this Restricted Stock Unit Agreement under circumstances where the provision
should logically be construed to apply to the executors, the administrators, or the person or persons to whom the Restricted Stock Units
may be transferred in accordance with Section 12(b) of the Plan, the word “Participant” shall be deemed to include
such person or person.
6. Non-Transferability.
The Restricted Stock Units are not transferable by the Participant except to Permitted Transferees in accordance with Section 12(b) of
the Plan. Except as otherwise provided herein, no assignment or transfer of the Restricted Stock Units, or of the rights represented
thereby, whether voluntary or involuntary, by operation of law or otherwise, shall vest in the assignee or transferee any interest or
right herein whatsoever, but immediately upon such assignment or transfer the Restricted Stock Units shall terminate and become of no
further effect.
7. Rights
as Shareholder. Subject to any dividend equivalent payments to be provided to the Participant in accordance with the Grant Notice
and Section 12(c)(iii) of the Plan, the Participant or a Permitted Transferee of the Restricted Stock Units shall have no rights
as a shareholder with respect to any share of Common Stock underlying a Restricted Stock Unit unless and until the Participant shall
have become the holder of record or the beneficial owner of such share of Common Stock, and no adjustment shall be made for dividends
or distributions or other rights in respect of such share of Common Stock for which the record date is prior to the date upon which the
Participant shall become the holder of record or the beneficial owner thereof.
8. Tax
Withholding. The provisions of Section 12(d) of the Plan are incorporated herein by reference and made a part hereof. Notwithstanding
the foregoing, the Participant acknowledges and agrees that to the extent consistent with applicable law and the Participant’s
status as an independent consultant for U.S. federal income tax purposes, the Company does not intend to withhold any amounts as federal
income tax withholdings under any other state or federal laws, and the Participant hereby agrees to make adequate provision for any sums
required to satisfy all applicable federal, state, local and foreign tax withholding obligations of the Company which may arise in connection
with the grant and/or vesting of Restricted Stock Units.
9. Notice.
Every notice or other communication relating to this Restricted Stock Unit Agreement between the Company and the Participant shall be
in writing, which may include by electronic mail, and shall be mailed to or delivered to the party for whom it is intended at such address
as may from time to time be designated by such party in a notice mailed or delivered to the other party as herein provided; provided
that, unless and until some other address be so designated, all notices or communications by the Participant to the Company shall
be mailed or delivered to the Company at its principal executive office, to the attention of the Company’s General Counsel or its
designee, and all notices or communications by the Company to the Participant may be given to the Participant personally or may be mailed
to the Participant at the Participant’s last known address, as reflected in the Company’s records. Notwithstanding the above,
all notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted
or sent in accordance with the procedures established by such third-party plan administrator and communicated to the Participant from
time to time.
10. No
Right to Continued Service. This Restricted Stock Unit Agreement does not confer upon the Participant any right to continue as a
director or other service provider to the Company.
11. Binding
Effect. This Restricted Stock Unit Agreement shall be binding upon the heirs, executors, administrators and successors of the parties
hereto.
12. Waiver
and Amendments. Except as otherwise set forth in Section 11 of the Plan, any waiver, alteration, amendment or modification of
any of the terms of this Restricted Stock Unit Agreement shall be valid only if made in writing and signed by the parties hereto; provided,
however, that any such waiver, alteration, amendment or modification is consented to on the Company’s behalf by the Committee.
No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent
occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
13. Clawback/Forfeiture.
Notwithstanding anything to the contrary contained herein or in the Plan, if the Participant has engaged in or engages in any Detrimental
Activity, then the Committee may, in its sole discretion, take actions permitted under the Plan, including: (a) canceling the Restricted
Stock Units, or (b) requiring that the Participant forfeit any gain realized upon the disposition of any shares of Common Stock
received in respect of the Restricted Stock Units, and repay such gain to the Company. In addition, if the Participant receives any amount
in excess of what the Participant should have received under the terms of this Restricted Stock Unit Agreement for any reason (including
without limitation by reason of a financial restatement, mistake in calculations or other administrative error), then the Participant
shall be required to repay any such excess amount to the Company. Without limiting the foregoing, all Restricted Stock Units shall be
subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with applicable law.
14. Governing
Law. This Restricted Stock Unit Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware,
without regard to the principles of conflicts of law thereof. Notwithstanding anything contained in this Restricted Stock Unit Agreement,
the Grant Notice or the Plan to the contrary, if any suit or claim is instituted by the Participant or the Company relating to this Restricted
Stock Unit Agreement, the Grant Notice or the Plan, the Participant hereby submits to the exclusive jurisdiction of and venue in the
courts of Delaware.
15. Plan.
The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency between the terms
and provisions of the Plan and the provisions of this Restricted Stock Unit Agreement (including the Grant Notice), the Plan shall govern
and control.
16. Section 409A.
It is intended that the Restricted Stock Units granted hereunder shall be exempt from Section 409A of the Code pursuant to the “short-term
deferral” rule applicable to such section, as set forth in the regulations or other guidance published by the Internal Revenue
Service thereunder.
17. Imposition
of Other Requirements. The Company reserves the right to impose other requirements on the Participant’s participation in the
Plan, on the Restricted Stock Units and on any shares of Common Stock acquired under the Plan, to the extent the Company determines it
is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings
that may be necessary to accomplish the foregoing.
18. Electronic
Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation
in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate
in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
19. Entire
Agreement. This Restricted Stock Unit Agreement, the Grant Notice and the Plan constitute the entire agreement of the parties hereto
in respect of the subject matter contained herein and supersede all prior agreements and understandings of the parties, oral and written,
with respect to such subject matter.
Exhibit 10.13
Final Form
TAX RECEIVABLE AGREEMENT
among
SNAP ONE HOLDINGS CORP.
and
THE PERSONS NAMED HEREIN
Dated as of [●], 2021
TABLE OF
CONTENTS
Page
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ARTICLE I DEFINITIONS
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1
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Section 1.1.
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Definitions
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1
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ARTICLE II DETERMINATION
OF CERTAIN REALIZED TAX BENEFIT
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8
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Section 2.1.
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Tax Benefit Schedule
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8
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Section 2.2.
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Procedures, Amendments
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9
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ARTICLE III TAX BENEFIT
PAYMENTS
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10
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Section 3.1.
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Payments
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10
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Section 3.2.
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No Duplicative Payments
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10
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Section 3.3.
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Pro Rata Payments
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11
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Section 3.4.
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Forfeited Escrow Funds Payments
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11
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ARTICLE IV TERMINATION
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11
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Section 4.1.
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Early Termination of Agreement; Breach of Agreement
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11
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Section 4.2.
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Early Termination Notice
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13
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Section 4.3.
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Payment upon Early Termination
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13
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Section 4.4.
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Termination
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14
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Section 4.5.
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Effectiveness
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14
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ARTICLE V SUBORDINATION AND LATE PAYMENTS
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14
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Section 5.1.
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Subordination
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14
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Section 5.2.
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Late Payments by the Corporate Taxpayer
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14
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ARTICLE VI NO DISPUTES;
CONSISTENCY; COOPERATION
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15
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Section 6.1.
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Participation in the Corporate Taxpayer’s Tax Matters
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15
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Section 6.2.
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Consistency
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15
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Section 6.3.
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Cooperation
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15
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ARTICLE VII MISCELLANEOUS
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16
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Section 7.1.
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Notices
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16
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Section 7.2.
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Counterparts
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16
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Section 7.3.
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Entire Agreement; Third Party Beneficiaries
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16
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Section 7.4.
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Governing Law
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16
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Section 7.5.
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Severability
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16
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Section 7.6.
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Successors; Assignment; Amendments; Waivers
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17
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Section 7.7.
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Titles and Subtitles
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18
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Section 7.8.
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Resolution of Disputes
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18
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Section 7.9.
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Reconciliation
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19
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Section 7.10.
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Withholding
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20
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Section 7.11.
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Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets
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20
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Section 7.12.
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Confidentiality
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21
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Section 7.13.
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TRA Party Representative
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21
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TAX RECEIVABLE AGREEMENT
This TAX RECEIVABLE AGREEMENT (this “Agreement”),
is dated as of [●], 2021, and is among Snap One Holdings Corp., a Delaware corporation (including any successor corporation, the
“Corporate Taxpayer”), Crackle Holdings, L.P., a Delaware limited partnership (the “Initial TRA
Party”), and each of the other persons from time to time that become a party hereto (each, excluding the Corporate Taxpayer,
a “TRA Party” and together the “TRA Parties”).
RECITALS
WHEREAS,
the income, gain, loss, expense and other Tax (as defined below) items of the Corporate Taxpayer may be affected by the Tax Benefits (as
defined below);
WHEREAS,
in connection with an initial public offering of the Corporate Taxpayer, the parties to this Agreement desire to make certain arrangements
with respect to the Tax Benefits and their effect on the Tax liability of Corporate Taxpayer;
WHEREAS,
following the execution of this Agreement, but prior to the IPO (as defined below), the Initial TRA Party will liquidate in accordance
with the terms of its limited partnership agreement and will distribute its rights under this Agreement to certain of its partners (the
“Initial TRA Party Distribution”), whereupon each such partner will become a TRA Party as an assignee;
WHEREAS,
following the Initial TRA Party Distribution, the Corporate Taxpayer intends to consummate the IPO.
NOW,
THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to
be legally bound hereby, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1. Definitions.
As used in this Agreement, the terms set forth in this Article I shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined).
“Actual Tax Liability”
means, with respect to any Taxable Year, the sum of (i) the actual liability for U.S. federal income Taxes of the Corporate Taxpayer
as reported on the Corporate Taxpayer Return and (ii) the product of the U.S. federal taxable income of the Corporate Taxpayer determined
in connection with clause (i) of this sentence and five percent (5%).
“Affiliate”
means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls,
is Controlled by, or is under common Control with, such first Person.
“Agreed
Rate” means a per annum rate of LIBOR plus 100 basis points.
“Agreement” is defined
in the Preamble to this Agreement.
“Amended
Schedule” is defined in Section 2.2(b) of this Agreement.
“Applicable Percentage”
means, in respect of any TRA Party, the percentage set forth opposite such TRA Party’s name on Schedule I hereto, as the same may
be updated from time to time in accordance with Section 7.6(a). Immediately following the Initial TRA Party Distribution, Schedule I shall
be updated such that the Applicable Percentage of each TRA Party will be a fraction expressed as a percentage equal to (x) the amount
of Common Stock directly held by such TRA Party immediately after the Initial TRA Party Distribution divided by (y) the sum of the amount
of Common Stock directly held by all TRA Parties immediately after the Initial TRA Party Distribution.
A “Beneficial Owner” of
a security is a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or
shares: (i) voting power, which includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power,
which includes the power to dispose of, or to direct the disposition of, such security. The terms “Beneficially Own”
and “Beneficial Ownership” shall have correlative meanings.
“Board” means the Board
of Directors of the Corporate Taxpayer.
“Business Day” means Monday
through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State
of New York shall not be regarded as a Business Day.
“Change of Control” means
the occurrence of any of the following events:
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(i)
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any Person or any group of Persons acting together that would constitute a “group” for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, or any successor provisions thereto (excluding (a) a corporation or other entity owned, directly
or indirectly, by the stockholders of the Corporate Taxpayer in substantially the same proportions as their ownership of stock of the
Corporate Taxpayer or (b) an H&F Party, any “group” for purposes of Section 13(d) of the Securities Exchange Act
of 1934, as amended (or any successor provisions thereto) that includes an H&F Party or Permitted Transferees or any Person more than
50% of the combined voting power of then outstanding voting securities of which are owned by an H&F Party or Permitted Transferees
or any such “group”) is or becomes the Beneficial Owner, directly or indirectly, of securities of the Corporate Taxpayer representing
more than 50% of the combined voting power of the Corporate Taxpayer’s then outstanding voting securities; or
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(ii)
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the following individuals cease for any reason to constitute a majority of the number of directors of the Corporate Taxpayer then
serving: individuals who, on the IPO Date, constitute the Board and any new director whose appointment or election by the Board or nomination
for election by the Corporate Taxpayer’s stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on the IPO Date or whose appointment, election or nomination for election was
previously so approved or recommended by the directors referred to in this clause (ii); or
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(iii)
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there is consummated a merger or consolidation of the Corporate Taxpayer with any other corporation or other entity, and, immediately
after the consummation of such merger or consolidation, either (x) the Board immediately prior to the merger or consolidation does not
constitute at least a majority of the board of directors of the company surviving the merger or consolidation or, if the surviving company
is a Subsidiary, the ultimate parent thereof, or (y) the voting securities of the Corporate Taxpayer immediately prior to such merger
or consolidation do not continue to represent or are not converted into more than 50% of the combined voting power of the then outstanding
voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary, the ultimate
parent thereof; or
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(iv)
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the stockholders of the Corporate Taxpayer approve a plan of complete liquidation or dissolution of the Corporate Taxpayer or there
is consummated an agreement or series of related agreements for the sale, lease or other disposition, directly or indirectly, by the Corporate
Taxpayer of all or substantially all of the Corporate Taxpayer’s assets, other than such sale or other disposition by the Corporate
Taxpayer of all or substantially all of the Corporate Taxpayer’s assets to an entity at least 50% of the combined voting power of
the voting securities of which are owned by stockholders of the Corporate Taxpayer in substantially the same proportions as their ownership
of the Corporate Taxpayer immediately prior to such sale.
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Notwithstanding the foregoing, except with respect to clause (ii) and
clause (iii)(x) above, a “Change of Control” shall not be deemed to have occurred by virtue of the consummation
of any transaction or series of integrated transactions immediately following which the record holders of the shares of the Corporate
Taxpayer immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership
in, and own substantially all of the shares of, an entity which owns, directly or indirectly, all or substantially all of the assets of
the Corporate Taxpayer immediately following such transaction or series of transactions. For purposes of this definition, “Permitted
Transferee” means with respect to any H&F Party, a transferee to whom such Permitted Investor has assigned an interest
in this Agreement in accordance with Section 7.6.
“Code” means the United
States Internal Revenue Code of 1986, as amended.
“Common Stock” means the
common stock, $0.01 par value per share, of the Corporate Taxpayer.
“Control” means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
“Corporate Taxpayer” is
defined in the Preamble to this Agreement; provided that the term “Corporate Taxpayer” shall include any company that
is a member of any consolidated tax return of which Snap One Holdings Corp. is the common parent, where appropriate.
“Corporate Taxpayer Return”
means the U.S. federal income Tax Return of the Corporate Taxpayer filed with respect to Taxes of any Taxable Year.
“Cumulative Realized Tax Benefit”
for a Taxable Year means the cumulative amount of Realized Tax Benefits for all Taxable Years of the Corporate Taxpayer, up to and including
such Taxable Year. The Realized Tax Benefit for each Taxable Year shall be determined based on the most recent Tax Benefit Schedules or
Amended Schedules, if any, in existence at the time of such determination; provided, that, for the avoidance of doubt, the computation
of the Cumulative Realized Tax Benefit shall be adjusted to reflect any applicable Determination with respect to any Realized Tax Benefits.
“Default Rate” means a
per annum rate of LIBOR plus 500 basis points.
“Determination” shall have
the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of state or local Tax law, as applicable, or any
other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability for Tax.
“Dispute” is defined in
Section 7.8(a) of this Agreement.
“Early Termination Date”
means the date of an Early Termination Notice for purposes of determining the Early Termination Payment.
“Early Termination Effective Date”
means the date on which an Early Termination Schedule becomes binding pursuant to Section 4.2.
“Early Termination Notice”
is defined in Section 4.2 of this Agreement.
“Early Termination Payment”
is defined in Section 4.3(b) of this Agreement.
“Early Termination Rate”
means the lesser of (i) 6.5% per annum, compounded annually, and (ii) LIBOR plus 200 basis points.
“Early Termination Schedule”
is defined in Section 4.2 of this Agreement.
“Escrow Agreement” means
the Escrow Agreement, dated as of [●], 2021, by and among the Corporate Taxpayer, the TRA Party Representative and Wilmington Trust,
National Association, as escrow agent.
“Exchange Agreement” means
each of the Exchange Acknowledgement and Agreements, dated as of [●], 2021, by and among the Corporate Taxpayer, the Initial TRA
Party, Crackle Holdings GP LLC and the respective management unitholders identified on the signature page attached thereto.
“Expert” is defined in
Section 7.9 of this Agreement.
“Forfeited Escrow Funds”
means Escrow Funds in respect of any Additional Payments (each as defined in the Escrow Agreement) that are forfeited in accordance with
the applicable Exchange Agreement and the Escrow Agreement.
“Future TRAs” is defined
in Section 5.1 of this Agreement.
“H&F Party” means any
TRA Party that is an Affiliate of Hellman & Friedman Capital Partners VIII, L.P., Hellman & Friedman LLC or any of their respective
Affiliates, investment funds or successors. For the avoidance of doubt, the Initial TRA Party is an H&F Party.
“Hypothetical Tax Liability”
means, with respect to any Taxable Year, the sum of (i) the liability for U.S. federal income Taxes of the Corporate Taxpayer using the
same methods, elections, conventions and similar practices used on the relevant Corporate Taxpayer Return and (ii) the product of the
U.S. federal taxable income of the Corporate Taxpayer determined in connection with clause (i) of this sentence and five percent (5%),
but calculated without taking into account the use of Tax Benefits, if any. For the avoidance of doubt, Hypothetical Tax Liability shall
be determined without taking into account the carryover or carryback of any Tax item (or portions thereof) that is attributable to the
Tax Benefits.
“Imputed Interest” means
any interest imputed under Section 1272, 1274 or 483 or other provision of the Code and any similar provision of state or local Tax law,
as applicable, with respect to the Corporate Taxpayer’s payment obligations under this Agreement.
“Initial TRA Party Distribution”
is defined in the Preamble to this Agreement
“Interest Amount” is defined
in Section 3.1(b) of this Agreement.
“IPO” means the initial
public offering of Common Stock by the Corporate Taxpayer.
“IPO Date” means the closing
date of the IPO.
“IPO Date Amortization”
means the amortization deductions with respect to “amortizable section 197 intangibles” as defined in Section 197(c) and (d)
of the Code, and the reduction of taxable income and gain attributable to existing tax basis in any such assets, that is held by the Corporate
Taxpayer or any of its Subsidiaries (including for this purpose any Person that will be a Subsidiary of the Corporate Taxpayer immediately
prior to the IPO Date) immediately prior to the IPO Date. Notwithstanding the foregoing, the term “IPO Date Amortization”
shall not include any Tax attribute that is used to offset Taxes of the Corporate Taxpayer, if such offset Taxes are attributable to taxable
periods (or portions thereof) ending immediately prior to the IPO Date.
“IRS” means the United
States Internal Revenue Service.
“LIBOR” means during any
period, the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which U.S.
dollar deposits are offered by leading banks in the London interbank deposit market or such other commercially available source providing
quotations of such rates as may be designated by the Corporate Taxpayer from time to time), or the rate which is quoted by another source
selected by the Corporate Taxpayer as an authorized information vendor for the purpose of displaying rates at which U.S. dollar deposits
are offered by leading banks in the London interbank deposit market (an “Alternate Source”), at approximately
11:00 a.m., London time, two (2) Business Days prior to the first day of such period as the London interbank offered rate for U.S. dollars
having a borrowing date and a maturity comparable to such period (or if there shall at any time, for any reason, no longer exist a Bloomberg
Page BBAM1 (or any substitute page) or any LIBOR Alternate Source, a comparable replacement rate determined by the Corporate Taxpayer
and the TRA Party Representative at such time, which determination shall be conclusive absent manifest error); provided, that at
no time shall LIBOR be less than 0%. If the Corporate Taxpayer has made the determination (such determination to be conclusive absent
manifest error) that (i) LIBOR is no longer a widely recognized benchmark rate for newly originated loans in the U.S. loan market in U.S.
dollars or (ii) the applicable supervisor or administrator (if any) of LIBOR has made a public statement identifying a specific date after
which LIBOR shall no longer be used for determining interest rates for loans in the U.S. loan market in U.S. dollars, then the Corporate
Taxpayer and the TRA Party Representative shall (as determined by the Corporate Taxpayer and the TRA Party Representative to be consistent
with market practice generally), establish a replacement interest rate (the “Replacement Rate”), in which case,
the Replacement Rate shall, subject to the next two sentences, replace LIBOR for all purposes under this Agreement. In connection with
the establishment and application of the Replacement Rate, this Agreement shall be amended solely with the consent of the Corporate Taxpayer
and the TRA Party Representative, as may be necessary or appropriate, in the reasonable judgment of the Corporate Taxpayer and the TRA
Party Representative, to effect the provisions of this section. The Replacement Rate shall be applied in a manner consistent with market
practice; provided, that in each case, to the extent such market practice is not administratively feasible for the Corporate Taxpayer,
such Replacement Rate shall be applied as otherwise reasonably determined by the Corporate Taxpayer and the TRA Party Representative.
“Material Objection Notice”
is defined in Section 4.2 of this Agreement.
“Net Tax Benefit” is defined
in Section 3.1(b) of this Agreement.
“NOLs” means, without duplication,
the United States federal net operating losses, capital losses, research and development credits, excess Section 163(j) limitation carryforwards
and any United States federal tax attributes subject to carryforward under Section 381 of the Code of the Corporate Taxpayer or its Subsidiaries
relating to taxable periods ending on or before the IPO Date.
“Objection Notice” is defined
in Section 2.2(a) of this Agreement.
“Person” means any individual,
corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental
entity or other entity.
“Realized Tax Benefit”
means, for a Taxable Year, the excess, if any, of the Hypothetical Tax Liability over the Actual Tax Liability of the Corporate Taxpayer.
If all or a portion of the Actual Tax Liability for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable
Year, such liability shall not be included in determining the Realized Tax Benefit unless and until there has been a Determination.
“Reconciliation Dispute”
is defined in Section 7.9 of this Agreement.
“Reconciliation Procedures”
is defined in Section 2.2(a) of this Agreement.
“Schedule” means any of:
(i) a Tax Benefit Schedule or (ii) the Early Termination Schedule.
“Senior Obligations” is
defined in Section 5.1 of this Agreement.
“Subsidiaries” means, with
respect to any Person, as of any date of determination, any other Person as to which such Person, owns, directly or indirectly, or otherwise
controls more than 50% of the voting power or other similar interests or the sole general partner interest or managing member or similar
interest of such Person.
“TRA Party” is defined
in the Preamble to this Agreement.
“TRA Party Representative”
means H&F Copper Holdings VIII, L.P., a Delaware Limited Partnership.
“Tax
Benefits” means the NOLs, IPO Date Amortization and any tax deductions attributable to (i) payments made under this
Agreement or (ii) Imputed Interest.
“Tax Benefit Payment” is
defined in Section 3.1(b) of this Agreement.
“Tax Benefit Schedule”
is defined in Section 2.2(a) of this Agreement.
“Tax Return” means any
return, declaration, report or similar statement required to be filed with respect to Taxes (including any attached schedules), including,
without limitation, any information return, claim for refund, amended return and declaration of estimated Tax.
“Taxable Year” means a
taxable year of the Corporate Taxpayer as defined in Section 441(b) of the Code or comparable section of state or local Tax law, as applicable
(and, therefore, for the avoidance of doubt, may include a period of less than 12 months for which a Tax Return is made), ending on or
after the IPO Date.
“Taxes” means any and all
United States federal, state and local taxes, assessments or similar charges that are based on or measured with respect to net income
or profits, and any interest related to such Tax.
“Taxing Authority” means
any domestic, federal, national, state, county or municipal or other local government, any subdivision, agency, commission or authority
thereof, or any quasi-governmental body exercising any taxing authority or any other authority exercising Tax regulatory authority.
“Treasury Regulations”
means the final, temporary and proposed regulations under the Code promulgated from time to time (including corresponding provisions and
succeeding provisions) as in effect for the relevant taxable period.
“Valuation Assumptions”
shall mean, as of an Early Termination Date, the assumptions that in each Taxable Year ending on or after such Early Termination Date,
(1) the Corporate Taxpayer will have taxable income sufficient to fully utilize any Tax Benefit (subject to the assumptions in clause
(2) below) during the Taxable Year (including, for the avoidance of doubt, tax deductions attributable to future payments made under this
Agreement, or Imputed Interest attributable to such future payments, that would be paid in accordance with the Valuation Assumptions)
in which such deductions would become available, (2) any NOLs or loss carryovers generated by deductions arising from any Tax Benefit
that are available as of the date of such Early Termination Date will be used by the Corporate Taxpayer on a pro rata basis from the date
of such Early Termination Date through the earlier of (x) the scheduled expiration date under applicable Tax law of such NOLs or loss
carryovers or (y) the fifth (5th) anniversary of the Early Termination Date, (3) the utilization of the Tax Benefits for such Taxable
Year or future Taxable Years, as applicable, will be determined based on the Tax laws in effect on the Early Termination Date and (4)
the United States federal income tax rates that will be in effect for each such Taxable Year will be those specified for each such Taxable
Year by the Code and other law as in effect on the Early Termination Date.
ARTICLE
II
DETERMINATION OF CERTAIN REALIZED TAX BENEFIT
Section
2.1. Tax Benefit Schedule.
(a)
Tax Benefit Schedule. Within ninety (90) calendar days after the filing of the United States federal income tax return of
the Corporate Taxpayer for any Taxable Year in which there is a Realized Tax Benefit, the Corporate Taxpayer shall provide to the TRA
Party Representative a schedule showing, in reasonable detail, the calculation of the Tax Benefit Payments to be made to each TRA Party
for such Taxable Year (a “Tax Benefit Schedule”). Each Tax Benefit Schedule will become final as provided in
Section 2.2(a) and may be amended as provided in Section 2.2(b) (subject to the procedures set forth in Section 2.2(b)).
(b)
Applicable Principles. Subject to Section 3.3(a), the Realized Tax Benefit for each Taxable Year is intended to measure
the decrease in the actual liability for U.S. federal income Taxes, and to approximate the decrease in the actual liability for U.S. state
and local income Taxes, of the Corporate Taxpayer for such Taxable Year attributable to the Tax Benefits, determined using a “with
and without” methodology. Carryovers or carrybacks of any Tax item attributable to the Tax Benefits shall be considered to be subject
to the rules of the Code and the Treasury Regulations, as applicable, governing the use, limitation and expiration of carryovers or carrybacks
of the relevant type. If a carryover or carryback of any Tax item includes a portion that is attributable to the Tax Benefits and another
portion that is not, such portions shall be considered to be used in accordance with the “with and without” methodology.
Section
2.2. Procedures, Amendments.
(a)
Procedure. Every time the Corporate Taxpayer delivers to the TRA Party Representative an applicable Schedule under this
Agreement, including any Amended Schedule delivered pursuant to Section 2.2(b), the Corporate Taxpayer shall also (x) deliver to the TRA
Party Representative supporting schedules and work papers, as determined by the Corporate Taxpayer or as reasonably requested by the TRA
Party Representative, providing reasonable detail regarding data and calculations that were relevant for purposes of preparing the Schedule
and (y) allow the TRA Party Representative reasonable access at no cost to the appropriate representatives at the Corporate Taxpayer,
as determined by the Corporate Taxpayer or as reasonably requested by the TRA Party Representative, in connection with a review of such
Schedule. Without limiting the generality of the preceding sentence, the Corporate Taxpayer shall ensure that any Tax Benefit Schedule
that is delivered to the TRA Party Representative, along with any supporting schedules and work papers, provides a reasonably detailed
presentation of the calculation of the Actual Tax Liability of the Corporate Taxpayer and the Hypothetical Tax Liability, and identifies
any material assumptions or operating procedures or principles that were used for purposes of such calculations. An applicable Schedule
or amendment thereto shall become final and binding on all parties thirty (30) calendar days from the date on which the TRA Party Representative
is treated as having received the applicable Schedule or amendment thereto under Section 7.1 unless the TRA Party Representative (i) within
thirty (30) calendar days from such date provides the Corporate Taxpayer with notice of a material objection to such Schedule (“Objection
Notice”) made in good faith or (ii) provides a written waiver of such right of any Objection Notice within the period
described in clause (i) above, in which case such Schedule or amendment thereto becomes binding on the date the waiver is received by
the Corporate Taxpayer. If the Corporate Taxpayer and the TRA Party Representative, for any reason, are unable to successfully resolve
the issues raised in the Objection Notice within thirty (30) calendar days after receipt by the Corporate Taxpayer of an Objection Notice,
the Corporate Taxpayer and the TRA Party Representative shall employ the reconciliation procedures as described in Section 7.9 of this
Agreement (the “Reconciliation Procedures”). The TRA Party Representative will fairly represent the interests
of each of the TRA Parties and shall use reasonable efforts to timely raise and pursue, in accordance with this Section 2.2(a), any reasonable
objection to a Schedule or amendment thereto timely communicated in writing to the TRA Party Representative by a TRA Party.
(b)
Amended Schedule. The applicable Schedule for any Taxable Year may be amended from time to time by the Corporate Taxpayer
(i) in connection with a Determination affecting such Schedule, (ii) to correct inaccuracies in the Schedule identified as a result of
the receipt of additional factual information relating to a Taxable Year after the date the Schedule was provided to the TRA Party Representative,
(iii) to comply with the Expert’s determination under the Reconciliation Procedures, (iv) to reflect a change in the Realized Tax
Benefit for such Taxable Year attributable to a carryback or carryforward of a loss or other tax item to such Taxable Year, or (v) to
reflect a change in the Realized Tax Benefit for such Taxable Year attributable to an amended Tax Return filed for such Taxable Year (any
such Schedule, an “Amended Schedule”). The Corporate Taxpayer shall provide an Amended Schedule to each TRA
Party within ninety (90) calendar days of the occurrence of an event referenced in clauses (i) through (v) of the preceding sentence.
ARTICLE
III
TAX BENEFIT PAYMENTS
Section
3.1. Payments.
(a)
Payments. Within five (5) Business Days after a Tax Benefit Schedule delivered to the TRA Party Representative becomes final
in accordance with Section 2.1(a), the Corporate Taxpayer shall pay to each TRA Party for such Taxable Year the Tax Benefit Payment in
respect of such TRA Party determined pursuant to Section 3.1(b). Each such Tax Benefit Payment shall be made by wire transfer of immediately
available funds to the bank account previously designated by such TRA Party to the Corporate Taxpayer or as otherwise agreed by the Corporate
Taxpayer and such TRA Party or, in the absence of such designation or agreement, by check mailed to the last mailing address provided
by such TRA Party to the Corporate Taxpayer. For the avoidance of doubt, no Tax Benefit Payment shall be made in respect of estimated
Tax payments, including, without limitation, federal estimated income Tax payments.
(b)
A “Tax Benefit Payment” in respect of a TRA Party for a Taxable Year means an amount, not less than zero,
equal to the sum of such TRA Party’s Applicable Percentage of the Net Tax Benefit and the Interest Amount with respect thereto.
For the avoidance of doubt, for Tax purposes, the Interest Amount shall not be treated as interest but instead shall be treated as additional
consideration in the applicable transaction, unless otherwise required by law. The “Net Tax Benefit” for a Taxable
Year shall be an amount equal to the excess, if any, of 85% of the Cumulative Realized Tax Benefit as of the end of such Taxable Year,
over the total amount of payments previously made under Section 3.1(a) (excluding payments attributable to Interest Amounts); provided,
for the avoidance of doubt, that no such recipient shall be required to return any portion of any previously made Tax Benefit Payment.
The “Interest Amount” shall equal the interest on the Net Tax Benefit calculated at the Agreed Rate from the
due date (without extensions) for filing the Corporate Taxpayer Return with respect to Taxes for such Taxable Year until the payment date
under Section 3.1(a).
Section
3.2. No Duplicative Payments.
It is intended that the provisions of this Agreement will not result in duplicative payment of any amount (including interest) required
under this Agreement. The provisions of this Agreement shall be construed in the appropriate manner to ensure such intentions are realized.
Section
3.3. Pro Rata Payments.
(a)
Notwithstanding anything in Section 3.1 to the contrary, to the extent that the aggregate Tax benefit of the Corporate Taxpayer
with respect to the Tax Benefits is limited in a particular Taxable Year because the Corporate Taxpayer does not have sufficient taxable
income, the Net Tax Benefit for the Corporate Taxpayer shall be allocated among all parties eligible for a Tax Benefit Payment under this
Agreement in proportion to the amounts of Net Tax Benefit that would have been allocated to each party if the Corporate Taxpayer had sufficient
taxable income so that there were no such limitation.
(b)
If for any reason the Corporate Taxpayer does not fully satisfy its payment obligations to make all Tax Benefit Payments due under
this Agreement in respect of a particular Taxable Year, then the Corporate Taxpayer and the TRA Parties agree that (i) Tax Benefit Payments
for such Taxable Year shall be allocated to all parties eligible to receive Tax Benefit Payments under this Agreement in such Taxable
Year in proportion to the amounts of Tax Benefit Payments, respectively, that would have been made to each TRA Party if the Corporate
Taxpayer had sufficient cash available to make such Tax Benefit Payments and (ii) prior to making any Tax Benefit Payments in respect
of any Taxable Year, all Tax Benefit Payments to all TRA Parties in respect of all prior Taxable Years shall be made in full; provided,
however, that any payments that were previously held by the Corporate Taxpayer on behalf of a TRA Party and have now become due
and payable pursuant to Section 3.4 shall be made prior to any other Tax Benefit Payments.
Section
3.4. Forfeited Escrow Funds Payments.
Within five (5) Business Days of the end of the quarter following the forfeiture of any Forfeited Escrow Funds pursuant to the
applicable Exchange Agreement and the Escrow Agreement, such funds shall be promptly distributed by the Escrow Agent (as defined in the
Escrow Agreement) to the TRA Parties pro rata (based on their respective Applicable Percentages). Such payments shall be made pursuant
to the terms and conditions set forth in the Escrow Agreement. The Corporate Taxpayer and the TRA Party Representative agree to take such
action as is necessary under the Escrow Agreement or any other agreement to effectuate the foregoing.
ARTICLE
IV
TERMINATION
Section
4.1. Early Termination of Agreement; Breach of Agreement.
(a)
The Corporate Taxpayer may terminate this Agreement at any time with respect to all amounts payable to the TRA Parties by paying
to each TRA Party the Early Termination Payment in respect of such TRA Party; provided, however, that this Agreement shall
only terminate upon the receipt of the Early Termination Payment by all of the TRA Parties, and provided, further, that
the Corporate Taxpayer may withdraw any notice to execute its termination rights under this Section 4.1(a) prior to the time at which
any Early Termination Payment has been paid. Upon payment of the Early Termination Payment in respect of each TRA Party by the Corporate
Taxpayer, the Corporate Taxpayer shall have no further payment obligations under this Agreement, other than for any (i) Tax Benefit Payment
due and payable and that remains unpaid as of the date the Early Termination Notice is delivered and (ii) Tax Benefit Payment due for
the Taxable Year ending with or including the date of the Early Termination Notice (except to the extent that the amount described in
this clause (ii) is included in the Early Termination Payment).
(b)
In the event that (1) the Corporate Taxpayer breaches any of its material obligations under this Agreement, whether as a result
of failure to make any payment when due, failure to honor any other material obligation required hereunder, or by operation of law as
a result of the rejection of this Agreement in a case commenced under the Bankruptcy Code or otherwise or (2) (A) the Corporate Taxpayer
shall commence any case, proceeding or other action (i) under any existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts or (ii) seeking an appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or it shall make a general assignment for the benefit of creditors
or (B) there shall be commenced against the Corporate Taxpayer any case, proceeding or other action of the nature referred to in clause
(A) above that remains undismissed or undischarged for a period of sixty (60) calendar days, all obligations hereunder shall be automatically
accelerated and shall be immediately due and payable, and such obligations shall be calculated as if an Early Termination Notice had been
delivered on the date of such event and shall include, but not be limited to, (x) the Early Termination Payments calculated as if an Early
Termination Notice had been delivered on such date, (y) any Tax Benefit Payment due and payable and that remains unpaid as of such date
and (z) any Tax Benefit Payment due for the Taxable Year ending with or including such date; provided that procedures similar to
the procedures of Section 4.2 and 4.3 shall apply with respect to the determination of the amount payable by the Corporate Taxpayer pursuant
to this sentence mutatis mutandis. Notwithstanding the foregoing, (other than as set forth in subsection (2) above), in the event
that the Corporate Taxpayer breaches this Agreement, each TRA Party shall be entitled to elect to receive the amounts set forth in clauses
(x), (y) and (z) above or to seek specific performance of the terms hereof. The parties agree that the failure to make any payment due
pursuant to this Agreement within three (3) months of the date such payment is due shall be deemed to be a breach of a material obligation
under this Agreement for all purposes of this Agreement, and that it will not be considered to be a breach of a material obligation under
this Agreement to make a payment due pursuant to this Agreement within three months of the date such payment is due. Notwithstanding anything
in this Agreement to the contrary, it shall not be a breach of a material obligation of this Agreement if the Corporate Taxpayer fails
to make any Tax Benefit Payment when due to the extent that the Corporate Taxpayer has insufficient funds to make such payment; provided
that the interest provisions of Section 5.2 shall apply to such late payment (unless the Corporate Taxpayer does not have sufficient cash
to make such payment as a result of limitations imposed by any Senior Obligations, in which case Section 5.2 shall apply, but the Default
Rate shall be replaced by the Agreed Rate).
(c)
In the event of a Change of Control, then all obligations hereunder shall be automatically accelerated and shall be immediately
due and payable, and such obligations shall be calculated as if an Early Termination Notice had been delivered on the date of such Change
of Control and utilizing the Valuation Assumptions by substituting in each case the terms “the closing date of a Change of Control”
in each place where the phrase “Early Termination Date” appears. Such obligations shall include, but not be limited to, (1)
the Early Termination Payments calculated as if an Early Termination Notice had been delivered on such date, (2) any Tax Benefit Payment
due and payable and that remains unpaid as of such date and (3) any Tax Benefit Payment due for the Taxable Year ending with or including
such date; provided that procedures similar to the procedures of Section 4.2 and 4.3 shall apply with respect to a Change of Control,
mutatis mutandis.
Section
4.2. Early Termination Notice.
If the Corporate Taxpayer chooses to exercise its right of early termination under Section 4.1(a) above, the Corporate Taxpayer shall
deliver to the TRA Party Representative notice of such intention to exercise such right (“Early Termination Notice”)
and a schedule (“Early Termination Schedule”) specifying the Corporate Taxpayer’s intention to exercise
such right and showing in reasonable detail the calculation of the Early Termination Payment for each TRA Party. The Early Termination
Schedule shall become final and binding on all parties thirty (30) calendar days from the first date on which the TRA Party Representative
is treated as having received such Schedule or amendment thereto under Section 7.1 unless the TRA Party Representative (i) within thirty
(30) calendar days after such date provides the Corporate Taxpayer with notice of a material objection to such Schedule made in good faith
(“Material Objection Notice”) or (ii) provides a written waiver of such right of a Material Objection Notice
within the period described in clause (i) above, in which case such Schedule becomes binding on the date the waiver is received by the
Corporate Taxpayer. If the Corporate Taxpayer and the TRA Party Representative, for any reason, are unable to successfully resolve the
issues raised in such notice within thirty (30) calendar days after receipt by the Corporate Taxpayer of the Material Objection Notice,
the Corporate Taxpayer and the TRA Party Representative shall employ the Reconciliation Procedures in which case such Schedule becomes
binding ten (10) days after the conclusion of the Reconciliation Procedures. The TRA Party Representative will fairly represent the interests
of each TRA Party and shall timely raise and pursue, in accordance with this Section 4.2, any reasonable objection to an Early Termination
Schedule or amendment thereto timely communicated in writing to the TRA Party Representative by a TRA Party.
Section
4.3. Payment upon Early Termination.
(a)
Within five (5) Business Days after an Early Termination Effective Date, the Corporate Taxpayer shall pay to each TRA Party an
amount equal to the Early Termination Payment in respect of such TRA Party. Such payment shall be made by wire transfer of immediately
available funds to a bank account or accounts designated by such TRA Party or as otherwise agreed by the Corporate Taxpayer and such TRA
Party or, in the absence of such designation or agreement, by check mailed to the last mailing address provided by such TRA Party to the
Corporate Taxpayer.
(b)
The “Early Termination Payment” in respect of a TRA Party shall equal such TRA Party’s Applicable
Percentage of the present value, discounted at the Early Termination Rate as of the applicable Early Termination Effective Date, of the
Tax Benefit Payments that would be required to be paid by the Corporate Taxpayer to such TRA Party beginning from the Early Termination
Date and assuming that the Valuation Assumptions in respect of such TRA Party are applied and that each Tax Benefit Payment for the relevant
Taxable Year would be due and payable on the due date (without extensions) under applicable law as of the Early Termination Effective
Date for filing the Corporate Taxpayer Return.
Section
4.4. Termination.
This Agreement shall be considered terminated on the date on which all Tax Benefit Payments have been made under this Agreement.
Section
4.5. Effectiveness.
This Agreement shall be effective as of the IPO Date.
ARTICLE
V
SUBORDINATION AND LATE PAYMENTS
Section
5.1. Subordination.
Notwithstanding any other provision of this Agreement to the contrary, any Tax Benefit Payment or Early Termination Payment required to
be made by the Corporate Taxpayer to the TRA Parties under this Agreement shall rank subordinate and junior in right of payment to any
principal, interest or other amounts due and payable in respect of any obligations in respect of indebtedness for borrowed money of the
Corporate Taxpayer and its Subsidiaries (“Senior Obligations”) and shall rank pari passu in right of payment
with all current or future unsecured obligations of the Corporate Taxpayer that are not Senior Obligations. To the extent that any payment
under this Agreement is not permitted to be made at the time payment is due as a result of this Section 5.1 and the terms of agreements
governing Senior Obligations, such payment obligation nevertheless shall accrue for the benefit of the TRA Parties and the Corporate Taxpayer
shall make such payments at the first opportunity that such payments are permitted to be made in accordance with the terms of the Senior
Obligations. Notwithstanding any other provision of this Agreement to the contrary, to the extent that the Corporate Taxpayer or any of
its Affiliates enters into future Tax receivable or other similar agreements (“Future TRAs”), the Corporate
Taxpayer shall ensure that the terms of any such Future TRA shall provide that the Tax Benefits subject to this Agreement are considered
senior in priority to any Tax benefits subject to any such Future TRA for purposes of calculating the amount and timing of payments under
any such Future TRA.
Section
5.2. Late Payments by the Corporate Taxpayer.
The amount of all or any portion of any Tax Benefit Payment or Early Termination Payment not made to the TRA Parties when due under the
terms of this Agreement, whether as a result of Section 5.1 or otherwise, shall be payable together with any interest thereon, computed
at the Default Rate and commencing from the date on which such Tax Benefit Payment or Early Termination Payment was first due and payable
until, but not including, the date of actual payment.
ARTICLE
VI
NO DISPUTES; CONSISTENCY; COOPERATION
Section
6.1. Participation in the Corporate Taxpayer’s Tax Matters.
Except as otherwise provided herein, the Corporate Taxpayer shall have full responsibility for, and sole discretion over, all Tax matters
concerning the Corporate Taxpayer, including without limitation the preparation, filing or amending of any Tax Return and defending, contesting
or settling any issue pertaining to Taxes. Notwithstanding the foregoing, the Corporate Taxpayer shall notify the TRA Party Representative
of, and keep the TRA Party Representative reasonably informed with respect to, the portion of any audit of the Corporate Taxpayer by a
Taxing Authority the outcome of which is reasonably expected to materially affect the rights and obligations of any TRA Party under this
Agreement, and shall provide to the TRA Party Representative reasonable opportunity to provide information and other input to the Corporate
Taxpayer and its advisors concerning the conduct of any such portion of such audit.
Section
6.2. Consistency.
The Corporate Taxpayer and the TRA Parties agree to report and cause to be reported for all purposes, including federal, state and local
Tax purposes and financial reporting purposes, all Tax-related items (including, without limitation, each Tax Benefit Payment) in a manner
consistent with that contemplated by this Agreement or specified by the Corporate Taxpayer in any Schedule required to be provided by
or on behalf of the Corporate Taxpayer under this Agreement unless otherwise required by law. The Corporate Taxpayer shall (and shall
cause its Subsidiaries to) use reasonable efforts (for the avoidance of doubt, taking into account the interests and entitlements of all
of the TRA Parties under this Agreement) to defend the Tax treatment contemplated by this Agreement and any Schedule in any audit, contest
or similar proceeding with any Taxing Authority.
Section
6.3. Cooperation.
The TRA Party Representative, on behalf of each TRA Party, agrees to (a) furnish to the Corporate Taxpayer in a timely manner such information,
documents and other materials as the Corporate Taxpayer may reasonably request for purposes of making any determination or computation
necessary or appropriate under this Agreement, preparing any Tax Return or contesting or defending any audit, examination or controversy
with any Taxing Authority, (b) make itself available to the Corporate Taxpayer and its representatives to provide explanations of documents
and materials and such other information as the Corporate Taxpayer or its representatives may reasonably request in connection with any
of the matters described in clause (a) above and (c) reasonably cooperate in connection with any such matter, and the Corporate Taxpayer
shall reimburse the TRA Party Representative for any reasonable and documented out-of-pocket costs and expenses incurred pursuant to this
Section. Upon the request of the TRA Party Representative, the Corporate Taxpayer shall cooperate in taking any action reasonably requested
by the TRA Party Representative in connection with any TRA Party’s tax or financial reporting and/or the consummation of any assignment
or transfer of any TRA Party’s rights and/or obligations under this Agreement, including without limitation, providing any information
or executing any documentation.
ARTICLE
VII
MISCELLANEOUS
Section
7.1. Notices.
All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed duly given and received
(a) on the date of delivery if delivered personally, or by facsimile or email with confirmation of transmission by the transmitting equipment
or (b) on the first Business Day following the date of dispatch if delivered by a recognized next-day courier service. All notices hereunder
shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive
such notice:
If to the Corporate Taxpayer to:
[●]
If to the TRA Party Representative, to:
[●]
Any party may change its address, fax number or email by giving the
other party written notice of its new address, fax number or email in the manner set forth above. Notice to any TRA Party shall be delivered
to the last mailing address provided by such TRA Party to the Corporate Taxpayer.
Section
7.2. Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood
that all parties need not sign the same counterpart. Delivery of an executed signature page to this Agreement by facsimile transmission
shall be as effective as delivery of a manually signed counterpart of this Agreement.
Section
7.3. Entire Agreement; Third Party Beneficiaries.
This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof. This Agreement shall be binding upon and inure solely to the benefit of each party
hereto and their respective successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall
confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section
7.4. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the law of the State of Delaware.
Section
7.5. Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Section
7.6. Successors; Assignment; Amendments; Waivers.
(a)
Each TRA Party may assign any of its rights under this Agreement to any Person so long as such transferee has executed and delivered,
or, in connection with such transfer, executes and delivers, a joinder to this Agreement, substantially similar in form and substance
to Exhibit A hereto, agreeing to become a TRA Party for all purposes of this Agreement, except as otherwise provided in such joinder;
provided, that, if any H&F Party (an “Assigning H&F Party”) proposes to transfer and/or assign
any of its rights under this Agreement to any Person (other than another H&F Party or Permitted Assignee thereof), then (i) such
Assigning H&F Party shall have the right to require each TRA Party (other than the H&F Parties) to transfer and/or assign to such
Person an equivalent proportion of such TRA Party’s rights under this Agreement on the same economic terms and conditions as such
Assigning H&F Party, following reasonable advance notice delivered by such Assigning H&F Party to each such TRA Party containing
the material terms and conditions (to the extent reasonably determinable) with respect to such transfer and/or assignment and (ii) in
the event that such H&F Assigning Party does not exercise its rights pursuant to the foregoing clause (i), such H&F Assigning
Party shall provide each TRA Party (other than the H&F Parties) with the right to transfer or assign to such Person an equivalent
proportion of such TRA Party’s rights under this Agreement on the same economic terms and conditions as the Assigning Party, exercisable
by such TRA Party within five (5) Business Days following reasonable advance notice delivered by such Assigning H&F Party to each
such TRA Party containing the material terms and conditions (to the extent reasonably determinable) with respect to such transfer and/or
assignment, in each case of the foregoing clauses (i) and (ii), (x) with such transfer and/or assignment being effectuated pursuant to
such procedures and documentation as the TRA Party Representative shall reasonably determine and (y) each TRA Party shall cooperate with
the TRA Party Representative and the applicable Assigning H&F Party in connection therewith (including taking or causing to be taken
all such actions as the TRA Party Representative or such H&F Assigning Party deems to be reasonably necessary or appropriate in order
to consummate expeditiously such transfer and/or assignment).In connection with any such assignment, the Corporate Taxpayer shall update
Schedule I to reflect the Applicable Percentage of the assignor and assignee.
(b)
No provision of this Agreement may be amended unless such amendment is approved in writing by each of the Corporate Taxpayer and
by the TRA Parties who would be entitled to receive at least two-thirds of the total amount of the Early Termination Payments payable
to all TRA Parties hereunder if the Corporate Taxpayer had exercised its right of early termination, including the TRA Party Representative;
provided, that no such amendment shall be effective if such amendment will have a disproportionate effect on the payments one or
more TRA Parties receive under this Agreement unless such amendment is consented in writing by such TRA Parties disproportionately affected
who would be entitled to receive at least two-thirds of the total amount of the Early Termination Payments payable to all TRA Parties
disproportionately affected hereunder if the Corporate Taxpayer had exercised its right of early termination. No provision of this Agreement
may be waived unless such waiver is in writing and signed by the party against whom the waiver is to be effective. For clarity, updates
to Schedule I contemplated by Section 7.6(a) shall not be considered an amendment for purposes of this Section 7.6(b).
(c)
All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable
by the parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives. The Corporate
Taxpayer shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporate Taxpayer by written agreement, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporate Taxpayer would be required to perform if no such succession had
taken place.
Section
7.7. Titles and Subtitles.
The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing
this Agreement.
Section
7.8. Resolution of Disputes.
(a)
Any and all disputes which are not governed by Section 7.9 and cannot be settled amicably, including any ancillary claims of any
party, arising out of, relating to or in connection with the validity, negotiation, execution, interpretation, performance or nonperformance
of this Agreement (including the validity, scope and enforceability of this arbitration provision) (each, a “Dispute”)
shall be finally settled by arbitration conducted by a single arbitrator in Delaware in accordance with the then-existing Rules of Arbitration
of the International Chamber of Commerce. If the parties to the Dispute fail to agree on the selection of an arbitrator within thirty
(30) calendar days of the receipt of the request for arbitration, the International Chamber of Commerce shall make the appointment. The
arbitrator shall be a lawyer admitted to the practice of law in the State of Delaware and shall conduct the proceedings in the English
language. Performance under this Agreement shall continue if reasonably possible during any arbitration proceedings.
(b)
Notwithstanding the provisions of paragraph (a), the Corporate Taxpayer may bring an action or special proceeding in any court
of competent jurisdiction for the purpose of compelling a party to arbitrate, seeking temporary or preliminary relief in aid of an arbitration
hereunder, and/or enforcing an arbitration award and, for the purposes of this paragraph (b), each TRA Party (i) expressly consents to
the application of paragraph (c) of this Section 7.8 to any such action or proceeding, (ii) agrees that proof shall not be required that
monetary damages for breach of the provisions of this Agreement would be difficult to calculate and that remedies at law would be inadequate
and (iii) irrevocably appoints the Corporate Taxpayer as agent of such TRA Party for service of process in connection with any such action
or proceeding and agrees that service of process upon such agent, who shall promptly advise the TRA Party of any such service of process,
shall be deemed in every respect effective service of process upon the TRA Party in any such action or proceeding.
(c)
(i) EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF COURTS LOCATED IN THE STATE OF DELAWARE FOR THE PURPOSE OF ANY
JUDICIAL PROCEEDING BROUGHT IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.8, OR ANY JUDICIAL PROCEEDING ANCILLARY TO AN ARBITRATION
OR CONTEMPLATED ARBITRATION ARISING OUT OF OR RELATING TO OR CONCERNING THIS AGREEMENT. Such ancillary judicial proceedings include any
suit, action or proceeding to compel arbitration, to obtain temporary or preliminary judicial relief in aid of arbitration, or to confirm
an arbitration award. The parties acknowledge that the fora designated by this paragraph (c) have a reasonable relation to this Agreement,
and to the parties’ relationship with one another; and
(ii)
The parties hereby waive, to the fullest extent permitted by applicable law, any objection which they now or hereafter may have
to personal jurisdiction or to the laying of venue of any such ancillary suit, action or proceeding brought in any court referred to in
the preceding paragraph of this Section 7.8 and such parties agree not to plead or claim the same.
Section
7.9. Reconciliation.
In the event that the Corporate Taxpayer and the TRA Party Representative are unable to resolve a disagreement with respect to the matters
governed by Sections 2.2 and 4.2 within the relevant period designated in this Agreement (“Reconciliation Dispute”),
the Reconciliation Dispute shall be submitted for determination to a nationally recognized expert (the “Expert”)
in the particular area of disagreement mutually acceptable to both parties. The Expert shall be a partner or principal in a nationally
recognized accounting or law firm, and unless the Corporate Taxpayer and the TRA Party Representative agree otherwise, the Expert shall
not, and the firm that employs the Expert shall not, have any material relationship with the Corporate Taxpayer or the TRA Party Representative
or other actual or potential conflict of interest. If the Corporate Taxpayer and the TRA Party Representative are unable to agree on an
Expert within fifteen (15) calendar days of receipt by the respondent(s) of written notice of a Reconciliation Dispute, the Expert shall
be appointed by the International Chamber of Commerce Centre for Expertise. The Expert shall resolve any matter relating to the Early
Termination Schedule or an amendment thereto within thirty (30) calendar days and shall resolve any matter relating to a Tax Benefit Schedule
or an amendment thereto within fifteen (15) calendar days or as soon thereafter as is reasonably practicable, in each case after the matter
has been submitted to the Expert for resolution. Notwithstanding the preceding sentence, if the matter is not resolved before any payment
that is the subject of a disagreement would be due (in the absence of such disagreement) or any Tax Return reflecting the subject of a
disagreement is due, the undisputed amount shall be paid on the date prescribed by this Agreement and such Tax Return may be filed as
prepared by the Corporate Taxpayer, subject to adjustment or amendment upon resolution. The costs and expenses relating to the engagement
of such Expert or amending any Tax Return shall be borne by the Corporate Taxpayer except as provided in the next sentence. The Corporate
Taxpayer and the TRA Party Representative shall bear their own costs and expenses of such proceeding, unless (i) the Expert adopts the
TRA Party Representative’s position, in which case the Corporate Taxpayer shall reimburse the TRA Party Representative for any reasonable
out-of-pocket costs and expenses in such proceeding, or (ii) the Expert adopts the Corporate Taxpayer’s position, in which case
the TRA Party Representative shall reimburse the Corporate Taxpayer for any reasonable out-of-pocket costs and expenses in such proceeding.
Any dispute as to whether a dispute is a Reconciliation Dispute within the meaning of this Section 7.9 shall be decided by the Expert.
The Expert shall finally determine any Reconciliation Dispute and the determinations of the Expert pursuant to this Section 7.9 shall
be binding on the Corporate Taxpayer and each of the TRA Parties and may be entered and enforced in any court having jurisdiction.
Section
7.10. Withholding.
The Corporate Taxpayer shall be entitled to deduct and withhold from any payment payable pursuant to this Agreement such amounts as the
Corporate Taxpayer is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state,
local or foreign Tax law. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by the Corporate
Taxpayer, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom
such withholding was made.
Section
7.11. Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets.
(a)
If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated
income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the
provisions of this Agreement shall be applied with respect to the group as a whole and (ii) Tax Benefit Payments, Early Termination
Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole.
(b)
If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets
to a corporation (or a Person classified as a corporation for United States federal income tax purposes) with which such entity does not
file a consolidated tax return pursuant to Section 1501 of the Code or any corresponding provisions of state, local or foreign law (including
as a result of any series of transactions or acts), such entity, for purposes of calculating the amount of any Tax Benefit Payment or
Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due
hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such transfer. The consideration
deemed to be received by such entity shall be equal to the gross fair market value of the transferred asset. For purposes of this Section
7.11(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the
assets and liabilities of that partnership. If any member of a group described in Section 7.11(a) that is obligated to make a Tax Benefit
Payment or Early Termination Payment hereunder deconsolidates from the group (or the Corporate Taxpayer deconsolidated from the group),
then the Corporate Taxpayer shall cause such member (or the parent of the consolidated group in a case where the Corporate Taxpayer deconsolidates
from the group) to assume the obligation to make Tax Benefit Payments in a manner consistent with the terms of this Agreement as the member
actually realizes such Tax Benefits. If a member of a group described in Section 7.11(a) assumes an obligation to make Tax Benefit Payments
hereunder, then the initial obligor is relieved of the obligation assumed.
Section
7.12. Confidentiality.
(a)
Each TRA Party and each of their assignees acknowledge and agree that the information of the Corporate Taxpayer is confidential
and, except in the course of performing any duties as necessary for the Corporate Taxpayer and its Affiliates, as required by law or legal
process or to enforce the terms of this Agreement, such person shall keep and retain in the strictest confidence and not disclose to any
Person any confidential matters, acquired pursuant to this Agreement, of the Corporate Taxpayer and its Affiliates and successors learned
by the TRA Party heretofore or hereafter. This Section 7.12 shall not apply to (i) any information that has been made publicly available
by the Corporate Taxpayer or any of its Affiliates, becomes public knowledge (except as a result of an act of any TRA Party in violation
of this Agreement) or is generally known to the business community, (ii) the disclosure of information to the extent necessary for the
TRA Parties to prepare and file their Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to prosecute
or defend any action, proceeding or audit by any Taxing Authority with respect to such returns and (iii) any information a TRA Party discloses
to a potential transferee pursuant to Section 7.6 under the terms of a confidentiality agreement to the extent that that such potential
transferee agrees to be bound by customary confidentiality provisions with respect to any confidential information of the Corporate Taxpayer.
Notwithstanding anything to the contrary herein, (A) neither the TRA Party Representative nor the Corporate Taxpayer shall be required
to disclose to any TRA Party any information that it reasonably deems to be confidential pursuant to the terms hereof unless such TRA
Party has executed an agreement pursuant to which such TRA Party agrees to be bound by the terms of this Section 7.12 and (B) each TRA
Party and each of its assignees (and each employee, representative or other agent of the TRA Party or its assignees, as applicable) may
disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the Corporate Taxpayer and its
Affiliates, and any of their transactions, and all materials of any kind (including opinions or other tax analyses) that are provided
to the TRA Party relating to such tax treatment and tax structure.
(b)
If any of the TRA Party Representative or any TRA Party or an assignee commits a breach, or threatens to commit a breach, of any
of the provisions of this Section 7.12, the Corporate Taxpayer shall have the right and remedy to have the provisions of this Section
7.12 specifically enforced by injunctive relief or otherwise by any court of competent jurisdiction without the need to post any bond
or other security, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Corporate
Taxpayer or any of its Subsidiaries or the TRA Parties and the accounts and funds managed by the Corporate Taxpayer and that money damages
alone shall not provide an adequate remedy to such Persons. Such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available at law or in equity.
Section
7.13. TRA Party Representative.
(a)
Appointment. By executing this Agreement, each of the TRA Parties shall be deemed to have irrevocably constituted the TRA
Party Representative as his, her or its agent and attorney in fact with full power of substitution to act from and after the date hereof
and to do any and all things and execute any and all documents on behalf of such TRA Parties which may be necessary, convenient or appropriate
to facilitate any matters under this Agreement, including but not limited to: (i) execution of the documents and certificates required
pursuant to this Agreement; (ii) except to the extent specifically provided in this Agreement receipt and forwarding of notices and communications
pursuant to this Agreement; (iii) administration of the provisions of this Agreement; (iv) any and all consents, waivers, amendments or
modifications deemed by the TRA Party Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement
and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (v) amending this Agreement
or any of the instruments to be delivered to the Corporate Taxpayer pursuant to this Agreement; (vi) taking actions the TRA Party Representative
is expressly authorized to take pursuant to the other provisions of this Agreement; (vii) negotiating and compromising, on behalf of such
TRA Parties, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement
or any other agreement contemplated hereby and executing, on behalf of such TRA Parties, any settlement agreement, release or other document
with respect to such dispute or remedy; and (viii) engaging attorneys, accountants, agents or consultants on behalf of such TRA Parties
in connection with this Agreement or any other agreement contemplated hereby and paying any fees related thereto.
(b)
Expenses. If at any time the TRA Party Representative shall incur out of pocket expenses in connection with the exercise
of its duties hereunder, upon written notice to the Corporate Taxpayer from the TRA Party Representative of documented costs and expenses
(including fees and disbursements of counsel and accountants) incurred by the TRA Party Representative in connection with the performance
of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, the Corporate Taxpayer
shall reduce any future payments (if any) due to the TRA Parties hereunder pro rata (based on their respective Applicable Percentages)
by the amount of such expenses which it shall instead remit directly to the TRA Party Representative. In connection with the performance
of its rights and obligations under this Agreement and the taking of any and all actions in connection therewith, the TRA Party Representative
shall not be required to expend any of its own funds (though, for the avoidance of doubt but without limiting the provisions of this Section
7.13(b), it may do so at any time and from time to time in its sole discretion).
(c)
Limitation on Liability. The TRA Party Representative shall not be liable to any TRA Party for any act of the TRA Party
Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement, except to the
extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such TRA Party as a proximate result of the
gross negligence, bad faith or willful misconduct of the TRA Party Representative (it being understood that any act done or omitted pursuant
to the advice of legal counsel shall be conclusive evidence of good faith and reasonable judgment). The TRA Party Representative shall
not be liable for, and shall be indemnified by the TRA Parties (on a several but not joint basis) for, any liability, loss, damage, penalty
or fine incurred by the TRA Party Representative (and any cost or expense incurred by the TRA Party Representative in connection therewith
and herewith and not previously reimbursed pursuant to subsection (b) above) arising out of or in connection with the acceptance or administration
of its duties under this Agreement, and such liability, loss, damage, penalty, fine, cost or expense shall be treated as an expense subject
to reimbursement pursuant to the provisions of subsection (b) above, except to the extent that any such liability, loss, damage, penalty,
fine, cost or expense is the proximate result of the gross negligence, bad faith or willful misconduct of the TRA Party Representative
(it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of good faith and
reasonable judgment).
(d)
Actions of the TRA Party Representative. A decision, act, consent or instruction of the TRA Party Representative shall constitute
a decision of all TRA Parties and shall be final, binding and conclusive upon each TRA Party, and the Corporate Taxpayer may rely upon
any decision, act, consent or instruction of the TRA Party Representative as being the decision, act, consent or instruction of each TRA
Party. The Corporate Taxpayer is hereby relieved from any liability to any person for any acts done by the Corporate Taxpayer in accordance
with any such decision, act, consent or instruction of the TRA Party Representative.
[The remainder of this page is intentionally
blank]
IN WITNESS WHEREOF, each of the undersigned parties
has duly executed this Agreement as of the date first written above.
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Corporate Taxpayer:
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Snap One Holdings Corp.
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By:
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Name:
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Title:
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TRA Party Representative:
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H&F Copper Holdings VIII, L.P.
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By:
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Name:
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Title:
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Initial TRA Party:
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Crackle Holdings, L.P.
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By:
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Name:
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Title:
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[Signature Page to Tax Receivable Agreement]
Schedule I
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TRA Party
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Applicable Percentage
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100%
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Exhibit A
Form of Joinder
This JOINDER (this “Joinder”)
to the Tax Receivable Agreement (as defined below), is by and among Snap One Holdings Corp. a Delaware corporation (including any successor
corporation, the “Corporate Taxpayer”), ______________________ (“Transferor”) and ______________________
(“Transferee”).
WHEREAS, on ______________________, Transferee shall
acquire ______________________ percent of the Transferor’s right to receive payments that may become due and payable under the Tax
Receivable Agreement (as defined below) (the “Acquired Interests”) from Transferor (the “Acquisition”);
and
WHEREAS, Transferor, in connection with the Acquisition,
has required Transferee to execute and deliver this Joinder pursuant to Section 7.6(a) of the Tax Receivable Agreement, dated as of [●],
2021, between the Corporate Taxpayer and the TRA Parties (as defined therein) (the “Tax Receivable Agreement”).
NOW, THEREFORE, in consideration of the foregoing
and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1.1 Definitions. To the extent
capitalized words used in this Joinder are not defined in this Joinder, such words shall have the respective meanings set forth in the
Tax Receivable Agreement.
Section 1.2 Acquisition. For good and valuable
consideration, the sufficiency of which is hereby acknowledged by the Transferor and the Transferee, the Transferor hereby transfers and
assigns absolutely to the Transferee all of the Acquired Interests.
Section 1.3 Joinder. Transferee hereby
acknowledges and agrees (i) that it has received and read the Tax Receivable Agreement, (ii) that the Transferee is acquiring the Acquired
Interests in accordance with and subject to the terms and conditions of the Tax Receivable Agreement and (iii) to become a “TRA
Party” (as defined in the Tax Receivable Agreement) for all purposes of the Tax Receivable Agreement.
Section 1.4 Notice. Any notice, request,
consent, claim, demand, approval, waiver or other communication hereunder to Transferee shall be delivered or sent to Transferee at the
address set forth on the signature page hereto in accordance with Section 7.1 of the Tax Receivable Agreement.
Section 1.5 Governing Law. This Joinder
shall be governed by and construed in accordance with the law of the State of Delaware.
IN WITNESS WHEREOF, this Joinder has been duly executed
and delivered by Transferee as of the date first above written.
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Snap One Holdings Corp.
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By:
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Name:
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Title:
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[TRANSFEROR]
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By:
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Name:
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Title:
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[TRANSFEREE]
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By:
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Name:
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Title:
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Address for notices:
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Exhibit 10.14
Final Form
Crackle Holdings, L.P.
Treatment of Unvested Class B Units
[•], 2021
As you may know, Crackle Holdings GP LLC (the “General Partner”),
being the general partner of Crackle Holdings, L.P. (the “Partnership”), has begun the process of an initial public
offering (if consummated, the “IPO”) and, in connection therewith, has selected Snap One Holdings Corp. (f/k/a Crackle
Corp.), a direct wholly-owned subsidiary of the Partnership (the “Company”), for purposes of undertaking the IPO. In
connection with the IPO, and pursuant to the terms of the Partnership Agreement (as defined below) to which you are party, the General
Partner will cause the Partnership to exchange your unvested Class B Units (the “Unvested Units”) granted under the
Partnership’s 2017 Class B Unit Incentive Plan (as amended from time to time, the “2017 Plan”), if any, for unvested
shares of common stock of the Company (“shares of Restricted Stock”), if and when the IPO occurs (the “Exchange”).
Terms used but not otherwise defined herein shall have the meanings ascribed to them in the Amended and Restated Limited Partnership Agreement
of the Partnership, dated as of August 4, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Partnership
Agreement”).
What will you receive? You will receive shares of Restricted
Stock in exchange for your Unvested Units. These shares of Restricted Stock will be stock of the same class of shares that will become
publicly traded following the IPO and will be subject to restrictions on transfer and vesting as described below. As is the case with
your Class B Units, the shares of Restricted Stock will not be registered under the Securities Act of 1933, as amended (the “Securities
Act”), and accordingly, even once the shares of Restricted Stock have vested, they may not be sold or transferred except pursuant
to an effective registration statement under the Securities Act or pursuant to an applicable exemption therefrom.
The number of shares of Restricted Stock you will receive will be determined
taking into account the aggregate value of your Unvested Units immediately prior to the Exchange, based on the distribution priorities
and terms applicable to the various classes of units of the Partnership, in each case, calculated by the General Partner pursuant to and
in accordance with the Partnership Agreement, and the price at which shares of Common Stock of the Company are initially offered to the
public in connection with the IPO (the “IPO Price”). The number of shares of Restricted Stock you receive in exchange
for your Unvested Units will each be rounded down to the nearest whole Share, and any fractional Shares will be settled in cash by the
Company at a later date. Your shares will be held at an account in your name with the transfer agent in book-entry form.
You will also receive cash equal to $[ ] per Unvested Unit in lieu
of participation in the tax receivables agreement that will be entered into between the Company and certain Partnership unitholders in
connection with the IPO (the “Additional Payment”).
If your position with the Company is below the Executive Vice President-level
(a “Non-Executive”), you will receive the Additional Payments payable with respect to your Unvested Units at the same
time as the Exchange.
If your position with the Company is at or above the Executive Vice
President-level (an “Executive”), then only Additional Payments payable with respect to Class B-1 Units of the Partnership
(“Class B-1 Units”) that are scheduled to vest by October 31, 2022 pursuant to the time-vesting schedule applicable
to such Class B-1 Units as of immediately prior to the Exchange will be paid to you at the same time as the Exchange. All other Additional
Payments with respect to Class B-1 Units will be held in escrow, subject to the same vesting conditions as the Restricted Stock received
in exchange for the Class B-1 Units; provided that such vesting schedule shall be accelerated by a certain number of days equal to number
of days following the Exchange to October 31, 2022. Additional Payments with respect to any Class B-2 units of the Partnership (“Class
B-2 Units”) will be held in escrow subject to the vesting conditions of the Restricted Stock received in exchange for such B-2
Units, as described in Appendix A. Notwithstanding the foregoing, in the event your employment is terminated as a result of your death
or Disability (as defined in the Company’s 2021 Stock Incentive Plan), any remaining Additional Payments payable to you with respect
to your Class B-1 and Class B-2 Units shall immediately vest.
When can you sell your Shares of Restricted Stock? The shares
of Restricted Stock generally cannot be sold until the date that is the later of (i) the date on which such shares of Restricted Stock
vest and (ii) twelve (12) months if you are an Executive or one hundred and eighty (180) days if you are a Non-Executive following the
closing date of the IPO, subject to the Company’s then effective insider trading policy.
What vesting conditions will apply to the Shares of Restricted Stock?
The shares of Restricted Stock you receive in exchange for your Class
B Units will be subject to the vesting terms that apply to such unvested Class B Units, as further
described in (and, solely as to Class B-2 Units, as modified by) the attached Exchange Acknowledgement and Agreement.
Will my restrictive covenants continue to apply? Yes, your obligations
under the Non-Interference Agreement referenced and defined in your Class B Unit Award Agreement(s) will continue to apply following the
Exchange, and may be enforced by the Company following the Exchange.
What must you do now? To facilitate the IPO process and the
Exchange of your Unvested Units, you must execute the attached Exchange Acknowledgement and Agreement. We strongly encourage you to
read these documents, and, if you have questions, consult with your own legal, financial, and tax advisors about the consequences of the
Exchange.
After you execute the Exchange Acknowledgement and Agreement, please
send signed copies of the agreement(s) to [JD Ellis] no later than [•], 2021.
U.S. Federal Income Tax Treatment of the Exchange. The Company
intends to take the position that the Exchange should not result in taxable income to you for U.S. federal income tax purposes, except
with respect to any cash received in connection with the Exchange, as described below. The Exchange is expected to be treated, for U.S.
federal income tax purposes, as a distribution to you of shares of Common Stock of the Company by the Partnership in redemption of your
Unvested Units. Accordingly, your tax basis and holding period, if any, in your Unvested Units should carry over to your Restricted Shares,
except that your basis will be reduced by the amount of cash received at the time of the Exchange or with respect to which a section 83(b)
election is made, as described below, and your subsequent disposition of such shares (after vesting) should generally result in a capital
gain (or loss) in an amount equal to the difference between the amount you realize on the disposition and your tax basis in the Restricted
Shares that are disposed of. Long-term capital gains recognized by individuals are generally eligible for reduced rates of taxation. Furthermore,
the deductibility of capital losses is subject to limitations. The foregoing assumes you will make an election as required in the Exchange
Acknowledgement and Agreement under section 83(b) of the Internal Revenue Code with respect to the shares of Restricted Stock and that
the shares of Restricted Stock you receive in the Exchange are of equivalent value to your unvested Units.
U.S. Federal Income Tax Treatment of the Additional Payments.
Any cash you receive at the time of the Exchange pursuant to this agreement is expected to be taxable income to you as capital gain to
the extent the cash received exceeds your outside basis in your Partnership interest. Your basis in the shares of Restricted Stock you
receive in the Exchange will be reduced by the amount of such cash. If you are an Executive, the portion of the cash payment that is placed
in escrow is not expected to be treated as currently received and therefore would not be subject to tax on a current basis and will not
reduce your basis in your shares of Restricted Stock. When you actually receive the cash in escrow, the cash will be taxed as ordinary
income to you. The Company intends to take the position that you may make a section 83(b) election with respect to all or a portion of
the amount of cash held in escrow. If you choose to make a section 83(b) election on the escrowed cash, you would be subject to current
taxation as capital gain to the extent the cash exceeds your outside basis in your Partnership interest and your basis in your shares
of Restricted Stock would be reduced by the amount of such cash. You would not be subject to tax on the cash when it is actually received,
but you would not be able to claim a tax loss if such cash is forfeited. You should consult your tax advisors regarding the application
of the U.S. federal income tax laws to your particular situation, including the impact of the section 83(b) election as well as any tax
consequences arising under the laws of any state, local or foreign taxing jurisdiction.
The shares of Restricted Stock you receive in the Exchange will
be in exchange for, and will supersede in all respects, the Unvested Units, which will be cancelled and cease to exist immediately upon
the Exchange. Except as expressly set forth in the Exchange Acknowledgement and Agreement, your rights and obligations under the 2017
Plan, your Class B Unit Award Agreement(s), the Partnership Agreement and any other documents or agreements with respect to the Unvested
Units or the Partnership will terminate immediately following the Exchange.
We look forward to beginning this new, exciting chapter as a public
company.
Sincerely,
John Heyman
EXCHANGE ACKNOWLEDGEMENT AND AGREEMENT
This Exchange Acknowledgement and Agreement (this
“Agreement”) is made effective as of [ ], 2021 (the “Effective Date”), by and among Crackle Holdings,
L.P., a Delaware limited partnership (the “Partnership”), Crackle Holdings GP LLC, a Delaware limited liability company
and the general partner of the Partnership (the “General Partner”), Snap One Holdings Corp. (f/k/a Crackle Corp.),
a Delaware corporation and direct wholly-owned subsidiary of the Partnership (the “Company”), and the management unitholder
identified on the signature page attached hereto (“Management Unitholder”). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Partnership Agreement (as defined below).
WHEREAS, Management Unitholder holds a number of
Class B Units of the Partnership (the “Exchanged Units”), in each case as specified in the Equity Schedule set forth
on the signature page hereto, which Exchanged Units are subject to the Amended and Restated Limited Partnership Agreement of the Partnership,
dated as of August 4, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Partnership Agreement”),
the Partnership’s 2017 Class B Unit Incentive Plan (as amended from time to time, the “2017 Plan”) and one or
more Class B Unit Award Agreements, including any exhibits attached thereto (collectively, the “Unit Equity Agreements”);
WHEREAS, in connection with the initial public offering
of the Company (the “IPO”), the General Partner will cause all of the Exchanged Units to be exchanged for unvested
shares of common stock, par value $0.01, of the Company (the “shares of Restricted Stock”), effective immediately after
the execution and delivery by the Company of the underwriting agreement relating to the IPO (the “Exchange and, the date
of such Exchange, the “Exchange Time”), upon the terms and subject to the conditions set forth herein and as otherwise
determined by the General Partner;
WHEREAS, prior to the IPO, the Company and the Partnership
will enter into a tax receivable agreement (the “Tax Receivable Agreement”) whereby the Company will agree to make
payments with respect a portion of the tax savings of the Company as a result of certain pre-IPO tax attributes;
WHEREAS, the Partnership will distribute its rights
under the Tax Receivable Agreement to certain unitholders, and a cash payment to other holders, including the Management Unitholder, equal
to the fair market value of the Management Unitholder’s pro rata interest in the Tax Receivable Agreement in lieu of rights under
the Tax Receivable Agreement; and
WHEREAS, at the Exchange Time, pursuant to the Exchange,
the Exchanged Units will be redeemed and will be cancelled and cease to exist and, in exchange therefor, Management Unitholder shall receive
a number of shares of Restricted Stock determined by the General Partner, based on the price at which Shares are initially offered to
the public in connection with the IPO (the “IPO Price”), as described herein and subject to the terms and conditions
hereof, including, Appendix A attached hereto.
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto acknowledge and agree as follows:
1. Exchange
of Exchanged Units.
(a) Subject
to the terms and conditions set forth herein and effective as of the Exchange Time, the General Partner will cause the Exchanged Units
to be redeemed and cancelled in exchange for a number of shares of Restricted Stock, as determined in accordance with the Partnership
Agreement. Once the IPO Price is conclusively determined, the actual number of shares of Restricted Stock to be received will be determined
and the Company will communicate such final number to the Management Unitholder.
(b) Management
Unitholder shall receive cash equal to $[ ] per Exchanged Unit (the “Additional Payment”). Additional Payments shall
be distributed to the Management Unitholder as follows:
(i) If the Management Unitholder’s position
with the Company (or applicable affiliate thereof) is below the Executive Vice-President level (a “Non-Executive Management Unitholder”),
the entire Additional Payment shall be distributed by the Partnership to the Management Unitholder on or prior to the closing date of
the IPO.
(ii) If the Management Unitholder’s position
with the Company (or applicable affiliate thereof) is at or above the Executive Vice-President level (an “Executive Management
Unitholder”), the portion of the Additional Payment with respect to Class B-1 Units of the Partnership (“Class B-1
Units”) held by the Management Unitholder that are scheduled to vest by October 31, 2022 (the “Acceleration Date”)
pursuant to the time-vesting schedule applicable to such Class B-1 Units as of immediately prior to the closing date of the IPO, shall
be distributed by the Partnership to the Executive Management Unitholder on or prior to the closing date of the IPO. Any remaining portion
of the Additional Payment to an Executive Management Unitholder with respect to the Class B-1 Units or Class B-2 Units shall be held in
escrow subject to the same vesting conditions set forth in Appendix A attached hereto for the shares of Restricted Stock with which
such Additional Payment is associated, except that (a) in the event the Management Unitholder’s employment is terminated as a result
of the Management Unitholder’s death or Disability (as defined in the Company’s 2021 Stock Incentive Plan), any then-unvested
and outstanding portion of the Additional Payment shall immediately vest upon such termination, (b) the vesting conditions with respect
to shares of Restricted Stock received in exchange for Class B-1 Units shall be accelerated by a certain number of days, with such number
of days equal to the number of days following the closing date of the IPO to the Acceleration Date, and (c) in the event that any unvested
shares of Restricted Stock are forfeited, any remaining portion of the Additional Payment with respect to such shares shall be forfeited
to the TRA Parties (as defined in the Tax Receivable Agreement). With respect to each vested portion of the Additional Payment, within
five business days following the end of the quarter in which the applicable portion of the Additional Payment vested, such vested portion
of the Additional Payment shall be distributed from escrow to the Executive Management Unitholder pursuant to the terms and conditions
set forth in the escrow agreement to be entered into by the Company and an escrow agent prior to the Additional Payment.
(c) Effective
as of the Exchange, the shares of Restricted Stock shall be subject to the terms of Appendix A attached hereto.
(d) Management
Unitholder shall provide the Company with a copy of a completed election under Section 83(b) of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder in the form of Exhibit A attached hereto, with respect to the shares of Restricted
Stock and may, but is not required to, provide the Company with a copy of such election in the form of Exhibit B attached hereto
with respect to all or a portion of the Additional Payment that is held in escrow pursuant to clause (b) of this section. Management Unitholder
shall timely (within 30 days of the Exchange Time) file (via certified mail, return receipt requested) such election(s) with the Internal
Revenue Service, and thereafter shall certify to the Company that Management Unitholder has made such timely filing(s) and furnish a copy
of such filing(s) to the Company. Management Unitholder should consult his or her tax advisor regarding the consequences of a Section
83(b) election, as well as the receipt, vesting, holding and sale of the shares of Restricted Stock.
(e) Management
Unitholder acknowledges that the shares of Restricted Stock have not been registered under the Securities Act of 1933, as amended (the
“Securities Act”), and accordingly, may not be sold or transferred except pursuant to an effective registration statement
under the Securities Act or pursuant to an applicable exemption therefrom, and subject to the Company’s then effective insider trading
policy.
2. Non-Interference
Agreement. For purposes of the Non-Interference Agreement Management Unitholder is a party to as a result of the Unit Equity Agreements,
it is acknowledged and agreed that, from and after the Exchange, references to the “Partnership” will instead refer to the
Company and references to the “Partnership Group” will refer to the Company and its subsidiaries.
3. Book
Entry. The Company shall recognize Management Unitholder’s ownership of shares of Restricted Stock through uncertificated book
entry.
4. Rights
as a Stockholder. Management Unitholder shall be the record owner of the shares of Restricted Stock until or unless such shares of
Restricted Stock are forfeited pursuant to the terms of this Agreement, and as record owner shall be entitled to all rights of a common
stockholder of the Company, including, without limitation, voting rights with respect to the shares of Restricted Stock and rights to
dividends or other distributions, subject to Section 6 below.
5. Book
Entry Notations. To the extent applicable, all book entries representing the shares of Restricted Stock delivered to Management Unitholder
as contemplated by Section 3 above shall be subject to the rules, regulations, and other requirements of the Securities and Exchange Commission,
any stock exchange upon which such Shares are listed, and any applicable Federal or state laws, and the Company may cause notations to
be made next to the book entry to make appropriate reference to such restrictions. Any such book entry notations may include a description
of the restrictions set forth in Appendix A attached hereto and herein, including Sections 1 and 6 hereof.
6. Transfer
Restrictions. The shares of Restricted Stock are subject to the restrictions and obligations set forth in the Snap One Holdings Corp.
Stockholders Agreement to be entered into by the Company and the other parties thereto on the date of the Exchange (the “Stockholders
Agreement”) and Appendix A attached hereto.
7. No
Right to Continued Employment. Neither this Agreement nor Management Unitholder’s receipt of the Shares hereunder shall impose
any obligation on the Company or any of its affiliates to continue the employment or engagement of Management Unitholder. Further, the
Company or any of its affiliates (as applicable) may at any time terminate the employment or engagement of Management Unitholder, free
from any liability or claim under the 2017 Plan or this Agreement, except as otherwise expressly provided herein.
8. Cooperation.
Management Unitholder acknowledges that the IPO constitutes an Initial Public Offering, the Company constitutes the IPO Corporation and
the Exchange constitutes an IPO Conversion, in each case, pursuant to the Partnership Agreement and acknowledges that Management Unitholder
has obligations to cooperate with the General Partner and take all actions required or reasonably requested by the General Partner in
connection with the consummation of the IPO Conversion under the Partnership Agreement. Without limiting the foregoing, Management Unitholder
further agrees to cooperate with the General Partner, the Partnership, the Company and their respective affiliates in taking any actions
reasonably requested, necessary or advisable to consummate the transactions contemplated by this Agreement.
9. Notices.
Any notice necessary under this Agreement shall be addressed to the General Partner, the Partnership or the Company in care of its Secretary
at its principal executive office and to Management Unitholder at the address appearing in the personnel records of the Company for such
Management Unitholder or to either party at such other address as either party hereto may hereafter designate in writing to the other.
Any such notice shall be deemed effective upon receipt thereof by the addressee.
10. Choice
of Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable
to contracts made and performed wholly within the State of Delaware, without giving effect to the conflict of laws provisions thereof.
11. Amendment.
Prior to the consummation of the IPO, the General Partner and, after consummation of the IPO, the Company, may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate this Agreement, but no such waiver, amendment, alteration,
suspension, discontinuance, cancellation or termination shall materially adversely affect the rights of Management Unitholder hereunder
without the consent of Management Unitholder.
12. Electronic
Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to the shares of Restricted
Stock by electronic means. The Management Unitholder hereby consents to receive such documents by electronic delivery and agrees to participate
in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
13. Entire
Agreement. This Agreement constitutes the entire agreement of the parties hereto in respect of the subject matter contained herein
and supersede all prior agreements and understandings of the parties, oral and written, with respect to such subject matter.
14. Binding
Effect. This Agreement shall be binding upon the heirs, executors, administrators and successors of the parties hereto.
15. Other
Rights. Management Unitholder acknowledges that, upon consummation of the Exchange, Management Unitholder will no longer hold any
unvested Class B Units of the Partnership and will have no surviving rights under the Partnership Agreement or any other governing documents
of the Partnership or any other agreements related to ownership of any such unvested Class B Units of the Partnership, other than as expressly
set forth herein.
[Signatures on next page.]
IN WITNESS WHEREOF, Management Unitholder acknowledges
and accepts the terms of this Agreement.
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Management Unitholder
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Name:
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Equity Schedule:
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Class of Units
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Number of Unvested Units at IPO
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Class B-1 Units
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Class B-2 Units
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Agreement acknowledged and confirmed:
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Crackle Holdings, L.P.
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By:
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Name:
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Its
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Crackle Holdings GP LLC
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By:
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Name:
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Its
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Snap One Holdings Corp.
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By:
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Name:
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Its
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APPENDIX A
to the
Exchange Acknowledgement
and Agreement
TERMS AND CONDITIONS
1. General.
Capitalized terms not otherwise defined herein shall have the meaning set forth in the Company’s 2021 Stock Incentive Plan. However,
the term “Company” as used in this Appendix A with reference to employment shall include the Company and its Subsidiaries.
2. Vesting
Conditions. Upon receipt, shares of Restricted Stock shall initially be unvested and shall vest as follows:
(a) Shares
of Restricted Stock received in exchange for Class B-1 Units (the “Time-Based Restricted Stock”) will continue to vest
based upon the same vesting conditions as were applicable to the Class B-1 Units to which the Time-Based Restricted Stock relates.
(b) Shares
of Restricted Stock received in exchange for Class B-2 Units (the “Performance-Based Restricted Stock”) will vest upon
achievement of one or more of (A) the Total Return Hurdle, (B) the Average Return Hurdle and/or (C) the VWAP Hurdle (in each case as defined
and described below) (which shall replace, in its entirety, the vesting conditions applicable to the Class B-2 Units in place immediately
prior to the Exchange):
(i)
Total Return Hurdle. Subject to the Management Unitholder not having undergone a Termination (as defined in the 2017 Plan)
prior to the applicable vesting date, 100% of the Performance-Based Restricted Stock will vest upon the receipt of Proceeds (as defined
in the 2017 Plan) by the H&F Investors (as defined in the 2017 Plan and collectively referred to herein as the “Sponsor”),
whether prior to, in connection with or following the IPO (as defined in the Exchange Agreement), equal to $1,399,409,115, which is the
product of (a) $2.50 multiplied by (b) the number of Class A Units held by the Sponsor as of immediately prior to the closing of
the IPO (as may be equitably adjusted for any units splits, recapitalizations or other similar events) (the “Total Return Hurdle”).
If the Total Return Hurdle is not achieved prior to or in connection with a Change in Control, all Performance-Based Restricted Stock
will be forfeited for no consideration.
(ii) Average
Return Hurdle. Subject to the Management Unitholder not having undergone a Termination prior to the applicable vesting date, upon
any trade or other sale of shares of common stock, par value $0.01, of the Company (“Common Stock”) issued to the Sponsor
in connection with the IPO in respect of Class A Units of the Partnership held directly or indirectly by the Sponsor as of immediately
prior to the Exchange (each, a “Sponsor Share”, and the aggregate Sponsor Shares so received by the Sponsor, the “Initial
Sponsor Shares”) following which the Sponsor holds 10% or less of the Initial Sponsor Shares (such trade or other sale, an “Exit
Trade”), 100% of the Performance-Based Restricted Stock will vest if the Proceeds received in respect of the Sponsor Shares
sold prior to and inclusive of the Exit Trade exceeds (a) the Price Target multiplied by (b) the number of Sponsor Shares sold
prior to and inclusive of the Exit Trade (the “Average Return Hurdle”). In addition, upon each trade or other sale
of Sponsor Shares following the Exit Trade, but prior to the time in which the Sponsor ceases to hold any of the Initial Sponsor Shares,
if the Average Return Hurdle is satisfied, 100% of the Performance-Based Restricted Stock will vest. For purposes hereof, the “Price
Target” is the amount per share of Common Stock that is equivalent to a price per Class A Unit of the Partnership equal to $2.50,
which is calculated as follows: (a) the product of (i) $2.50 multiplied by (ii) the number of Class A Units held by the Sponsor
immediately prior to the closing of the IPO (each as may be equitably adjusted for any units splits, recapitalizations or other similar
events) divided by (b) the number of Initial Sponsor Shares. For example, if the Sponsor held 500,000,000 Class A Units immediately
prior to the closing of the IPO and the number of Initial Sponsor Shares was 100,000,000 (i.e. 0.20 shares of Company Common Stock per
Class A Unit), the Price Target would be equal to $12.50. The Price Target shall be appropriately reduced based on any Proceeds paid to
the holders of Class A Units of the Partnership prior to the IPO (for example, a pro rata cash distribution).
(iii) VWAP
Hurdle. Prior to an Exit Trade, or following an Exit Trade to the extent such trade does not result in satisfaction of the Average
Return Hurdle, if, during the period commencing on the earlier to occur of (a) the first anniversary of the IPO or (b) the first Exit
Trade, and ending on February 4, 2024 (such period, the “VWAP Period”), the price per share of Common Stock, measured
using a 30-day volume-weighted average price (the “VWAP Price”), is at least equal to the Price Target (the “VWAP
Hurdle”), then:
(A)
42% of the Performance-Based Restricted Stock will vest on August 4, 2022 (or such later date on which the VWAP Hurdle is achieved);
(B)
42% of the Performance-Based Restricted Stock will vest on August 4, 2023 (or such later date on which the VWAP Hurdle is achieved); and
(C) 16%
of the Performance-Based Restricted Stock will vest on February 4, 2024.
For the avoidance of doubt, no Performance-Based Restricted
Stock will vest as a result of achieving the VWAP Hurdle prior to or following the VWAP Period.
(iv) Final
Forfeiture. Notwithstanding anything contained in this Section 2(b) to the contrary, Performance-Based Restricted Stock that has
not vested on or prior to February 4, 2024 shall be forfeited on such date for no consideration.
(c) The
vesting conditions applicable to the Performance-Based Restricted Stock as set forth in Section 2(b) of this Appendix A constitute
an amendment to the original vesting terms applicable to the Class B-2 Units for which such shares of Restricted Stock are exchanged.
Management Unitholder hereby consents to such amended vesting terms in accordance with the 2017 Plan.
3. Treatment
of Shares of Restricted Stock Upon Termination. Except as set forth in Section 2 of this Appendix A, in the event of the Management
Unitholder’s Termination for any reason prior to the time that all of the shares of Restricted Stock have vested, (A) all vesting
with respect to such shares of Restricted Stock shall cease and (B) unvested shares of Restricted Stock shall be forfeited to the Company
by the Management Unitholder for no consideration as of the date of such Termination.
4. Non-Transferability.
Until the Restricted Period (as defined in the 2017 Plan) has expired, the shares of Restricted Stock are not transferable by the Management
Unitholder. Except as otherwise provided herein, during the Restricted Period, no assignment or transfer of the shares of Restricted Stock,
or of the rights represented thereby, whether voluntary or involuntary, by operation of law or otherwise, shall vest in the assignee or
transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the shares of Restricted Stock shall
be forfeited to the Company.
5. Imposition
of Other Requirements. The Company reserves the right to impose other requirements on the shares of Restricted Stock, to the extent
the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Management Unitholder to sign
any additional agreements or undertakings that may be necessary to accomplish the foregoing.
SECTION 83(b) ELECTION FORM
[•], 2021
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Internal Revenue Service Center
Re: Election Under §83(b) of the Internal Revenue Code
Dear Sir or Madam:
The undersigned hereby elects
under Section 83(b) of the Internal Revenue Code to include in the taxpayer’s gross income for the taxable year in which the property
described below was transferred, the excess (if any), of the fair market value of such property at the time of its transfer, over the
amount (if any) paid for such property. Pursuant to Treas. Reg. § 1.83-2(e), the following information is submitted:
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Name of taxpayer: _________________
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Address of taxpayer: _________________
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Social Security Number: _________________
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4.
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Property with respect to which the election is being made: [•] shares of Common Stock of Snap One Holdings Corp.
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5.
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Date Interest Acquired: [•], 2021
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Taxable Year for which election is being made: calendar year 2021
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7.
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Nature of the restriction or restrictions to which the property is subject: While the shares of Common Stock described in Paragraph
4 are held by the undersigned, such shares remain subject to vesting based upon the continued performance of substantial services and/or
applicable performance conditions.
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8.
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Fair Market Value of the property at the time of transfer/acquisition, determined without regard to any lapse restrictions and in
accordance with Revenue Procedure 93-27: $[•]
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9.
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Amount paid for the property: $[•]
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Pursuant to Treas. Reg. § 1.83-2(e), a copy
of this election has been furnished to the person for whom the undersigned’s services are performed.
SECTION 83(b) ELECTION FORM
[•], 2021
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Internal Revenue Service Center
Re: Election Under §83(b) of the Internal Revenue Code
Dear Sir or Madam:
The undersigned hereby elects
under Section 83(b) of the Internal Revenue Code to include in the taxpayer’s gross income for the taxable year in which the property
described below was transferred, the excess (if any), of the fair market value of such property at the time of its transfer, over the
amount (if any) paid for such property. Pursuant to Treas. Reg. § 1.83-2(e), the following information is submitted:
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Name of taxpayer: _________________
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2.
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Address of taxpayer: _________________
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Social Security Number: _________________
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Property with respect to which the election is being made: $[•] which is held in escrow by Snap One Holdings Corp.
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Date Interest Acquired: [•], 2021
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Taxable Year for which election is being made: calendar year 2021
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7.
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Nature of the restriction or restrictions to which the property is subject: While cash described in Paragraph 4 is held for the benefit
of the undersigned, such cash remains subject to vesting based upon the continued performance of substantial services and/or applicable
performance conditions.
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8.
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Fair Market Value of the property at the time of transfer/acquisition, determined without regard to any lapse restrictions and in
accordance with Revenue Procedure 93-27: $[•]
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9.
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Amount paid for the property: $[•]
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Pursuant to Treas. Reg. § 1.83-2(e), a copy
of this election has been furnished to the person for whom the undersigned’s services are performed.
Exhibit 10.15
Final Form
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this
“Agreement”) is made as of [●], 2021, by and among Snap One Holdings Corp., a Delaware corporation (the
“Company”), H&F Copper Holdings VIII, L.P., a Delaware limited partnership (the “TRA Party Representative”),
and Wilmington Trust, National Association, as escrow agent (the “Escrow Agent”). Capitalized terms used but not defined
herein shall have the meanings set forth in the Tax Receivable Agreement (as defined below).
WHEREAS, the Company is party
to (i) that certain Tax Receivable Agreement, dated as of [●], 2021, by and among the Company, Crackle Holdings, L.P., a Delaware
limited partnership and the direct parent of the Company (the “Partnership”), and the TRA Party Representative (as
amended, restated, modified or supplemented from time to time, the “Tax Receivable Agreement”), and (ii) those
certain Exchange Acknowledgement and Agreements, each dated as of [●], 2021, by and among the Company, the Partnership, Crackle
Holdings GP LLC, a Delaware limited liability company and the general partner of the Partnership, and certain management unitholders (as
amended, restated, modified or supplemented from time to time, collectively, the “Exchange Agreements”);
WHEREAS, pursuant to the terms
of the Exchange Agreements, among other things, certain Additional Payments (as defined therein) payable by or on behalf of the Company
to certain management holders thereunder are required to be held in escrow, subject to vesting conditions that are based on the vesting
conditions of the shares of restricted stock as described in the Exchange Agreements for the shares of restricted stock with which such
Additional Payments are associated;
WHEREAS, the board of directors
of the Company (the “Board”) has resolved to deposit or cause to be deposited, by wire transfer of immediately available
funds, with the Escrow Agent into an account (the “Escrow Account”) an aggregate amount of cash equal to the Escrow
Amount (as defined below);
WHEREAS, the Escrow Account
is established by the Escrow Agent pursuant to the terms of this Agreement for payment of the Additional Payments, subject in each case
to the vesting of such Additional Payment in accordance with the terms of the applicable Exchange Agreement; and
WHEREAS, this Agreement is
the Escrow Agreement referred to in the Exchange Agreements.
NOW, THEREFORE, in consideration
of the agreements and understandings contemplated in the Tax Receivable Agreement, the Exchange Agreements and herein, the parties hereto
agree as follows.
1. Appointment
of Escrow Agent; Escrow Deposit.
(a) The
Company and the TRA Party Representative hereby appoint the Escrow Agent as escrow agent to perform the duties of the Escrow Agent set
forth in this Agreement, and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth in this Agreement.
(b) On
the date hereof, the Company shall deposit, or cause to be deposited, in a non-interest bearing account with the Escrow Agent, [●]
dollars ($[●]) in immediately available funds (the “Escrow Amount”), and upon receipt of the Escrow Amount, the
Escrow Agent will acknowledge in writing to the TRA Party Representative and the Company receipt of the Escrow Amount on the same day
of receipt. For purposes of this Agreement, the term “Escrow Funds” will mean the Escrow Amount, less any distributions
thereof in accordance with this Agreement. The Escrow Agent will accept the Escrow Amount and hereby agrees to record and hold the Escrow
Funds in the Escrow Account and in accordance with the provisions of this Agreement and will not distribute the Escrow Funds except in
accordance with the express terms and conditions of this Agreement.
2. Release
of Escrow Account Assets. The Escrow Agent shall release the Escrow Funds only as provided in this Section 2. Within two (2) Business
Days after the Escrow Agent's receipt of a joint written direction of the Company and the TRA Party Representative (each, a “Written
Instruction”), the Escrow Agent shall release the Escrow Funds as directed in such Written Instructions. The Written Instructions
shall provide as follows:
(a) to
the extent any Additional Payments come due in accordance with the applicable Exchange Agreements and are not treated as compensation,
such portion of the Escrow Funds shall be disbursed to the applicable Management Unitholders (as defined in the applicable Exchange Agreement);
(b) to
the extent any Additional Payments come due in accordance with the applicable Exchange Agreements and are treated as compensation, such
portion of the Escrow Funds shall be disbursed to the Company, which shall distribute such funds to the applicable Management Unitholder,
less any applicable withholding taxes; and/or
(c) with
respect to any Additional Payments that are forfeited in accordance with the applicable Exchange Agreements and the Tax Receivable Agreement,
such portion of the Escrow Funds shall be disbursed to the TRA Parties (as defined in the Tax Receivable Agreement).
For the avoidance of doubt,
any Written Instruction may be delivered by the Company and the TRA Party Representative only upon the vesting of the applicable portion
of the Escrow Funds to be released in accordance with the terms of the applicable Exchange Agreements and/or upon the forfeiture of the
applicable portion of the Escrow Funds to be released in accordance with the terms of the applicable Exchange Agreements and the Tax Receivable
Agreement.
3. Tax
Compliance. The Escrow Agent shall have the right to request from any party to this Agreement, or any other person or entity entitled
to payment hereunder, any additional forms, documentation or other information as may be reasonably necessary for the Escrow Agent to
satisfy its reporting and withholding obligations under applicable law, including IRS Form W-9 or the appropriate series of IRS Form W-8,
as applicable. The Company and the TRA Party Representative understand that the Escrow Agent may be required to withhold a portion of
any payment hereunder if they have not supplied the correct Taxpayer Identification Number or required certification and that the Escrow
Agent will deliver any such withheld amount to the IRS or other tax authority. The Escrow Agent shall have no responsibility to report
for tax purposes any payments made in connection with this Escrow Agreement.
4. No
Duty to Verify. The Escrow Agent will have neither the duty nor the authority to verify the accuracy of the information contained
in any instruction, notice or certificate, nor the genuineness of any signature thereon or the authority of any such signatory to execute
such instruction, notice or certificate, delivered by the Company or the TRA Party Representative hereunder. Upon distribution of all
of the Escrow Funds in accordance with Section 2, Section 3, Section 5 or Section 6 hereof,
the Escrow Agent will be deemed to have fully discharged its duties and obligations hereunder, and will have no further liability or obligation
to any party with respect hereto. Concurrent with the execution of this Escrow Agreement, each of the Company and the TRA Party Representative
shall provide the Escrow Agent with a copy of an authorized signor form in the form of Exhibit A-1 and Exhibit A-2,
respectively, to this Escrow Agreement.
5. Escrow
Funds. The Escrow Agent is authorized and directed to deposit, transfer and hold the Escrow Funds in a Wilmington Trust non-interest
bearing or other account fully insured, subject to the applicable rules and regulations of the Federal Reserve Insurance Corporation
(FDIC), to the applicable limits of the FDIC.
6. Provisions
with Respect to the Escrow Agent.
(a) Protection
of the Escrow Agent. The Escrow Agent, the Company and the TRA Party Representative, as applicable, agree that: (i) either the
Company or the TRA Party Representative may examine the Escrow Account (and the Escrow Funds) at any time at the office of the Escrow
Agent upon reasonable notice to the Escrow Agent; (ii) in performing their duties hereunder, the Escrow Agent may rely on written
statements furnished to it by any officer of either the Company or the TRA Party Representative (provided, that such notice is
otherwise in accordance with the requirements hereof) with respect to matters related to the Company or the TRA Party Representative,
respectively, or any other evidence deemed by the Escrow Agent to be reliable, and will be entitled to act on the advice of counsel selected
by it; (iii) if the Escrow Account (or the Escrow Funds) are attached, garnished, or levied upon under the order of any court, or
the delivery thereof will be stayed or enjoined by the order of any court, or any other order, judgment or decree will be made or entered
by any court affecting the Escrow Account (or the Escrow Funds), the Escrow Agent is hereby expressly authorized to obey and comply with
all writs, orders or decrees so entered or issued, whether with or without jurisdiction, provided that the Escrow Agent will provide
reasonable prior notice, to the extent possible under the circumstances, to the Company and the TRA Party Representative of such compliance
with such writs, orders or decrees, and the Escrow Agent will not be liable to any of the parties hereto or their successors by reason
of compliance with any such writ, order or decree notwithstanding such writ, order or decree being subsequently reversed, modified, annulled,
set aside or vacated; and (iv) notwithstanding anything herein to the contrary, the Escrow Agent will be under no duty to monitor
or enforce compliance by the TRA Party Representative or the Company with any term or provision of the Tax Receivable Agreement and the
Exchange Agreements. The Escrow Agent may perform any and all of its duties through its agents, representatives, attorneys, custodians,
and/or nominees. The Escrow Agent shall not be required to use its own funds in the performance of any of its obligations or duties or
the exercise of any of its rights or powers
(b) Resignation;
Removal; Appointment of New Escrow Agent. The Escrow Agent reserves the right to resign at any time by giving at least 30 days advance
written notice of resignation to the Company and the TRA Party Representative, specifying the effective date thereof. Similarly, the Escrow
Agent may be removed and replaced following the delivery of a 30 days advance written notice to the Escrow Agent by the Company and the
TRA Party Representative. Within 30 days after the receipt of one of the notices referred to above, the Company and the TRA Party Representative
agree to jointly appoint a successor escrow agent (a “Successor Agent”). The Successor Agent will become a party to
and must agree to be legally bound by this Agreement (with such modifications as may be agreed by the Company and the TRA Party Representative)
by means of a written joinder agreement, the signature page to which, when signed by the Successor Agent, will be deemed to be a
counterpart signature page to this Agreement. The Successor Agent will be deemed to be the Escrow Agent under the terms of this Agreement.
If a Successor Agent has not been appointed and/or has not accepted such appointment by the end of the 30-day period commencing upon the
receipt of the notice of resignation by the TRA Party Representative, the Escrow Agent may apply to a court of competent jurisdiction
for the appointment of a Successor Agent. The out-of-pocket costs, expenses and reasonable attorneys' fees incurred by the Escrow Agent
will be paid by the Company.
(c) Indemnification
of Escrow Agent. Without limiting any protection or indemnity of the Escrow Agent under any other provision hereof or otherwise at
law, the Company agrees to indemnify and hold harmless the Escrow Agent from and against any and all liabilities, losses, damages, penalties,
claims, actions, suits and out-of-pocket costs, expenses and disbursements, including reasonable out-of-pocket legal or advisor fees and
disbursements, which may be imposed on, incurred by or asserted against the Escrow Agent in connection with the performance of its duties
and obligations hereunder, other than such liabilities, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements
arising by reason of the Escrow Agent's fraud, gross negligence or willful misconduct. Notwithstanding the foregoing, the Company shall
not be required to indemnify the Escrow Agent with respect to any claim against any such party unless the Company is notified of the written
assertion of a claim against it, or of any action commenced against it, promptly after it shall have received any such written information
as to the nature and basis of the claim; provided, however, that failure to provide such notice shall not relieve the Company of any liability
hereunder if no prejudice occurs. This provision will survive the resignation or removal of the Escrow Agent, or the termination of this
Agreement.
(d) Duties.
The Escrow Agent will have only those duties as are specifically provided in this Agreement, which will be deemed purely ministerial in
nature, and will under no circumstance be deemed a fiduciary for any of the parties to this Agreement. The Escrow Agent will neither be
responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument or document between the
other parties hereto, in connection herewith, including, without limitation, the Tax Receivable Agreement and the Exchange Agreements.
This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and no additional obligations of the Escrow Agent
will be inferred from the terms of this Agreement or any other agreement. The permissive rights of the Escrow Agent to do things enumerated
in this Escrow Agreement shall not be construed as duties. IN NO EVENT WILL THE ESCROW AGENT, BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY
(i) DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OR (ii) SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
(e) Force
Majeure. The Escrow Agent shall not be responsible or liable for any failure or delay in the performance of its obligation under this
Escrow Agreement to the extent arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including,
without limitation, acts of God; earthquakes; fire; flood; wars; acts of terrorism; civil or military disturbances; sabotage; epidemic;
riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications services; accidents; labor
disputes; acts of civil or military authority or governmental action; it being understood that the Escrow Agent shall use commercially
reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable
under the circumstances.
7. Fees
and Reimbursement to the Escrow Agent.
(a) Fees.
The Escrow Agent will be entitled to be paid an aggregate fee of $7,500, to be borne solely by the Company, for its services for each
12-month period (or portion thereof, calculated on a prorated basis) this Agreement remains in effect until distribution of all of the
Escrow Account Assets in accordance with this Agreement. For the avoidance of doubt, there will be no separate wire fees or other similar
charges related to disbursements from the Escrow Account.
(b) Reimbursement.
All fees and expenses of the Escrow Agent for performing the duties of the Escrow Agent set forth in this Agreement will be borne by the
Company. The Escrow Agent will not be entitled to withdraw from the Escrow Account any fees, costs or expenses under this Agreement.
8. Termination.
This Agreement will terminate when all of the Escrow Funds have been distributed in accordance with this Agreement.
9. Miscellaneous.
(a) Notices.
All notices and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally
by hand (with written confirmation of receipt by other than automatic means, whether electronic or otherwise), (b) when sent by e-mail
(with non-automated written confirmation of receipt) or (c) one (1) Business Day following the day sent by an internationally
recognized overnight courier (with written confirmation of receipt), in each case, at the following addresses or e-mail addresses (or
to such other address or e-mail address as a party may have specified by notice given to the other party pursuant to this provision):
If to the Escrow Agent
to:
Wilmington Trust, National Association
Corporate Capital markets
50 South Sixth Street, Ste. 1290
Minneapolis, MN 55402
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E-mail:
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Attention:
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Telecopy:
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If to the Company
to:
Snap One Holdings Corp.
1800 Continental Blvd, Suite 300
Charlotte, North Carolina 28273
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E-mail:
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Attention:
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with a copy (which shall not constitute actual or constructive
notice) to:
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, California 94304
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Attention:
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E-mail:
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If to the TRA Party
Representative, to:
H&F Copper Holdings VIII, L.P.
c/o Hellman & Friedman LLC
415 Mission Street, Suite 5700
San Francisco, California 94105
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Attention:
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E-mail:
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with a copy (which shall not constitute actual or constructive
notice) to:
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, California 94304
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Attention:
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E-mail:
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(b) Governing
Law. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate
to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising
out of or related to any representation or warranty made in or in connection with this Agreement) will be governed by and construed in
accordance with the internal laws of the State of Delaware applicable to agreements executed and performed entirely within such State
without regards to conflicts of law principles of the State of Delaware or any other jurisdiction that would cause the laws of any jurisdiction
other than the State of Delaware to apply.
(c) Consent
to Jurisdiction and Service of Process. The Parties to this Agreement submit to the exclusive jurisdiction of the DELAWARE COURT OF
CHANCERY (OR, ONLY IF THE DELAWARE COURT OF CHANCERY DECLINES TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER, THE DELAWARE SUPREME COURT
OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE), AND ANY APPELLATE COURT FROM ANY THEREOF in respect of the interpretation
and enforcement of the provisions of this Agreement and any related agreement, certificate or other document delivered in connection herewith
and by this Agreement waive, and agree not to assert, any defense in any action for the interpretation or enforcement of this Agreement
and any related agreement, certificate or other document delivered in connection herewith, that they are not subject thereto or that such
action may not be brought or is not maintainable in such courts or that this Agreement may not be enforced in or by such courts or that
their property is exempt or immune from execution, that the action is brought in an inconvenient forum, or that the venue of the action
is improper. Service of process with respect thereto may be made upon THE COMPANY OR THE TRA PARTY REPRESENTATIVE by mailing a copy thereof
by registered or certified mail, postage prepaid, to such party at its address as provided in Section 10(b). each of the parties
hereto hereby irrevocably and unconditionally agree that a final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(d) Waiver
of Jury Trial. Each Party hereto hereby acknowledges and agrees that any controversy which may arise under this Agreement is likely
to involve complicated and difficult issues, and therefore each such Party hereby irrevocably and unconditionally waives any right such
Party may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Agreement or
the transactions contemplated by this Agreement. Each Party certifies and acknowledges that (i) no representative, agent or attorney
of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of litigation, seek to enforce
the foregoing waiver, (ii) each such Party understands and has considered the implications of this waiver, (iii) each such Party
makes this waiver voluntarily, and (iv) each such Party has been induced to enter into this agreement by, among other things, the
mutual waivers and certifications in this Section 10(D).
(e) Counterparts.
This Agreement, and any amendments hereto, may be executed in multiple counterparts (including by means of telecopied signature pages or
electronic transmission in portable document format (PDF)), any one of which need not contain the signatures of more than one party, but
all such counterparts taken together will constitute one and the same instrument. No party hereto will raise the use of a facsimile machine
or other electronic transmission to deliver a signature or the fact that this Agreement or any signature was transmitted or communicated
through the use of facsimile machine or other electronic means as a defense to the formation of a contract and each such party forever
waives any such defense. At the request of any party hereto, each other party hereto shall re-execute original forms hereof and deliver
them to all other parties. This Agreement, and any amendment, restatement, supplement or other modification hereto or waiver hereunder
to the extent signed and delivered by means of electronic signature (including by means of e-mail in .pdf format), shall be treated in
all manner and respect as an original contract and shall be considered to have the same binding legal effects as if it were the original
signed version thereof delivered in person.
(f) Successors
and Assigns. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations
hereunder may be assigned or delegated by any party hereto without the prior written consent of the other parties hereto. Notwithstanding
the foregoing, each of the TRA Party Representative and the Company may assign this Agreement or any of the rights or obligations hereunder
on the same basis it may assign the Tax Receivable Agreement mutatis mutandis.
(g) Amendment,
Waiver, etc. This Agreement will not be amended, modified, altered or revoked without the prior written consent of each of the
Company and the TRA Party Representative; provided, that no amendment or modification will be made to Section 7 or
Section 8 hereof or any other provision of this Agreement which impacts the rights or duties of the Escrow Agent without the
written consent of the Escrow Agent. The Company and the TRA Party Representative separately agree to provide to the Escrow Agent a copy
of all amendments and agree that the Escrow Agent will not be bound by such amendments until it has acknowledged receipt of a copy. No
failure or delay by a party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, and no single
or partial exercise thereof will preclude any right of further exercise or the exercise of any other right, power or privilege.
(h) Headings.
Section headings used herein are for convenience of reference only and will not be deemed to constitute a part of this Agreement
for any other purpose, or to limit, characterize or in any way affect any provision of this Agreement, and all provisions of this Agreement
will be enforced as if such headings had not been included herein.
(i) No
Strict Construction. The parties hereto hereby expressly acknowledge and agree that the language of this Agreement constitutes the
mutual intention and understanding of the parties, and that each party hereto has been represented by competent counsel in connection
herewith. Accordingly, each party hereto hereby waives any doctrine of strict construction with respect to the interpretation hereof or
the resolution of any ambiguities herein, and none of the foregoing will be resolved against any party as a result of any such doctrine.
(j) Complete
Agreement. This Agreement, the Tax Receivable Agreement, the Exchange Agreements and the documents referred to herein and therein
contain the complete agreement between the parties hereto and supersede any prior understandings, agreements or representations by or
between the parties, written or oral, which may have related to the subject matter hereof in any way.
(k) Business
Days. For the purpose hereof, the term “Business Day” means any day of the year on which national banking institutions
in New York City are open to the public for conducting business and are not required or authorized to be closed under applicable Law.
To the extent any payment or other action or delivery is required to be made on a date which is not a Business Day, then the period required
for such payment, action or delivery will automatically be extended to the next Business Day immediately following. All references to
a day or days will be deemed to refer to a calendar day or calendar days, as applicable, unless otherwise specifically provided.
(l) Severability.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective
only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions
of this Agreement, and the parties will amend or otherwise modify this Agreement to replace any prohibited or invalid provision with an
effective and valid provision that gives effect to the intent of the parties to the maximum extent permitted by applicable law.
(m) Third
Party Beneficiaries. Except as set forth herein, nothing herein expressed or implied is intended or will be construed to confer upon
or to give any Person other than the Escrow Agent, the TRA Party Representative and the Company any rights or remedies under or by reason
of this Agreement.
(n) Automatic
Succession. Any bank or corporation into which the Escrow Agent may be merged or with which it may be consolidated, or any bank or
corporation to whom the Escrow Agent may transfer a substantial amount of its escrow business, will be the successor to the Escrow Agent,
without the execution or filing of any paper or any further act on the part of any of the parties, anything herein to the contrary notwithstanding.
(o) Bankruptcy
Proceedings. In the event of the commencement of a bankruptcy case or cases wherein the TRA Party Representative or the Company is
the debtor, the Escrow Funds will not constitute property of the debtor's estate within the meaning of 11 U.S.C. § 541.
(p) Specific
Performance. The obligations of the parties hereto (including the Escrow Agent) are unique in that time is of the essence, and any
delay in performance hereunder by any party will result in irreparable harm to the other parties hereto. Accordingly, any party may seek
specific performance and/or injunctive relief before any court of competent jurisdiction in order to enforce this Agreement or to prevent
violations of the provisions hereof, and no party will object to specific performance or injunctive relief as an appropriate remedy. The
Escrow Agent acknowledges that its obligations, as well as the obligations of any party hereunder, are subject to the equitable remedy
of specific performance and/or injunctive relief.
* * * * *
IN WITNESS WHEREOF, the parties
have executed this Agreement on the date first written above.
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COMPANY:
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SNAP ONE HOLDINGS CORP.
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By:
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Name:
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Its:
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TRA PARTY REPRESENTATIVE:
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H&F COPPER HOLDINGS VIII, L.P.
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By: H&F Copper Holdings VIII GP, LLC, its general partner
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By:
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Name:
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Its:
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ESCROW AGENT:
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WILMINGTON TRUST, NATIONAL ASSOCIATION,
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as Escrow Agent
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By:
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Name:
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Its:
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EXHIBIT A-1
CERTIFICATE AS TO AUTHORIZED REPRESENTATIVES
OF HOLDINGS
Snap One Holdings Corp, a Delaware corporation
(the “Company”) hereby designates each of the following persons as its Authorized Representatives for purposes of this
Agreement, and confirms that the title, contact information and specimen signature of each such person as set forth below is true and
correct. Each such Authorized Representative is authorized to initiate and approve transactions of all types for the Escrow Account established
under the Agreement to which this Exhibit A-1 is attached, on behalf of the Company.
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Name (print):
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[●]
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Specimen Signature:
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Title:
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[●]
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Telephone Number (required):
If more than one, list all
applicable telephone numbers.
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Office: [●]
Cell:
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E-mail (required):
If more than one, list all applicable email
addresses.
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Email 1: [●]
Email 2:
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Name (print):
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[●]
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Specimen Signature:
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Title:
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[●]
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Telephone Number (required):
If more than one, list all
applicable telephone numbers.
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Office: [●]
Cell:
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E-mail (required):
If more than one, list all applicable email
addresses.
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Email 1: [●]
Email 2:
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EXHIBIT A-2
CERTIFICATE AS TO AUTHORIZED REPRESENTATIVES
OF THE TRA PARTY REPRESENTATIVE
[●], a [●] (the “TRA Party
Representative”) hereby designates each of the following persons as its Authorized Representatives for purposes of this Agreement,
and confirms that the title, contact information and specimen signature of each such person as set forth below is true and correct. Each
such Authorized Representative is authorized to initiate and approve transactions of all types for the Escrow Agent Account established
under the Agreement to which this Exhibit A-2 is attached, on behalf of the TRA Party Representative.
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Name (print):
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Specimen Signature:
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Title:
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Telephone Number (required):
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E-mail (required):
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Name (print):
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Specimen Signature:
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Title:
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Telephone Number (required):
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E-mail (required):
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Name (print):
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Specimen Signature:
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Title:
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Telephone Number (required):
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E-mail (required):
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Name (print):
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Specimen Signature:
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Title:
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Telephone Number (required):
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E-mail (required):
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Exhibit 10.16
Execution Copy
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment
Agreement (this “Agreement”) is made as of August 4, 2017, between WirePath Home Systems, LLC, d/b/a SnapAV, a
North Carolina limited liability company (the “Company”), and John Heyman (“Executive”). The Company
and Executive are sometimes hereinafter referred to individually as a “Party” and together as “Parties.”
WHEREAS, Executive and the Company
previously entered into an employment agreement, dated January 26, 2015 (the “Prior Agreement”).
WHEREAS, Amplify Holdings LLC,
an indirect parent to the Company, General Atlantic (Amplify) Holdco LLC, General Atlantic (Amplify) LLC, Corporate Purchaser Corp., Crackle
Merger Sub I Corp., Crackle Merger Sub II Corp., GA Escrow, LLC, as seller representative, and JWF Rollover, LLC, as the merger participant
tax representative, have entered into an Agreement and Plan of Merger, dated as of June 19, 2017 (the “Merger Agreement”).
WHEREAS, in connection with
the execution of that certain Rollover Agreement (the “Rollover Agreement”) between Crackle Holdings, L.P. (“Crackle”),
Crackle Intermediate Corp. and Executive, Executive agreed to the employment terms set forth on Exhibit C of the Rollover Agreement.
WHEREAS, this Agreement, which
is conditioned upon the closing of the transactions contemplated by the Merger Agreement (the “Effective Date”) and
should the closing fail to occur for any reason, this Agreement shall be null and void ab initio, amends and restates the Prior Agreement,
to reflect the employment terms set forth in the Rollover Agreement.
WHEREAS, subject to the terms
and conditions set forth herein, the Company desires to continue to employ Executive as its Chief Executive Officer, and Executive wishes
to enter into such employment on the basis set forth in this Agreement.
NOW THEREFORE, in consideration
of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereto agree as follows:
1. Employment;
Term. Subject to the terms and conditions set forth in this Agreement, the Company hereby offers and Executive hereby accepts continued
employment, effective as of the Effective Date. This Agreement and Executive’s employment hereunder shall be effective as of the
Effective Date and, unless sooner terminated as provided in Section 5 hereof, shall continue until the fifth anniversary of the Effective
Date (the “Initial Term”), and shall be automatically extended thereafter for successive terms of one (1) year
each (each a “Renewal Term” and, together with the Initial Term, the “Employment Period”), unless
either party provides notice to the other at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term that
the Agreement is not to be extended.
(a) During
the Employment Period, Executive will serve as the Chief Executive Officer of the Company and will have the normal duties, responsibilities
and authority of this office, subject to the power of the Board (as defined below), to expand or limit such duties, responsibilities and
authority and to override Executive’s actions. Executive will report directly to the Board. Executive’s duties and responsibilities
shall include, without limitation, carrying out the policies and directives of the Board; executing the strategic direction of the Company;
advising and making recommendations to the Board on potential acquisitions, dispositions and financings; maintaining and developing relationships
with the Company’s suppliers, customer and lenders; and overseeing other officers and employees of the Company. Executive shall
be a member of the Board for so long as he is serving as the Chief Executive Officer of the Company under this Agreement. As used herein,
the “Board” shall mean the Board of Directors of Crackle Holdings GP, LLC, a Delaware limited liability company; provided,
however, that in the case of an initial public offering (“IPO”) involving the Company, the “Board” shall
mean the board of directors of the IPO corporation and, in the case of any other restructuring involving the Company, the “Board”
shall mean the board of directors of the top tier holding company.
(b) During
the Employment Period, Executive (i) will devote his best efforts and his full business time and attention to the business and affairs
of the Company and its Affiliates, (ii) will not engage in any other material business activity without the prior written approval
of the Board (such approval not to be unreasonably withheld); provided, however, that Executive shall be entitled to continue in his current
positions as a member of the boards of directors previously disclosed to the Board in connection with entry into this Agreement, and
(iii) will perform his duties and responsibilities
hereunder to the best of his abilities in a diligent, trustworthy and businesslike manner.
(c) Executive’s
principal place of employment shall be at the Company’s headquarters at a location prescribed by the Company, which as of the Effective
Date is in the Charlotte, North Carolina area (the “Principal Place of Employment”).
(a) During
the Employment Period, the Company shall pay Executive a base salary at the rate of $500,000 per annum, payable in accordance with the
payroll practices of the Company for its executives. Such base salary, as the same may from time to time be increased (but not decreased)
at the discretion of the Board, is hereafter referred to as the “Base Salary.”
(b) During
the Employment Period, for each Fiscal Year starting with Fiscal Year 2017, Executive will be eligible to receive a bonus under the
Company’s annual incentive bonus plan in an amount up to 50% of Base Salary (such percentage being applied on a pro rata basis
if Executive’s Base Salary changes during a particular compensation period). Each Fiscal Year’s bonus award pursuant to
this Section 3(b) shall hereinafter be referred to as the “Annual Bonus.” The amount of any Annual Bonus will
be determined in the sole discretion of the Board, based on performance against specified EBITDA or other objectives established by
the Board. Any Annual Bonus that Executive shall actually become entitled to receive hereunder for any Fiscal Year will be payable
by the Company in the following Fiscal Year at such time and in such manner that annual bonuses are paid to other senior executives
of the Company, subject to the Board’s receipt of the audited financials for the Fiscal Year to which the Annual Bonus,
if any, relates and provided that (except as otherwise provided in Section 5) Executive remains employed with the Company
through the applicable payment date.
4. Benefits.
In addition to the Base Salary and other compensation provided for in Section 3 above, Executive will be entitled to the following
benefits during the Employment Period:
(a) Executive
will be entitled to participate in the Company’s health and welfare benefit programs and vacation and other benefit programs from
time to time in effect for executives of the Company generally, except to the extent such plans are in a category of benefits otherwise
provided to Executive (e.g., severance pay). Such participation shall be subject to the terms of the applicable plan documents
and generally applicable Company policies. Nothing herein, however, is intended, or shall be construed, to require the Company or its
Affiliates to institute or continue any particular benefit plan or arrangement, and such benefit plans or arrangements may be changed,
terminated or reduced from time to time.
(b) Executive
shall receive, on or about the Effective Date, a profits interest award pursuant to and in accordance with Crackle’s 2017 Class B
Unit Incentive Plan, pursuant to the terms of an award agreement to be provided to him.
(c) The
Company will reimburse Executive for all reasonable expenses incurred by him in the course of performing his duties and responsibilities
under this Agreement which are consistent with the Company’s policies in effect from time to time with respect to travel, entertainment
and other business expenses, subject to the Company’s requirements with respect to reporting and documentation of such expenses;
provided, that, in connection with any travel required in the course of performing his duties and responsibilities under this Agreement,
Executive shall be entitled to first-class travel.
(d) Executive
shall, consistent with past practice, be reimbursed for Executive’s reasonable air travel costs between Atlanta, Georgia and Charlotte,
North Carolina on Executive’s private plane, subject to an annual cap of $150,000.
(a) Notwithstanding
Section 1 of this Agreement, Executive’s employment with the Company and the Employment Period will end on the earlier of
(i) Executive’s death, (ii) termination
by the Company due to Executive’s Disability, (iii) Executive’s resignation with Good Reason provided that
Executive provides 30 days’ advance written notice, (iv) Executive’s resignation without Good Reason provided that
Executive provides 60 days’ advance written notice or (v) termination by the Company at any time with or without Cause.
Except as otherwise provided herein, any termination of the Employment Period by the Company or by Executive will be effective as
specified in a written notice from the terminating Party to the other Party. Upon termination of Executive’s employment,
Executive, upon request of the Board, shall resign from any positions he has with the Company and its Affiliates (whether as an
officer, director, consultant or otherwise), and Executive agrees to execute such documents as may be reasonably requested by the
Company to effectuate the foregoing.
(b) Upon
any termination of Executive’s employment, Executive will be entitled to receive (i) his Base Salary through the date of termination,
(ii) payments for any vacation time accrued during the portion of the then-current calendar year ending with the date of such termination
and not used prior to that date, (iii) unless such termination was initiated by the Company for Cause or by Executive without Good
Reason, any earned but unpaid Annual Bonus for any Fiscal Year preceding the year of termination, (iv) any business expenses incurred
by Executive but unreimbursed on the date of termination, provided that such expenses and required substantiation and documentation thereof
are submitted within 30 days of termination (or 90 days in the case of termination due to death or Disability) and that such expenses
are reimbursable under applicable Company policy, and (v) all other vested compensation or benefits under applicable employee benefit
plans, in accordance with the terms of such plans. Except as otherwise expressly provided herein, all of Executive’s rights to salary,
bonuses, fringe benefits, severance and other compensation hereunder or under any policy or program or benefit plans of the Company or
any of its Affiliates which might otherwise accrue or become payable on or after the termination of the Employment Period will cease upon
such termination other than vested retirement benefits or insurance continuation rights expressly required under applicable law (such
as the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”)).
(c) If
Executive’s employment with the Company is terminated during the Employment Period due to Executive’s death or by the Company
due to Executive’s Disability, the Company will pay Executive, subject to Executive’s or his estate’s satisfaction of
the Release Condition (defined below), an amount equal to the pro rata portion of the Annual Bonus Executive would have earned
(based on number of days Executive was employed by the Company in the applicable Fiscal Year) for the Fiscal Year in which the termination
of Executive’s employment occurs, which Annual Bonus shall be paid at the same time annual bonuses are paid to other active employees
of the Company.
(d) If
(i) Executive’s employment with the Company is terminated during the Employment Period by Executive with Good Reason or by
the Company without Cause and, in either case, (ii) Executive executes a general release in the form attached hereto and such release
becomes effective and is not revoked or rescinded within 30 days following such termination (the “Release Condition”),
and (iii) Executive complies with the material terms of the restrictive covenants set forth in Sections 7 through 11 hereof, then
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(x)
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the Company will pay Executive his continued Base Salary for a period equal to twelve (12) months after the date of termination (the
“Salary Continuation Period”), at the Base Salary rate in effect at the time of termination; provided, that in the
event of Executive’s resignation for Good Reason due to a reduction in Base Salary, the Base Salary rate used for purposes of this
clause (x) shall be determined without regard to any such reduction of Base Salary;
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(y)
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the Company will pay Executive an amount equal to the pro rata portion of the Annual Bonus Executive would have earned (based
on number of days Executive was employed by the Company in the applicable Fiscal Year) for the Fiscal Year in which the termination of
Executive’s employment occurs, which Annual Bonus shall be paid at the
same time annual bonuses are paid to other active employees of the Company; and
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(z)
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if Executive is enrolled in the Company’s medical and dental plans on the date of termination and provided that Executive is
entitled to continue such participation under applicable law and plan terms, if Executive elects to continue his participation and that
of his eligible dependents in those plans for a period of time under COBRA, then, until the conclusion of the Salary Continuation Period,
or, if earlier, until the date Executive begins new employment where he is offered participation in a group health plan, the Company will
reimburse (on a monthly basis) Executive for the premium cost of his coverage and that of his eligible dependents under those plans at
the rate it contributed to Executive’s premium cost of coverage on the date of termination. To be eligible for these Company premium
contributions under clause (z) of this Section 5(d), however, Executive must pay his portion of the premium cost during the
Salary Continuation Period at the rate he paid on the date of termination. Executive is required to notify the Company immediately if
he begins new employment during the Salary Continuation Period and to repay promptly any excess benefits contributions made by the Company
under clause (z) of this Section 5(d). After the Company’s contributions under clause (z) of this Section 5(d) end,
Executive may continue benefits coverage for the remainder of the COBRA period, if any, by paying the full premium cost of such benefits.
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The severance payments payable
to Executive pursuant to clause (x) of this Section 5(d), will be paid at the time and in the manner set forth in Section 3
hereof, provided that payments and benefits of amounts which do not constitute nonqualified deferred compensation and are not subject
to Section 409A (defined below) shall commence five (5) days after the Release Condition is satisfied and payments and benefits
which are subject to Section 409A shall commence on the 60th day after termination of employment (subject to further delay, if required
pursuant to Section 21(d) below) provided that the Release Condition is satisfied.
Notwithstanding the foregoing,
if Executive’s employment with the Company is terminated by Executive with Good Reason or by the Company without Cause effective
as of a date on or within 30 days following a Sponsor Exit, the severance payments payable to Executive pursuant to clause (x) of
this Section 5(d) shall be payable in one lump sum on or within 30 days following the date of such termination. For purposes
of this Agreement, a “Sponsor Exit” shall have the meaning attributed to it under the Crackle Holdings, L.P. 2017 Class B
Unit Incentive Plan Class B Unit Award Agreement by and between Crackle and Executive, entered into in connection with the profits
interest award to Executive referenced in Exhibit C of the Rollover Agreement; provided, that, for purposes of this Agreement, to
extent the severance payments payable to Executive pursuant to clause (x) of this Section 5(d) would constitute nonqualified
deferred compensation subject to Section 409A, a Sponsor Exit shall not be deemed to occur unless the event giving rise to the Sponsor
Exit satisfies the definition of a change in the ownership or effective control of a corporation, or a
change in the ownership of a substantial portion of the assets of a corporation pursuant to Section 409A.
(e) For
purposes of this Agreement, “Cause” means (i) the conviction of, or plea of nolo contendere by, Executive
to a felony or other crime involving dishonesty, (ii) fraud; embezzlement, theft or any misappropriation of any material amount of
money or other assets or property of the Company or any of its Affiliates, (iii) willful failure to perform, or gross negligence
in the performance of Executive’s duties and responsibilities to the Company and its Affiliates, or willful failure to follow the
lawful directives of the Board which remains uncured ten (10) business days after written notice of such failure or negligence specifying
in reasonable detail the nature of such failure or negligence is given to Executive by the Company, (iv) Executive’s willful
misconduct that results in a material adverse effect of the business, reputation or financial condition of the Company or any of its Affiliates,
(v) Executive’s material breach of this Agreement, Section 7, 8, 9, 10 or 11 hereof, or the Limited Partnership Agreement
of Crackle (as may be amended from time to time), or (vi) the conviction of, or plea of nolo contendere by, Executive to a
crime involving moral turpitude that results in a material adverse effect on the business, reputation or financial condition of the Company
or any of its Affiliates.
(f) For
purposes of this Agreement, “Good Reason” means a termination of Executive’s employment with the Company by Executive
following: (i) a reduction in Executive’s rate of Base Salary or the dollar amount of his target bonus opportunity; (ii) Company’s
material breach of this Agreement; (iii) a material diminution of Executive’s authority, duties and responsibilities, provided,
that, Good Reason shall not exist under this clause (iii) if such material diminution of authority, duties and responsibilities is
a result of: (1) the hiring of additional subordinates to fill some of Executive’s duties and responsibilities, or (2) any
disposition or sale of any subsidiary of business of the Company; (iv) the relocation of Executive’s Principal Place of Employment
to a location that increases by 25 miles Executive’s one-way commute from his residence, provided that Executive had relocated his
residence to the same metropolitan area as the Principal Place of Employment was originally located; provided, however, that in each case,
Executive may not terminate his employment for Good Reason unless Executive (A) provides the Company with 30 days’ advance
written notice of his intent to resign for Good Reason, (B) such notice is given within 90 days of the events or circumstances claimed
to give rise to Good Reason, (C) the Company fails to cure such alleged violation within 30 days after Executive delivers such notice
and (D) if the Company fails to cure such alleged violation, Executive must terminate his employment within five months of the initial
occurrence of the facts or circumstances giving rise to Good Reason.
(g) For
the avoidance of doubt, if the Company gives notice in accordance with Section 1 above that the Employment Period is not to be extended
(or further extended), neither such notice nor expiration of the Employment Period of Executive’s employment under this Agreement
(i) shall give rise to Good Reason, or (ii) result in the termination of Executive’s employment with the Company; provided,
that if the Company gives notice in accordance with Section 1 above that the Initial Term is not to be extended, and Executive resigns
from his employment effective as of the expiration of the Initial Term and gives the Company notice of his resignation within 30 days
after receipt of the Company’s notice of nonrenewal, then, provided that the Release Condition is satisfied and Executive complies
with the material terms of the restrictive covenants set forth in Sections 7 through 11 hereof, the Company will pay Executive his continued Base Salary for a period
equal to six (6) months after the date of termination, in accordance with the time and form of payment provisions set forth in Section 5(d).
If the Employment Term of Executive’s employment under this Agreement is not extended (or further extended), but Executive’s
employment continues after the expiration of such Employment Term, then such continued employment shall be on an “at will”
basis upon such terms as the Company may prescribe; and if such “at will” employment is terminated by the Company, Executive’s
right to severance shall be determined and be payable in accordance with the Company’s policies in effect at such time, if any.
(h) In
the event of any termination of Executive’s employment under this Agreement, Executive shall be under no obligation to seek other
employment, and there shall be no offset against amounts due Executive under this Agreement on account of any remuneration attributable
to any subsequent employment that he may obtain.
(a) Executive
acknowledges that the Company has expended and shall continue to expend substantial amounts of time, money and effort to develop business
strategies, employee and customer relationships and goodwill and build an effective organization. Executive acknowledges that Executive
is and shall become familiar with the Company’s Confidential Information (as defined below), including trade secrets, and that Executive’s
services are of special, unique and extraordinary value to the Company, its subsidiaries and Affiliates. Executive acknowledges that the
Company has a legitimate business interest and right in protecting its Confidential Information, business strategies, employee and customer
relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss
or deterioration of its business strategies, employee and customer relationships and goodwill.
(b) Executive
acknowledges that Executive has carefully read this Agreement and has given careful consideration to the restraints imposed upon Executive
by this Agreement, and is in full accord as to the necessity of such restraints for the reasonable and proper protection of the Confidential
Information, business strategies, employee and customer relationships and goodwill of the Company and its subsidiaries and Affiliates
now existing or to be developed in the future. Executive expressly acknowledges and agrees that each and every restraint imposed by this
Agreement is reasonable with respect to subject matter, time period and geographical area. Executive further acknowledges that although
Executive’s compliance with the covenants contained in Sections 7, 8, 9, 10 and 11 may prevent Executive from earning a livelihood
in a business similar to the business of the Company, Executive’s experience and capabilities are such that Executive has other
opportunities to earn a livelihood and adequate means of support for Executive and Executive’s dependents.
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7.
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Noncompetition and Interfering Activities.
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(a) Noncompetition.
In consideration for the payments and benefits provided under this Agreement, Executive agrees that he shall not, directly or
indirectly, without the prior written consent of the Company, at any time during the period that he is employed by the Company or
its Affiliate and for the two (2) year period following the date on which he ceases to be an employee of the Company or
its Affiliate (the “Restricted Period”): (A) perform services for any Competing Entity (defined below)
(whether as a stockholder, officer, director, employee, agent, security holder, creditor, independent contractor, consultant, or
otherwise) that are the same or similar to any services that the undersigned performed for the Company or that otherwise utilize
skills, knowledge, and/or business contacts and relationships that the undersigned utilized while providing services to the Company,
or (B) own, manage, operate, control, participate in the ownership, management, operation or control of, or have any interest
in, any Competing Entity (whether as a stockholder, officer, director, employee, agent, security holder, creditor, independent
contractor, consultant, or otherwise), in case of each of clauses (A) or (B), within the continental United States, Europe or
any other region where the Company conducts or is Contemplating conducting the Business. “Competing Entity” means
any firm, corporation, partnership, trust, or other business, entity or person, that, directly or indirectly (through any subsidiary
or otherwise) engages in or is competitive with (i) the business of manufacturing or distributing audio or visual equipment or
components, networking equipment or components or security equipment or components, in each case on a retail or wholesale basis or
(ii) any business in which the Company is contemplating in engaging if Executive has actual or constructive knowledge of such
contemplation (clauses (i) and (ii) collectively, the “Business”). Nothing contained in this Agreement
shall prohibit Executive from owning less than two percent (2%) of any class of securities listed on a national securities exchange
or traded publicly in the over-the-counter market. Executive acknowledges that the Business is conducted in the continental United
States and contemplates expanding into Europe and that, therefore, the geographic restrictions set forth in this Section 7 are
reasonable and necessary to protect the Company’s legitimate business interests. For purposes of this Agreement, the Company
will only be deemed to be “Contemplating” to take an action if such action is set forth in writing in its
corporate records, including any written business plan.
(b) Interfering
Activities. During the Restricted Period, Executive shall not, directly or indirectly for his own account or for the account of
any other person, firm, corporation, partnership or business, engage in Interfering Activities. “Interfering
Activities” means (A) recruiting, encouraging, soliciting, or inducing, or in any manner attempting to recruit,
encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of the Company Group to
terminate such person’s employment or services (or in the case of a consultant, materially reducing such services) with the
Company Group, (B) hiring any individual who was employed by the Company Group within the six (6) month period prior to
the date of such hiring, or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or
induce, any Business Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in
any way interfering with the relationship between any such Business Relation and the Company Group, including, without limitation,
soliciting (i) any customer of the Company Group for the purpose of selling or providing any products or services competitive
with the Business, or (ii) any vendor of the Company Group for the purpose of offering to sell any of such vendor’s
products or services in competition with the Business. For the purposes of this Agreement, “Business Relation”
means any current or prospective client, customer, licensee, supplier, vendor or other business relation of the Company Group, or
any such relation that was a client, customer, licensee or other business relation within the prior six (6) month period, in
each case, with whom Executive transacted business or whose identity became known to Executive in connection with his employment
hereunder and “Company Group” means Crackle together with its direct and indirect subsidiaries (including the
Company).
(c) Without
limiting Section 19, if a final and non-appealable judicial determination is made that any of the provisions of this Section 7
constitutes an unreasonable or otherwise unenforceable restriction against Executive, the provisions of this Section 7 will not be
rendered void but will be deemed to be modified to the minimum extent necessary to remain in force and effect for the longest period and
largest geographic area that would not constitute such an unreasonable or unenforceable restriction. Moreover, and without limiting the
generality of Section 13, notwithstanding the fact that any provision of this Section 7 is determined not to be specifically
enforceable, the Company will nevertheless be entitled to recover monetary damages as a result of Executive’s breach of such provision.
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8.
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Nondisclosure of Confidential Information.
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(a) Recognition
of Company’s Rights; Nondisclosure. At all times during Executive’s employment and thereafter, Executive will hold in
strictest confidence and will not disclose, use, lecture upon or publish any of the Company’s Proprietary Information or Confidential
Information (each, as defined below), except as such disclosure, use or publication may be (a) required in connection with the services
provided by Executive for the Company, (b) expressly authorized by the Company in writing, (c) required to enforce any legal
rights he may have or (d) required to be disclosed by law, regulation, regulatory authority or other applicable judicial or governmental
order or legal process (provided that, in such event, Executive shall, to the extent permitted by law, provide the Company with notice
thereof so that the Company may attempt to obtain a protective order or other assurance that confidential treatment will be accorded such
information); provided, however, that with respect to any of the Company’s Proprietary Information or Confidential
Information that constitutes a trade secret under applicable law, such obligations shall survive so long as the Proprietary Information
or Confidential Information remains a trade secret. During the Restricted Period, Executive must obtain the Company’s written approval
before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to Executive’s work at,
for, or on behalf of the Company and which incorporates any Proprietary Information or Confidential Information. Executive hereby assigns
to the Company any rights that Executive may have or acquire in such Proprietary Information and recognizes that all Proprietary Information
shall be the sole property of the Company and its assigns or successors in interest. In addition, Executive hereby agrees that, except
as required by applicable law, Executive will not disclose to any Person, other than Executive’s spouse and legal, financial and
other advisors (if any), the terms or provisions of this Agreement, or the grant or issuance of profits interests or other equity, without
the prior approval of the Company or Crackle, as appropriate. Executive further agrees that he will instruct his legal, financial and
other advisors (if any) to maintain the confidentiality of this Agreement and its terms.
(b) Proprietary
Information. The term “Proprietary Information” shall mean any and all information and any idea of whatever
form, tangible or intangible, pertaining in any manner to the business of the Company, or any of its Affiliates, if any, or its
employees, clients, consultants, business associates, vendors, parties with which it performs services to or parties performing
services, or products to the Company, which was (i) produced by Executive or any employee or consultant of the Company
in the course of his or her employment, consulting or other service relationship with the Company or (ii) otherwise produced or
acquired by or on behalf of the Company on or prior to the date of Executive’s cessation of employment. All Proprietary
Information not generally known outside of the Company’s organization, and all Proprietary Information so known only through
improper means, shall be deemed “Confidential Information.” By way of example and without limiting the foregoing
definition, Proprietary Information and Confidential Information shall include, but not be limited to (a) trade secrets,
research and development techniques, inventions, mask works, ideas, processes, products, methods, formulas, source and object codes,
data, programs, other works of authorship, patents, patent applications, know-how, improvements, research projects, formats,
discoveries, developments, designs, drawings, techniques, clinical data, test data, results and samples, computer software and
programs, electronic codes (hereinafter collectively referred to as “Inventions”); and (b) information
regarding plans for research, development, new products, marketing and selling, business and strategic plans, budgets and financial
statements, licenses, prices and costs, suppliers, vendors, and clients; and (c) information regarding the skills and
compensation of employees of the Company. Confidential Information is to be broadly defined, and includes all information that has
or could have commercial value or other utility in the business in which the Company is engaged or Contemplates engaging, and all
information of which the unauthorized disclosure could be detrimental to the interests of the Company, whether or not such
information is identified as Confidential Information by the Company. Notwithstanding anything to the contrary herein, Proprietary
Information and Confidential Information shall not include any information that is or becomes generally available to the public
other than as a result of an unauthorized disclosure.
(c) Third-Party
Information. Executive understands that the Company has received and in the future will receive from third parties confidential or
proprietary information (“Third-Party Information”) subject to a duty on the Company’s part to maintain the confidentiality
of such information and to use it only for certain limited purposes. During Executive’s employment and thereafter, Executive will
hold Third-Party Information in the strictest confidence and will not disclose to anyone (other than Company personnel who need to know
such information in connection with their work for the Company) or use, except in connection with Executive’s work for the Company,
Third-Party Information unless expressly authorized by an officer of the Company in writing.
(d) No
Improper Use of Information of Prior Employers and Others. During Executive’s employment, Executive will not improperly use
or disclose any confidential information or trade secrets, if any, of any other Person to whom Executive has an obligation of confidentiality.
(e) Protected
Activity. Nothing in this Agreement shall prohibit or impede Executive from communicating, cooperating or filing a complaint
with any U.S. federal, state or local governmental or law enforcement branch, agency or entity (collectively, a
“Governmental Entity”) with respect to possible violations of any U.S. federal, state or local law or regulation,
or otherwise making disclosures to any Governmental Entity, in each case, that are protected under the whistleblower provisions of
any such law or regulation; provided, that in each case such communications and disclosures are consistent with applicable law.
Executive understands and acknowledges that an individual shall not be held criminally or civilly liable under any federal or state
trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government
official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or (ii) in a
complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Executive understands and
acknowledges further that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of
law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if
the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to
court order. Except as otherwise provided in this paragraph or under applicable law, under no circumstance is Executive authorized
to disclose any information covered by the Company’s attorney-client privilege or attorney work product, or the
Company’s trade secrets, without the prior written consent of the Company. Executive does not need the prior authorization of
(or to give notice to) any member of the Company Group regarding any communication, disclosure, or activity described in this
paragraph.
9. Return
of Property. Executive acknowledges and agrees that all notes, records, reports, sketches, plans, unpublished memoranda or other documents,
whether in paper, electronic or other form (and all copies thereof), held by Executive concerning any information relating to the business
of the Company or any of its Affiliates, whether confidential or not, are the property of the Company. Executive will deliver to the Company
at the termination of his employment, or at any other time the Company may request, all equipment, files, property, memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other documents and data (and all electronic, paper or other copies
thereof) belonging to the Company or any of its Affiliates, which includes, but is not limited to, any materials that contain, embody
or relate to confidential information, work product, or the business of the Company or any of its Affiliates, which he may then possess
or have under his control.
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10.
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Intellectual Property Rights.
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(a) Proprietary
Rights. The term “Proprietary Rights” shall mean all trade secret, patent, copyright, mask work and other intellectual
property rights throughout the world.
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(b)
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Assignment of Inventions. Subject to Section 10(d):
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(i) Executive
hereby assigns and agrees to assign to the Company all of Executive’s right, title and interest, if any, in and to any and all Inventions
licensed to the Company and all other Inventions (and all Proprietary Rights with respect thereto) that exist on the date hereof, whether
or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by Executive,
either alone or jointly with others, during the period of Executive’s affiliation with the Company or any predecessor thereof, as
a stockholder, officer, director, agent, consultant or employee, in each case, pertaining in any manner to the business of the Company,
or any of its Affiliates.
(ii) Executive
hereby further assigns and agrees to assign in the future (when any such Inventions or Proprietary Rights are first reduced to
practice or first fixed in a tangible medium, as applicable) to the Company all of Executive’s right, title and interest in
and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable
under copyright or similar statutes, made or conceived or reduced to practice or learned by Executive, either alone or jointly with
others; during the period of Executive’s employment with the Company, in each case, pertaining in any manner to the business
of the Company, or any of its Affiliates.
(iii) Inventions
assigned to the Company, or to a third party as directed by the Company pursuant to this Section 10(b), are hereinafter referred
to as “Company Inventions.”
(c) Obligation
to keep Company Informed. Executive will promptly disclose to the Company all patent applications filed by Executive or on Executive’s
behalf during the course of his employment and within two (2) years after termination thereof.
(d) Third
Party. Executive also agrees to assign all of Executive’s right, title and interest in and to any particular Invention pertaining
in any manner to the business of the Company or any of its Affiliates to a third party as directed by the Company.
(e) Works
for Hire. Executive acknowledges that all original works of authorship which are made by Executive (solely or jointly with others)
within the scope of Executive’s services to the Company and which are protectable by copyright are “works made for hire,”
pursuant to United States Copyright Act (17 U.S.C. § 101, et. seq.).
(f) Enforcement
of Proprietary Rights. At the Company’s sole cost and expense, Executive will assist the Company in every proper way to obtain,
and from time to time enforce, U.S. and non-U.S. Proprietary Rights relating to Company Inventions in any and all countries. To that end,
at the Company’s sole cost and expense, Executive will execute, verify and deliver such documents and perform such other acts (including
appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining
and enforcing such Proprietary Rights and the assignment thereof. In addition, at the Company’s sole cost and expense, Executive
will execute, verify and deliver assignments of such Proprietary Rights to the Company or its designee. Executive’s obligation to
assist the Company with respect to Proprietary Rights relating to such Company Inventions in any and all countries shall continue beyond
the termination of Executive’s employment, but the Company shall compensate Executive at a reasonable rate (mutually agreed to)
after the termination of Executive’s employment for the time actually spent by Executive at the Company’s request on such
assistance.
(g) In
the event the Company is unable for any reason, after reasonable effort, to secure Executive’s signature on any document needed
in connection with the actions specified in the preceding paragraph, Executive hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as Executive’s agent and attorney in fact, which appointment is coupled with an interest,
to act for and in Executive’s behalf to execute, verify and file any such documents and to do all other lawfully permitted acts
to further the purposes of the preceding paragraph with the same legal force and effect as if executed by him. Executive hereby waives
and quitclaims to the Company any and all claims, of any nature whatsoever, which Executive now or may hereafter have for infringement
of any Proprietary Rights assigned hereunder to the Company.
11. Nondisparagement.
Executive shall not, whether in writing or orally, malign, denigrate or disparage the Company, its subsidiaries or Affiliates or their
respective predecessors and successors, or any of the current or former directors, officers, employees, shareholders, partners, members,
agents or representatives of any of the foregoing, with respect to any of their respective past or present activities, or otherwise publish
(whether in writing or orally) statements that tend to portray any of the aforementioned parties in an unfavorable light. The Company
shall not, whether in writing or orally, malign, denigrate or disparage Executive with respect to any of his respective past or present
activities, or otherwise publish (whether in writing or orally) statements that tend to portray Executive in an unfavorable light. Notwithstanding
the foregoing, nothing herein shall or shall be deemed to prevent or impair any party from testifying truthfully in any legal or administrative
proceeding if such testimony is compelled or requested (or otherwise complying with legal requirements).
12. Notification
of Subsequent Employer. Executive hereby agrees that prior to accepting employment with, or agreeing to provide services to, any other
Person during any period during which Executive remains subject to any of the covenants set forth in Section 7, Executive shall provide
such prospective employer with written notice of such provisions of this Agreement, with a copy of such notice delivered simultaneously
to the Company.
13. Remedies
and Injunctive Relief. Executive acknowledges that a violation by Executive of any of the covenants contained in Section 7, 8,
9, 10 or 11 would cause irreparable damage to the Company and/or Group in an amount that would be material but not readily ascertainable,
and that any remedy at law (including the payment of damages) would be inadequate. Accordingly, Executive agrees that, notwithstanding
any provision of this Agreement to the contrary, the Company and/or Group shall be entitled (without the necessity of showing economic
loss or other actual damage) to injunctive relief (including temporary restraining orders, preliminary injunctions and/or permanent injunctions)
in any court of competent jurisdiction for any actual or threatened breach of any of the covenants set forth in Section 7, 8, 9,
10 or 11 in addition to any other legal or equitable remedies they may have. The preceding sentence shall not be construed as a waiver
of the rights that the Company may have for damages under this Agreement or otherwise, and all of the Company’s rights shall be
unrestricted.
14. Executive’s
Representations. Executive hereby represents and warrants to the Company that (a) he has entered into this Agreement of his
own free will for no consideration other than as referred to herein, (b) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Executive is a party or by which Executive is bound, (c) Executive is not a
party to or bound by any employment, non- competition, confidentiality or other similar agreement with any other Person, or other
agreement that would affect the performance of his obligations hereunder or would otherwise conflict with, prevent or restrict the
full performance of Executive’s duties and obligations to the Company hereunder during or after the Employment Period, and
(d) upon the execution and delivery of this Agreement by the Company, this Agreement will be the valid and binding obligation
of Executive, enforceable in accordance with its terms. Executive hereby acknowledges and represents that Executive has had the
opportunity to consult with independent legal counsel regarding Executive’s rights and obligations under this Agreement and
that Executive fully understands the terms and conditions contained herein. Executive further represents that in entering
into this Agreement, Executive is not relying on any statements or representations made by any of the Company’s or
Crackle’s directors, officers, employees or agents which are not expressly set forth herein, and that Executive is relying
only upon Executive’s own judgment and any advice provided by Executive’s attorney.
15. Indemnification.
During the Employment Period and thereafter, the Company shall indemnify and hold Executive harmless, to the maximum extent permitted
by law, against any and all damages, costs, liabilities, losses and expenses as a result of any claim, action, suit, arbitration or other
proceeding (whether civil, criminal, administrative or investigative) (each a “Proceeding”), or any threatened Proceeding,
against Executive that arises out of or relates to Executive’s service as an officer, director or employee, as the case may be,
of the Company, or Executive’s service in any such capacity or similar capacity with any Affiliate of the Company or other entity
at the Company’s request, after the Effective Date; provided that Executive acted in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful; provided, further, that Executive shall not be entitled to any such indemnification
(A) in respect of any Proceeding based upon or attributable to Executive gaining in fact any personal profit or advantage to which
he is not entitled, or resulting from Executive’s fraudulent, dishonest or willful misconduct, breach of fiduciary duty or other
act or omission constituting Cause, (B) to the extent Executive has already received indemnification or payment pursuant to the Company’s
operating agreement or other governing documents, directors’ and officers’ liability policy or otherwise or (C) in respect
of any Proceeding initiated by Executive, unless the Company has joined in or the Board has authorized such Proceeding. During the Term
and thereafter, the Company also shall provide Executive with coverage under its current directors’ and officers’ liability
policy to the same extent that it provides such coverage to its other executive officers.
16. Definitions.
For purposes of this Agreement, the following terms, as used herein, shall have the definitions set forth below.
“Affiliate”
means, with respect to any specified Person, any other Person that directly or indirectly, through one or more intermediaries, Controls,
is Controlled by, or is under common Control with, such specified Person, provided that, in any event, any business in which the Company
or Group has any direct ownership interest shall be treated as an Affiliate of the Company.
“Control”
(including, with correlative meanings, the terms “Controlled by” and “under common Control with”), as used with
respect to any Person, means the direct or indirect possession of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Fiscal Year” means the fiscal year of
the Company ending December 31.
“Disability”
means any permanent mental or physical disability or incapacity as determined by the Board in its good faith judgment and meeting the
standard of subsection (a)(2)(C) of Section 409A.
“Person”
means any natural person, corporation, general partnership, limited partnership, limited liability company or partnership, proprietorship,
other business organization, trust, union, association or governmental or regulatory entities, department, agency or authority.
17. Survival.
Sections 5 through 31 will survive and continue in full force in accordance with their terms notwithstanding the termination of the Employment
Period.
18. Notices.
Any notice provided for in this Agreement will be in writing and will be either personally delivered, sent by reputable overnight courier
service, sent by facsimile (with hard copy to follow by regular mail) or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices
to Executive: to his address then reflected in the Company’s records
with a copy to:
DLA Piper LLP
One Atlantic Center
1201 West Peachtree Street, Suite 2800
Atlanta,
Georgia 30309-3450
Attention: [*****]
Facsimile: [*****]
Notices
to the Company:
WirePath
Home Systems, LLC
c/o Hellman & Friedman LLC
One Maritime Plaza, 12th Floor
San Francisco, CA 94111
Attention: [*****]
[*****]
Facsimile: [*****]
with
a copy to (which will not constitute notice to the Company):
Simpson Thacher & Bartlett
425
Lexington Avenue
New York, NY 10017
Attention: [*****]
Facsimile: [*****]
or such other address or to the attention of such
other person as the recipient Party will have specified by prior written notice to the sending Party. Any notice under this Agreement
will be deemed to have been given when so delivered, sent or mailed.
19. Severability.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any
action in any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
20. Business
Days. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company’s chief-executive office is located, the time period shall automatically be extended to the business
day immediately following such Saturday, Sunday or legal holiday.
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21.
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Withholding; Taxes; Section 409A.
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(a) The
Company and its Affiliates will be entitled to deduct or withhold from any amounts owing to Executive any federal, state, local or foreign
withholding taxes, excise tax, or employment taxes (“Taxes”) imposed with respect to Executive’s compensation
or other payments from the Company or any of its Affiliates or Executive’s ownership interest in the Company or any of its Affiliates
(including, without limitation, wages, bonuses, dividends, the receipt or exercise of equity options and/or the receipt or vesting of
restricted equity).
(b) To
the maximum extent permitted by law, this Agreement shall be interpreted in such a manner that the payments to Executive under this Agreement
are either exempt from, or comply with, Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other
interpretive guidance issued thereunder (collectively, “Section 409A”), including without limitation any such
regulations or other guidance that may be issued after the Effective Date.
(c) If
any provision of this Agreement contravenes any regulations or guidance promulgated under Section 409A or would cause payment or
benefits provided hereunder to be subject to additional taxes, accelerated taxation, interest and/or penalties under Section 409A,
the parties shall cooperate to attempt to amend such provision to the extent reasonable or necessary, with the intent that the original
intent of the applicable provision shall be preserved to the maximum extent practicable without contravening the provisions of Section 409A.
Notwithstanding anything to the contrary in this Agreement, it is expressly understood and agreed that Executive shall be solely responsible
and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of Executive in connection with this
Agreement (including any taxes and penalties under Section 409A), and neither the Company nor any of its Affiliates shall have any
obligation to amend this Agreement, indemnify or otherwise hold Executive (or any beneficiary) harmless from any or all of such taxes
or penalties.
(d) Notwithstanding
anything to the contrary in this Agreement, if Executive is a “specified employee” as defined in Section 409A as of
Executive’s termination of employment, then, to the extent any payment under this Agreement resulting from Executive’s
termination of employment constitutes deferred compensation (after taking into account any applicable exemptions from
Section 409A) and to the extent required by Section 409A, no payments due under this Agreement Executive’s
termination of employment may be made until the earlier of: (i) the first day following the sixth month anniversary of
Executive’s date of termination and (ii) Executive’s date of death; provided, however, that any
payments delayed during this six-month period shall be paid in the aggregate in a lump sum as soon as reasonably practicable
following the sixth month anniversary of Executive’s date of termination. If payment of an amount is delayed as a result of
this Section 21(d), such amount shall be increased with interest from the date on which such amount would otherwise have been
paid to Executive but for this Section 21(d) to the day prior to the date the amount is actually paid. The rate of
interest shall be the short-term federal rate applicable under Section 7872(f)(2)(A) of the Code for the month in which
the date of Executive’s termination of employment occurs. Such interest shall be payable at the same time that the amount
delayed as a result of this Section 21(d) is actually paid.
(e) For
purposes of Section 409A, each of the payments that may be made under this Agreement is designated as a separate payment. For purposes
of this Agreement, with respect to payments of any amounts that are considered to be “deferred compensation” subject to Section 409A,
references to “termination of employment” (and substantially similar phrases) shall be interpreted and applied in a manner
that is consistent with the requirements of Section 409A relating to “separation from service.” To the extent that any
reimbursements made hereunder are taxable to Executive, any such reimbursement payment due to Executive shall be paid to Executive as
promptly as practicable, and in all events on or before the last day of Executive’s taxable year following the taxable year in which
the related expense was incurred. The reimbursements are not subject to liquidation or exchange for another benefit and the amount of
such benefits and reimbursements that Executive receives in one taxable year shall not affect the amount of such benefits or reimbursements
that Executive receives in any other taxable year.
22. Amendment
and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company, Executive
and Crackle, and no course of conduct or course of dealing or failure or delay by any Party hereto in enforcing or exercising any of the
provisions of this Agreement will affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied
waiver of any provision of this Agreement.
23. No
Strict Construction. The Parties jointly participated in the negotiation and drafting of this Agreement. The language used in this
Agreement will be deemed to be the language chosen by the Parties to express their collective mutual intent, this Agreement will be construed
as if drafted jointly by the Parties, and no rule of strict construction will be applied against any Person.
24. Third-Party
Beneficiary. The Company and Executive agree that Crackle is an intended third-party beneficiary of this Agreement.
25. Successors
and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns. Executive may not assign his rights or delegate his duties or obligations hereunder without
the prior written consent of the Company. The Company may assign its rights and obligations hereunder without the consent of, or notice
to, Executive, to any of the Company’s Affiliates or in the event that the Company shall hereafter affect a reorganization, consolidate
with, or merge into, any Person or transfer all or substantially all of its properties or assets to any Person, in which case all references
to the Company will refer to such assignee.
26. Complete
Agreement. This Agreement embodies the complete agreement and understanding among the Parties and supersedes and preempts any prior
understandings, agreements or representations by or among the Parties, written or oral, which may have related to the subject-matter hereof
in any way.
27. Choice
of Law; Exclusive Venue. THIS AGREEMENT, AND ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION
OF THIS AGREEMENT, WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. THE PARTIES AGREE THAT ALL DISPUTES, LEGAL ACTIONS,
SUITS AND PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT EXCLUSIVELY IN THE COURTS OF DELAWARE (THE “DESIGNATED
COURTS”). EACH PARTY HEREBY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE DESIGNATED COURTS. NO LEGAL ACTION, SUIT
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY OTHER FORUM. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL CLAIMS OF
IMMUNITY FROM JURISDICTION AND ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION
OR PROCEEDING IN ANY DESIGNATED COURT, INCLUDING ANY RIGHT TO OBJECT ON THE BASIS THAT ANY DISPUTE, ACTION, SUIT OR PROCEEDING BROUGHT
IN THE DESIGNATED COURTS HAS BEEN BROUGHT IN AN IMPROPER OR INCONVENIENT FORUM OR VENUE.
28. Mutual
Waiver of Jury Trial. THE PARTIES EACH WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE
PARTIES EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION WILL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR ANY PROVISION HEREOF. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
29. Counterparts.
This Agreement may be executed in separate counterparts (including by facsimile signature pages), each of which is deemed to be an original
and all of which taken together constitute one and the same agreement.
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30.
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Excess Parachute Payments.
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(a) In
the event that Executive becomes entitled to payments or benefits under this Agreement and/or any other payments or benefits by reason
of a “change of control” as defined in Section 280G of the Code and regulations thereunder (collectively, the “Payments”),
and any such Payment would constitute an “excess parachute payment” within the meaning of Section 280G(b)(1) of
the Code, or would otherwise be subject to the excise tax imposed under Section 4999 of the Code, or any similar federal or state
law (an “Excise Tax”), as determined by an independent certified public accounting firm selected by the Company (the
“Accounting Firm”), the amount of Executive’s Payments shall be limited to the largest amount payable, if any,
that would not result in the imposition of any Excise Tax to Executive, but only if, notwithstanding such limitation, the total Payments,
net of all taxes imposed on Executive with respect thereto, would be greater if no Excise Tax were imposed.
(i) If
a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable
to equity awards which vest on an accelerated basis; second, the cancellation of accelerated vesting of equity awards; third, the reduction
of employee benefits; and fourth, a reduction in any other “parachute payments” (as defined in Section 280G of the Code).
If acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse
order of the date of grant of Executive’s equity awards.
(ii) All
determinations required to be made under this Section 30 will be made by the Accounting Firm. Any determination by the Accounting
Firm will be binding upon the Company and Executive.
(b) Notwithstanding
the foregoing and to the extent no stock of the Company is then readily tradable on an established securities market or otherwise, the
Company shall use its reasonable good faith efforts to submit for stockholder approval any Payments that could be subject to the Excise
Tax, under procedures intended to comply with the requirements of Section 280G(b)(5)(B) of the Code and Treasury Regulation
Section 1.280G-1, Q&A 7 (or such replacement or successor provision thereto). The Company’s obligation to submit such Payments
to stockholders shall be conditioned on Executive executing a waiver of such Payments so that the stockholders’ vote will determine
whether such Payments are made. The materials submitted to stockholders and Executive’s waiver shall be in such form as the Company
may prescribe. For the avoidance of doubt, any reasonable good faith effort by the Company to submit any Payments for stockholder approval
pursuant to this Section 30 shall not require the Company to conduct any electioneering or to encourage or direct stockholders’
votes in any way.
31. Attorneys’
Fees. The Company shall pay all reasonable legal fees and expenses incurred on behalf of Executive, up to $15,000 in the aggregate,
in connection with the preparation, negotiation, execution and delivery of this Agreement (including the exhibit hereto) and the documents
related to the profits interest award to Executive referenced in Section 4(b).
* * * * *
IN WITNESS WHEREOF, the Parties hereto
have executed this Agreement as of the date first written above.
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WIREPATH HOME SYSTEMS, LLC
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By:
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[*****]
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Name:
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Michale Carlet
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Title:
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Chief Financial Officer
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[*****]
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John Heyman
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[Signature Page Employment
Agreement]
EXHIBIT A
FORM OF RELEASE
* * *
WAIVER AND RELEASE OF CLAIMS
In connection with the termination of
employment of John Heyman (“Executive”) [by] WirePath Home Systems, LLC, d/b/a SnapAV, a North Carolina limited liability
company (the “Company”), pursuant to the employment agreement between Executive and the Company, as amended and restated
as of August 4, 2017 (the “Employment Agreement”), Executive agrees as follows:
As used in this
Waiver and Release of Claims (this “Agreement”), the term “claims” shall include all claims, covenants,
warranties, promises, undertakings, actions, suits, causes of action, obligations, debts, accounts, attorneys’ fees, judgments,
losses and liabilities, of whatsoever kind or nature, both known and unknown, in law, equity or otherwise.
For
and in consideration of the payments described in Section 5 of the Employment Agreement, Executive, for and on behalf of Executive
and Executive’s heirs, administrators, executors, and assigns (the “Related Parties”), effective the Release
Effective Date (as defined below), does fully and forever waive and release, remise and discharge the Company, its direct and indirect
parents, subsidiaries and affiliates (including Crackle Holdings, L.P.), their predecessors and successors and assigns, together with
the respective officers, directors, partners, shareholders, employees, members, and agents of the foregoing (collectively, the “Group”)
from any and all claims which Executive or any Related Party had, may have had, or now has against the Company, the Group, collectively
or any member of the Group individually, for or by reason of any matter, cause or thing whatsoever, including, but not limited to, (x) any
claim arising out of or attributable to Executive’s employment or the termination of Executive’s employment with the Company,
and also including but not limited to claims of breach of contract, wrongful termination, unjust dismissal, defamation, libel or slander,
or under any federal, state or local law dealing with discrimination based on age, race, sex, national origin, handicap, religion, disability
or sexual preference [and (y) any and all claims with respect to any equity, equity-based or other incentive compensation].1
This release of claims includes, but is not limited to, all claims arising under the Age Discrimination in Employment Act of 1967 (the
“ADEA”), Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Civil Rights Act of 1991, the
Family Medical Leave Act, the Equal Pay Act, and all other federal, state and local labor and anti- discrimination laws, the common law
and any other purported restriction on an employer’s right to terminate the employment of employees.
1 Include
to the extent equity is called at termination.
Executive specifically
releases all claims against the Group and each member thereof under ADEA relating to Executive’s employment and its termination.
Executive represents
that Executive has not filed or permitted to be filed against the Group, any member of the Group individually or the Group collectively,
any lawsuit, complaint, charge, proceeding or the like, before any local, state or federal agency, court or other body (each, a “Proceeding”),
and Executive covenants and agrees that Executive will not do so at any time hereafter, in each case, with respect to claims released
pursuant to this Agreement (including, without limitation, any claims relating to the termination of Executive’s employment), except
as may be necessary to enforce this Agreement, to obtain benefits described in or granted under this Agreement, or to seek a determination
of the validity of the waiver of Executive’s rights under the ADEA, or initiate or participate in an investigation or proceeding
conducted by the Equal Employment Opportunity Commission. Except as otherwise provided in the preceding sentence, (i) Executive will
not initiate or cause to be initiated on Executive’s behalf any Proceeding, and will not participate (except as required by law)
in any Proceeding of any nature or description against any member of the Group individually or the Group collectively that in any way
involves the allegations and facts that Executive could have raised against any member of the Group individually or the Group collectively
as of the date hereof with respect to any matter released hereby and (ii) Executive waives any right Executive may have to benefit
in any manner from any relief (monetary or otherwise) arising out of any Proceeding with respect to any matter released hereby.
Notwithstanding
the foregoing, nothing in this Agreement shall release Executive’s claim for (i) unemployment compensation benefits, (ii) any
claims by Executive in respect of any vested benefits under any Company benefit plans or other Company retirement plans of any type that
Executive is entitled to pursuant to the terms thereof as a result of his employment with the Company, (iii) any right or claim that
arises against the Company after the date of this Agreement, (iv) rights under this Agreement, (v) rights to indemnification
as an officer or employee of the Company, (vi) rights to payment under Section 5 of the Employment Agreement or (vii) [any
claims by Executive in respect of his capacity as an equityholder of the Company or any of its Affiliates].2
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2.
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Acknowledgment of Consideration.
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Executive is specifically
agreeing to the terms of this release because the Company has agreed to pay Executive money and other benefits to which Executive was
not otherwise entitled under the Company’s policies or under the Employment Agreement (in the absence of providing this release).
The Company has agreed to provide this money and other benefits because of Executive’s agreement to accept it in full settlement
of all possible claims Executive might have or ever had with respect to any matter released hereby, and because of Executive’s execution
of this Agreement.
2 Include
to the extent equity is not called at termination.
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3.
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Acknowledgments Relating to Waiver and Release; Revocation Period.
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Executive acknowledges
that Executive has read this Agreement in its entirety, fully understands its meaning and is executing this Agreement voluntarily and
of Executive’s own free will with full knowledge of its significance. Executive acknowledges and warrants that Executive has been
advised by the Company to consult with an attorney prior to executing this Agreement. The offer to accept the terms of this Agreement
is open for at least [21/45] days following termination of employment. Executive shall have the right to revoke this Agreement for a period
of seven (7) days following Executive’s executive of this Agreement, by giving written notice of such revocation to the Company.
This Agreement shall not become effective until the eighth day following Executive’s execution of it (the “Release Effective
Date”).
Moreover, Executive
understands and agrees that if Executive breaches any provisions of this Agreement, in addition to any other legal or equitable remedy
the Company may have, the Company shall be entitled to cease making any payments or providing any benefits to Executive under Section 5
of the Employment Agreement, and Executive shall reimburse the Company for all its reasonable attorneys’ fees and costs incurred
by it arising out of any such breach. The remedies set forth in this paragraph shall not apply to any challenge to the validity of the
waiver and release of Executive’s rights under the ADEA. In the event Executive challenges the validity of the waiver and release
of Executive’s rights under the ADEA, then the Company’s right to attorneys’ fees and costs shall be governed by the
provisions of the ADEA, so that the Company may recover such fees and costs if the lawsuit is brought by Executive in bad faith. Any such
action permitted to the Company by this paragraph, however, shall not affect or impair any of Executive’s obligations under this
Agreement, including without limitation, the release of claims in paragraph 1 hereof
Nothing herein shall
be deemed to constitute an admission of wrongdoing by Executive, the Company or any member of the Group. Neither this Agreement nor any
of its terms shall be used as an admission or introduced as evidence as to any issue of law or fact in any proceeding, suit or action,
other than an action to enforce this Agreement.
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6.
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Choice of Law; Exclusive Venue.
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THE TERMS OF
THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, INCLUDING ITS ENFORCEMENT, SHALL BE INTERPRETED AND GOVERNED
BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF DELAWARE OR THOSE OF ANY OTHER
JURISDICTION WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Executive has executed
this Agreement as of the day and year set forth opposite his signature below.
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DATE
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John Heyman
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(not to be signed prior to termination of employment)
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Exhibit 10.17
March 22, 2016]
Mr. Jeff Hindman
Dear Jeff:
We are thrilled to offer you the
opportunity to join our team as Chief Strategy Office and General Manager of New Markets of Wirepath Home Systems, dba SnapAV. Out
team is impressed with your ability to help companies formulate and execute strategies that drive growth and profitability and this
is of course reinforced by our prior working relationship. We are confident your talent, experience, leadership and commitment to
our values – collaboration, passion, curiosity, entrepreneurial, impact, customer-itis, humility, and communication –
are ideally-suited to contribute to the continued growth of our company.
Though we are proud of the considerable success
we’ve achieved at SnapAV to-date, we believe our best days are ahead of us. We have many opportunities to grow SnapAV to be a company
far bigger than it is today and we are assembling a strong team of executives to vigorously tackle these opportunities. We think you’ll
play a critical role in our future growth as part of that senior leadership team and sincerely hope that you will join us, along
with our partners at General Atlantic, for the journey ahead. We look forward to a long and rewarding association.
This letter summarizes the key points of our offer:
Position: Chief Strategy Officer, General Manager of New
Markets
Reports to: CEO
Start Date: May 1, 2016
Compensation: Annual salary of $240,000,
payable bi-weekly.
Annual Bonus: Eligibility for an annual bonus, starting
Jan 1, 2015, targeted at 50% of your base salary based upon attainment or personal objectives and company performance at budget. Company
performance above budget and individual performance can result in higher payouts. We will forward you our bonus matrix separately. First
year bonus will be prorated.
Equity Option: Participation in our management equity incentive
program with an opportunity to acquire 21,064 units of the profits interests in the company. Your incentive units will vest in four 25%
installments on each of the first four anniversaries of your date of hire.
Equity Accelerator: We are currently
developing an equity accelerator plan for a limited number of named executives. This plan has
been conceptually approved at the board level but is not yet in place. named You would participate in this plan at the same level
as other named executives once the plan is in effect.
Matching 401(k) plan: 50% matching up to 3% of salary.
Benefits:
You will be eligible to participate in the company’s benefit plan that includes 4 weeks of Paid Time Off, life insurance, medical/dental
insurance and other benefits in accordance with the plans available to employees.
Employee Discount: Access to all SnapAV products at the published
employee discount rate.
Reimbursements: During the term of your employment,
you will be reimbursed for any qualifying travel and business related expenses, including cell phone and mileage reimbursement.
Miscellaneous: This letter, together with a
separate Non-Competition, Non-Solicitation, and Confidentiality Agreement, constitutes our entire offer regarding the terms and conditions
of your employment with the Company and supersedes any prior agreements or promises made to you by anyone (whether verbal or written)
regarding the offered terms of employment.
If you have any questions or wish to discuss this offer
in further detail, please do not hesitate to call me at [*****]
In closing, I am thrilled to have you as a key
member of our senior leadership team and to “restart” our work relationship. I am committed to SnapAV and will be personally
committed to your professional success and continued development as a leader.
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Sincerely,
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John Heyman
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Chief Executive Officer
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The provisions of this offer of
employment have been read, are understood, and the offer is herewith accepted.
Exhibit 10.18
Execution Version
August 4, 2017
Jeffrey Hindman
c/o Amplify Holdings LLC
1800 Continental Blvd., Suite 200
Charlotte, NC 28273 Dear Jeffrey:
As you know, pursuant to the Agreement and Plan of Merger,
dated as of June 19, 2017, between Amplify Holdings LLC, General Atlantic (Amplify) Holdco LLC, General Atlantic (Amplify) LLC, Corporate
Purchaser Corp., Crackle Merger Sub I Corp., Crackle Merger Sub II Corp., GA Escrow, LLC, as seller representative, and JWF Rollover,
LLC, as the merger participant tax representative (the “Merger Agreement”), Amplify Holdings LLC, the indirect parent
of SnapAV (the “Company”), will merge into Crackle Merger Sub II Corp. In connection with such transaction, you executed
that certain Rollover Agreement between you, Crackle Holdings L.P., and Crackle Intermediate Corp. wherein you agreed to the employment
terms set forth on Exhibit C of the Rollover Agreement.
This letter agreement serves as an
amendment to that certain offer letter between you and the Company (the “Offer Letter”) and is conditioned upon the
closing of the transactions contemplated by the Merger Agreement (the “Closing”). Should the Closing fail to occur
for any reason, this letter shall be null and void ab initio.
Effective as of the Closing, you shall remain eligible for
severance pursuant to the Company’s severance guidelines as in effect on the date hereof; provided that you shall also be entitled
to severance upon a termination by you for Good Reason. As consideration for such Good Reason protection, the Non- Interference Agreement
entered into by you in connection with the grant of Class B Units on or shortly following the Closing is hereby incorporated by reference
to this letter agreement. Receipt of severance is subject to execution and non-revocation of a general release in the form attached hereto
within 30 days after your termination of employment and continued compliance with the Non-Interference Agreement. The severance will be
paid in equal installments over the applicable term of severance, in accordance with the Company’s payroll schedule, beginning with
the payroll period during which the release becomes effective (with the first payment including any amounts accrued during any release
consideration period).
“Good Reason”
means (i) a reduction in your rate of Base Salary or the dollar amount of your target bonus opportunity or (ii) the relocation
of your principal place of employment to a location that increases by at least 25 miles your one-way commute from your residence. You
may not terminate your employment for Good Reason unless you: (i) provide the Company with 30 days’ advance written notice
of your intent to resign for Good Reason, (ii) such notice is given within 90 days of the events or circumstances claimed to give
rise to Good Reason, (iii) the Company fails to cure such alleged violation within 30 days after you deliver such notice and (iv) if
the Company fails to cure such alleged violation, you must terminate your employment within five months of the initial occurrence of
the facts or circumstances giving rise to Good Reason.
Except as provided above, the terms of your Offer Letter
remain unchanged and in full force and effect.
As verification that you accept this change to your Offer Letter, please sign below.
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Sincerely,
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SNAPAV
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[*****]
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With my signature below. 1 accept the changes to my Offer Letter.
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Date:
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[*****]
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Signature:
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[*****]
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Jeffrey Hindman
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[Signature Page Offer Amendment]
EXHIBIT A
FORM OF RELEASE
* * *
WAIVER AND RELEASE OF CLAIMS
In connection with the termination
of employment of Jeffrey Hindman (“Executive”) [by] WirePath Home Systems, LLC, d/b/a SnapAV, a North Carolina limited
liability company (the “Company”), pursuant to the Offer Letter between Executive and the Company, dated as of [Date],
as amended [Date], 2017 (the “Offer Letter”), Executive agrees as follows:
As used in this
Waiver and Release of Claims (this “Agreement”), the term “claims” shall include all claims, covenants,
warranties, promises, undertakings, actions, suits, causes of action, obligations, debts, accounts, attorneys’ fees, judgments,
losses and liabilities, of whatsoever kind or nature, both known and unknown, in law, equity or otherwise.
For
and in consideration of the payments described in the Offer Letter, Executive, for and on behalf of Executive and Executive’s heirs,
administrators, executors, and assigns (the “Related Parties”), effective the Release Effective Date (as defined below),
does fully and forever waive and release, remise and discharge the Company, its direct and indirect parents, subsidiaries and affiliates
(including Crackle Holdings, L.P.), their predecessors and successors and assigns, together with the respective officers, directors, partners,
shareholders, employees, members, and agents of the foregoing (collectively, the “Group”) from any and all claims which
Executive or any Related Party had, may have had, or now has against the Company, the Group, collectively or any member of the Group individually,
for or by reason of any matter, cause or thing whatsoever, including, but not limited to, (x) any claim arising out of or attributable
to Executive’s employment or the termination of Executive’s employment with the Company, and also including but not limited
to claims of breach of contract, wrongful termination, unjust dismissal, defamation, libel or slander, or under any federal, state or
local law dealing with discrimination based on age, race, sex, national origin, handicap, religion, disability or sexual preference [and
(y) any and all claims with respect to any equity, equity-based or other incentive compensation].1 This release of claims
includes, but is not limited to, all claims arising under the Age Discrimination in Employment Act of 1967 (the “ADEA”),
Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Civil Rights Act of 1991, the Family Medical Leave Act, the
Equal Pay Act, and all other federal, state and local labor and antidiscrimination laws, the common law and any other purported restriction
on an employer’s right to terminate the employment of employees.
Executive specifically
releases all claims against the Group and each member thereof under ADEA relating to Executive’s employment and its termination.
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1
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Include to the extent equity
is called at termination.
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Executive represents
that Executive has not filed or permitted to be filed against the Group, any member of the Group individually or the Group collectively,
any lawsuit, complaint, charge, proceeding or the like, before any local, state or federal agency, court or other body (each, a “Proceeding”),
and Executive covenants and agrees that Executive will not do so at any time hereafter, in each case, with respect to claims released
pursuant to this Agreement (including, without limitation, any claims relating to the termination of Executive’s employment), except
as may be necessary to enforce this Agreement, to obtain benefits described in or granted under this Agreement, or to seek a determination
of the validity of the waiver of Executive’s rights under the ADEA, or initiate or participate in an investigation or proceeding
conducted by the Equal Employment Opportunity Commission. Except as otherwise provided in the preceding sentence, (i) Executive will
not initiate or cause to be initiated on Executive’s behalf any Proceeding, and will not participate (except as required by law)
in any Proceeding of any nature or description against any member of the Group individually or the Group collectively that in any way
involves the allegations and facts that Executive could have raised against any member of the Group individually or the Group collectively
as of the date hereof with respect to any matter released hereby and (ii) Executive waives any right Executive may have to benefit
in any manner from any relief (monetary or otherwise) arising out of any Proceeding with respect to any matter released hereby.
Notwithstanding
the foregoing, nothing in this Agreement shall release Executive’s claim for (i) unemployment compensation benefits, (ii) any
claims by Executive in respect of any vested benefits under any Company benefit plans or other Company retirement plans of any type that
Executive is entitled to pursuant to the terms thereof as a result of his employment with the Company, (iii) any right or claim that
arises against the Company after the date of this Agreement, (iv) rights under this Agreement, (v) rights to indemnification
as an officer or employee of the Company, (vi) rights to payment under the Offer Letter or (vii) [any claims by Executive in
respect of his capacity as an equityholder of the Company or any of its Affiliates].2
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2.
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Acknowledgment of Consideration.
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Executive is specifically
agreeing to the terms of this release because the Company has agreed to pay Executive money and other benefits to which Executive was
not otherwise entitled under the Company’s policies or under the Offer Letter (in the absence of providing this release). The Company
has agreed to provide this money and other benefits because of Executive’s agreement to accept it in full settlement of all possible
claims Executive might have or ever had with respect to any matter released hereby, and because of Executive’s execution of this
Agreement.
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3.
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Acknowledgments Relating to Waiver and Release; Revocation Period.
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Executive acknowledges
that Executive has read this Agreement in its entirety, fully understands its meaning and is executing this Agreement voluntarily and
of Executive’s own free will with full knowledge of its significance. Executive acknowledges and warrants that Executive has been
advised by the Company to consult with an attorney prior to executing this Agreement. The offer to accept the
terms of this Agreement is open for at least [21/45] days following termination of employment. Executive shall have the right to revoke
this Agreement for a period of seven (7) days following Executive’s executive of this Agreement, by giving written notice of
such revocation to the Company. This Agreement shall not become effective until the eighth day following Executive’s execution of
it (the “Release Effective Date”).
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2
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Include to the extent equity
is not called at termination.
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Moreover, Executive
understands and agrees that if Executive breaches any provisions of this Agreement, in addition to any other legal or equitable remedy
the Company may have, the Company shall be entitled to cease making any payments or providing any benefits to Executive under the Offer
Letter, and Executive shall reimburse the Company for all its reasonable attorneys’ fees and costs incurred by it arising out of
any such breach. The remedies set forth in this paragraph shall not apply to any challenge to the validity of the waiver and release of
Executive’s rights under the ADEA. In the event Executive challenges the validity of the waiver and release of Executive’s
rights under the ADEA, then the Company’s right to attorneys’ fees and costs shall be governed by the provisions of the ADEA,
so that the Company may recover such fees and costs if the lawsuit is brought by Executive in bad faith. Any such action permitted to
the Company by this paragraph, however, shall not affect or impair any of Executive’s obligations under this Agreement, including
without limitation, the release of claims in paragraph 1 hereof.
Nothing herein
shall be deemed to constitute an admission of wrongdoing by Executive, the Company or any member of the Group. Neither this Agreement
nor any of its terms shall be used as an admission or introduced as evidence as to any issue of law or fact in any proceeding, suit or
action, other than an action to enforce this Agreement.
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6.
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Choice of Law; Exclusive Venue.
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THE TERMS OF
THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, INCLUDING ITS ENFORCEMENT, SHALL BE INTERPRETED AND GOVERNED
BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF DELAWARE OR THOSE OF ANY OTHER
JURISDICTION WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Executive has executed
this Agreement as of the day and year set forth opposite his signature below.
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[*****]
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[*****]
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DATE
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Jeffrey Hindman
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(not to be signed prior to termination of employment)
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Exhibit 10.19
October 7,
2014
Mr. Michael Carlet
[*****]
Dear Michael:
We
are thrilled to offer you the opportunity to join our team as Chief Financial Officer of Wirepath Home Systems dba SnapAV.
We have been impressed with your ability to help companies formulate and execute strategies that drive growth and profitability. We
are confident your talent, experience, leadership and commitment to our values – collaboration, passion, curiosity,
entrepreneurial, impact, customer-itis, humility, and communication – are ideally-suited to contribute to the
continued growth of our company.
Though
we are proud of the considerable success we've achieved at SnapAV to-date, we believe our best days are ahead of us. We have many opportunities
to grow SnapAV to be a company far bigger than it is today and we are assembling a strong team of executives to vigorously tackle these
opportunities. We think you'll play a critical role in our future growth as part of that senior leadership team and sincerely hope that
you will join us, along with our partners at General Atlantic, for the journey ahead. We look forward to a long and rewarding association.
This
letter summarizes the key points of our offer:
Position:
Chief Financial Officer, reporting to the CEO, Craig A. Craze.
Start
Date: On or before November 10, 2014.
Compensation:
Annual salary of $240,000, payable bi-weekly.
Annual
Bonus: Eligibility for an annual bonus, starting Jan 1, 2015, targeted at 30% of your base salary based upon attainment or personal
objectives and company performance.
Equity
Option: Participation in our management equity incentive program with an opportunity to acquire XXXXX units (0.X%) of the profits
interests in the company. Your incentive units will vest in four 25% installments on each of the first four anniversaries of your date
of hire.
Sign-on
Bonus: One-time bonus of $50,000 paid with first pay check; recoverable if employment is voluntarily terminated by employee within
the first year.
Matching
401(k) plan: 50% matching up to 3% of salary.
Severance:
In the case of termination without cause, severance pay equal to six months of salary.
Benefits:
You will be eligible to participate in the Company's benefit plan that includes 4 weeks of Paid Time Off, life insurance, medical/dental
insurance and other benefits in accordance with the plans available to employees.
Employee
Discount: Access to all SnapAV products at the published employee discount rate.
Reimbursements:
During the term of your employment, you will be reimbursed for any qualifying travel and business related expenses, including cell
phone and mileage reimbursement.
Miscellaneous:
This letter, together with a separate Non-Competition, Non-Solicitation, and Confidentiality Agreement, constitutes our entire offer
regarding the terms and conditions of your employment with the Company and supersedes any prior agreements or promises made to you by
anyone (whether verbal or written) regarding the offered terms of employment.
Contingencies:
Your employment is contingent on satisfactory proof of your eligibility to work in the United States. You also may be required to
undergo and successfully complete a drug screening and/or a background check, including a criminal records check, as a condition of your
employment in accordance with applicable law.
If
you have any questions or wish to discuss this offer in further detail, please do not hesitate to call me at [*****]
In
closing, I am not only thrilled to have you as a key member of my senior leadership team, but am personally committed to your professional
success and continued development as a leader.
[*****]
Craig
A. Craze
Chief
Executive Officer
The
provisions of this offer of employment have been read, are understood, and the offer is herewith accepted.
Date:_____________________
Signature:_________________________________________
SnapAV
has been ranked in the prestigious Inc. 500 and 5000 lists Five years running, joining the likes of former nominees such as Microsoft,
Oracle, QualComm and Domino's.
Exhibit 10.20
Execution Version
August 4,
2017
Michael Carlet
[*****]
Dear Michael:
As you know, pursuant to the Agreement and Plan of Merger,
dated as of June 19, 2017, between Amplify Holdings LLC, General Atlantic (Amplify) Holdco LLC, General Atlantic (Amplify) LLC, Corporate
Purchaser Corp., Crackle Merger Sub I Corp., Crackle Merger Sub II Corp., GA Escrow, LLC, as seller representative, and JWF Rollover,
LLC, as the merger participant tax representative (the “Merger Agreement”), Amplify Holdings LLC, the indirect parent
of SnapAV (the “Company”), will merge into Crackle Merger Sub II Corp. In connection with such transaction, you executed
that certain Rollover Agreement between you, Crackle Holdings L.P., and Crackle Intermediate Corp. wherein you agreed to the employment
terms set forth on Exhibit C of the Rollover Agreement.
This letter agreement serves as an
amendment to the offer letter between you and the Company, dated as of October 7, 2014 (the “Offer Letter”)
and is conditioned upon the closing of the transactions contemplated by the Merger Agreement (the “Closing”).
Should the Closing fail to occur for any reason, this letter shall be null and void ab initio.
Effective as of the Closing, you shall be eligible for the
same severance protection as provided in your Offer Letter; provided that in addition to severance following a termination of employment
by the Company without cause, you shall also be entitled to severance upon a termination by you for Good Reason. As consideration for
such Good Reason protection, the Non-Interference Agreement entered into by you in connection with the grant of Class B Units on
or shortly following the Closing is hereby incorporated by reference to this letter agreement. Receipt of severance is subject to execution
and non- revocation of a general release in the form attached hereto within 30 days after your termination of employment and continued
compliance with the Non-Interference Agreement. The severance will be paid in equal installments over the applicable term of severance,
in accordance with the Company’s payroll schedule, beginning with the payroll period during which the release becomes effective
(with the first payment including any amounts accrued during any release consideration period).
“Good Reason” means (i) a reduction
in your rate of Base Salary or the dollar amount of your target bonus opportunity or (ii) the relocation of your principal place
of employment to a location that increases by at least 25 miles your one-way commute from your residence. You may not terminate your employment
for Good Reason unless you: (i) provide the Company with 30 days’ advance written notice of your intent to resign for Good
Reason, (ii) such notice is given within 90 days of the events or circumstances claimed to give rise to Good Reason, (iii) the
Company fails to cure such alleged violation within 30 days after you deliver such notice and (iv) if the Company fails to cure such
alleged violation, you must terminate your employment within five months of the initial occurrence of the facts or circumstances giving
rise to Good Reason.
Except as provided above, the terms of your Offer Letter
remain unchanged and in full force and effect.
As verification that you accept this change to your Offer Letter, please sign below.
Sincerely,
SNAPAV
________________________________
With my signature below, I accept the
changes to my Offer Letter.
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Signature:
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[*****]
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Michael Carlet
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[Signature Page for Offer
Letter]
EXHIBIT A
FORM OF RELEASE
* * *
WAIVER AND RELEASE OF CLAIMS
In connection with the termination of
employment of Michael Carlet (“Executive”) [by] WirePath Home Systems, LLC, d/b/a SnapAV, a North Carolina limited
liability company (the “Company”), pursuant to the Offer Letter between Executive and the Company, dated as of October 7,
2014, as amended [Date], 2017 (the “Offer Letter”), Executive agrees as follows:
As used in this
Waiver and Release of Claims (this “Agreement”), the term “claims” shall include all claims, covenants,
warranties, promises, undertakings, actions, suits, causes of action, obligations, debts, accounts, attorneys’ fees, judgments,
losses and liabilities, of whatsoever kind or nature, both known and unknown, in law, equity or otherwise.
For
and in consideration of the payments described in the Offer Letter, Executive, for and on behalf of Executive and Executive’s heirs,
administrators, executors, and assigns (the “Related Parties”), effective the Release Effective Date (as defined below),
does fully and forever waive and release, remise and discharge the Company, its direct and indirect parents, subsidiaries and affiliates
(including Crackle Holdings, L.P.), their predecessors and successors and assigns, together with the respective officers, directors, partners,
shareholders, employees, members, and agents of the foregoing (collectively, the “Group”) from any and all claims which
Executive or any Related Party had, may have had, or now has against the Company, the Group, collectively or any member of the Group individually,
for or by reason of any matter, cause or thing whatsoever, including, but not limited to, (x) any claim arising out of or attributable
to Executive’s employment or the termination of Executive’s employment with the Company, and also including but not limited
to claims of breach of contract, wrongful termination, unjust dismissal, defamation, libel or slander, or under any federal, state or
local law dealing with discrimination based on age, race, sex, national origin, handicap, religion, disability or sexual preference [and
(y) any and all claims with respect to any equity, equity-based or other incentive compensation].1 This release of claims
includes, but is not limited to, all claims arising under the Age Discrimination in Employment Act of 1967 (the “ADEA”),
Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Civil Rights Act of 1991, the Family Medical Leave Act, the
Equal Pay Act, and all other federal, state and local labor and antidiscrimination laws, the common law and any other purported restriction
on an employer’s right to terminate the employment of employees.
Executive specifically
releases all claims against the Group and each member thereof under ADEA relating to Executive’s employment and its termination.
1 Include
to the extent equity is called at termination.
Executive represents
that Executive has not filed or permitted to be filed against the Group, any member of the Group individually or the Group collectively,
any lawsuit, complaint, charge, proceeding or the like, before any local, state or federal agency, court or other body (each, a “Proceeding”),
and Executive covenants and agrees that Executive will not do so at any time hereafter, in each case, with respect to claims released
pursuant to this Agreement (including, without limitation, any claims relating to the termination of Executive’s employment), except
as may be necessary to enforce this Agreement, to obtain benefits described in or granted under this Agreement, or to seek a determination
of the validity of the waiver of Executive’s rights under the ADEA, or initiate or participate in an investigation or proceeding
conducted by the Equal Employment Opportunity Commission. Except as otherwise provided in the preceding sentence, (i) Executive will
not initiate or cause to be initiated on Executive’s behalf any Proceeding, and will not participate (except as required by law)
in any Proceeding of any nature or description against any member of the Group individually or the Group collectively that in any way
involves the allegations and facts that Executive could have raised against any member of the Group individually or the Group collectively
as of the date hereof with respect to any matter released hereby and (ii) Executive waives any right Executive may have to benefit
in any manner from any relief (monetary or otherwise) arising out of any Proceeding with respect to any matter released hereby.
Notwithstanding
the foregoing, nothing in this Agreement shall release Executive’s claim for (i) unemployment compensation benefits, (ii) any
claims by Executive in respect of any vested benefits under any Company benefit plans or other Company retirement plans of any type that
Executive is entitled to pursuant to the terms thereof as a result of his employment with the Company, (iii) any right or claim that
arises against the Company after the date of this Agreement, (iv) rights under this Agreement, (v) rights to indemnification
as an officer or employee of the Company, (vi) rights to payment under the Offer Letter or (vii) [any claims by Executive in
respect of his capacity as an equityholder of the Company or any of its Affiliates].2
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2.
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Acknowledgment of Consideration.
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Executive is specifically
agreeing to the terms of this release because the Company has agreed to pay Executive money and other benefits to which Executive was
not otherwise entitled under the Company’s policies or under the Offer Letter (in the absence of providing this release). The Company
has agreed to provide this money and other benefits because of Executive’s agreement to accept it in full settlement of all possible
claims Executive might have or ever had with respect to any matter released hereby, and because of Executive’s execution of this
Agreement.
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3.
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Acknowledgments Relating to Waiver and Release; Revocation Period.
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Executive acknowledges
that Executive has read this Agreement in its entirety, fully understands its meaning and is executing this Agreement voluntarily and
of Executive’s own free will with full knowledge of its significance. Executive acknowledges and warrants that Executive has been
advised by the Company to consult with an attorney prior to executing this
2 Include
to the extent equity is not called at termination.
Agreement. The offer to accept the
terms of this Agreement is open for at least [21/45] days following termination of employment. Executive shall have the right to revoke
this Agreement for a period of seven (7) days following Executive’s executive of this Agreement, by giving written notice of
such revocation to the Company. This Agreement shall not become effective until the eighth day following Executive’s execution of
it (the “Release Effective Date”).
Moreover, Executive
understands and agrees that if Executive breaches any provisions of this Agreement, in addition to any other legal or equitable remedy
the Company may have, the Company shall be entitled to cease making any payments or providing any benefits to Executive under the Offer
Letter, and Executive shall reimburse the Company for all its reasonable attorneys’ fees and costs incurred by it arising out of
any such breach. The remedies set forth in this paragraph shall not apply to any challenge to the validity of the waiver and release of
Executive’s rights under the ADEA. In the event Executive challenges the validity of the waiver and release of Executive’s
rights under the ADEA, then the Company’s right to attorneys’ fees and costs shall be governed by the provisions of the ADEA,
so that the Company may recover such fees and costs if the lawsuit is brought by Executive in bad faith. Any such action permitted to
the Company by this paragraph, however, shall not affect or impair any of Executive’s obligations under this Agreement, including
without limitation, the release of claims in paragraph 1 hereof.
Nothing herein
shall be deemed to constitute an admission of wrongdoing by Executive, the Company or any member of the Group. Neither this Agreement
nor any of its terms shall be used as an admission or introduced as evidence as to any issue of law or fact in any proceeding, suit or
action, other than an action to enforce this Agreement.
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6.
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Choice of Law; Exclusive Venue.
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THE TERMS OF
THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, INCLUDING ITS ENFORCEMENT, SHALL BE INTERPRETED AND GOVERNED
BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF DELAWARE OR THOSE OF ANY OTHER
JURISDICTION WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Executive has executed
this Agreement as of the day and year set forth opposite his signature below.
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DATE
(not to be signed prior to termination of employment)
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Michael Carlet
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Exhibit 21.1
Subsidiaries of the Registrant
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Name of Subsidiary
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Jurisdiction of Incorporation
or Organization
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Crackle Purchaser LLC
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Delaware
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Wirepath, LLC
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Delaware
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Snap One, LLC
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Delaware
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Remote Maintenance Systems GP, LLC
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Delaware
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Remote Maintenance Systems, L.P.
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Delaware
|
|
Control4 EMEA Ltd.
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United Kingdom
|
|
Control4 Germany GMBH
|
Germany
|
|
Control4 Europe doo Belgrade
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Serbia
|
|
Control4 HK Limited
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Hong Kong
|
|
Control4 Switzerland AG
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Switzerland
|
|
Control4 India Private Limited
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India
|
|
Control4 Smart Control Technology Shanghai Co., Ltd.
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China
|
|
Control4 Australia Pty Ltd.
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Australia
|
|
Nexus Technologies Holdings Pty Ltd
|
Australia
|
|
Control4 APAC Pty Ltd
|
Australia
|
|
Control4 New Zealand Pty Limited
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New Zealand
|
|
SunBrite Holding Corporation
|
Delaware
|
|
SunBrite TV, LLC
|
Delaware
|
|
WHS, LLC
|
Taiwan
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Registration Statement on Form
S-1 of our report dated April 19, 2021, relating to the financial statements of Snap One Holdings Corp. We also consent to the reference
to us under the heading “Experts” in such Registration Statement.
|
/s/ Deloitte & Touche LLP
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|
|
|
|
|
Charlotte, NC
|
|
|
July 2, 2021
|
|
![[MISSING IMAGE: LG_SNAPONE-4CLR.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_LG_SNAPONE-4CLR.JPG)
![[MISSING IMAGE: TM2110925D5-PG_INSERT14C.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D5-PG_INSERT14C.JPG)
![[MISSING IMAGE: TM2110925D5-PG_INSERT24C.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D5-PG_INSERT24C.JPG)
![[MISSING IMAGE: TM2110925D5-PG_INSERT34C.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D5-PG_INSERT34C.JPG)
![[MISSING IMAGE: TM2110925D5-PG_INSERT44C.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D5-PG_INSERT44C.JPG)
![[MISSING IMAGE: TM2110925D5-PG_INSERT54C.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D5-PG_INSERT54C.JPG)
![[MISSING IMAGE: TM2110925D5-PG_INSERT64C.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D5-PG_INSERT64C.JPG)
![[MISSING IMAGE: TM2110925D5-TBL_OVERARC4C.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D5-TBL_OVERARC4C.JPG)
![[MISSING IMAGE: TM2110925D1-PHT_INTEGRA4CLR.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D1-PHT_INTEGRA4CLR.JPG)
![[MISSING IMAGE: TM2110925D5-MAP_OMNI4C.JPG]](https://content.edgar-online.com/edgar_conv_img/2021/07/02/0001104659-21-088496_TM2110925D5-MAP_OMNI4C.JPG)