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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
November 26, 2024
IAC Inc.
(Exact name of registrant as specified in charter)
| Delaware | |
001-39356 | |
84-3727412 |
| (State or other jurisdiction | |
(Commission | |
(IRS Employer |
| of incorporation) | |
File Number) | |
Identification No.) |
| 555 West 18th Street, New York, NY | |
10011 |
| (Address of principal executive offices) | |
(Zip Code) |
Registrant's
telephone number, including area code: (212)
314-7300
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of exchange on which registered |
| Common Stock, par value $0.0001 |
IAC |
The Nasdaq Stock Market LLC
(Nasdaq Global Select Market) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
On November 26, 2024, Dotdash Meredith Inc.
(the “Borrower”), a subsidiary of IAC Inc., and certain of its subsidiaries entered into that certain Amendment No. 1
(the “Amendment”) with the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent and collateral
agent (“JPMorgan”), amending that certain Credit Agreement, dated as of December 1, 2021 (as previously amended,
supplemented or otherwise modified prior to such date, the “Credit Agreement”), by and among the Borrower, the lenders
and issuing banks party thereto from time to time and JPMorgan, as administrative agent and collateral agent.
Pursuant to the Amendment, $1,182,500,000 in aggregate
principal amount of term B loans outstanding under the Credit Agreement (the “Existing Term B Loans”) were replaced
with an equal amount of new term B loans (the “New Term B Loans”) having substantially similar terms as the Existing
Term B Loans, except with respect to the interest rate margin applicable to the New Term B Loans as discussed below and certain other
provisions applicable to all loans and commitments outstanding under the Credit Agreement, which were amended as part of the Amendment.
Immediately prior to the effectiveness of the Amendment, the Borrower prepaid $30,000,000 in aggregate principal amount of Existing Term
B Loans.
The interest rate margin applicable to the New
Term B Loans was reduced from 3.00% to 2.50% (with a floor of 1.50%), in the case of alternate base rate loans, and from 4.00% to 3.50%
(with a floor of 0.50%), in the case of term benchmark loans. The credit spread adjustment applicable to term benchmark loans was eliminated
with respect to New Term B Loans. The maturity date of the New Term B Loans is December 1, 2028, the same as the maturity date of
the Existing Term B Loans.
The foregoing description of the Amendment is not
intended to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed as Exhibit 10.1
hereto and is incorporated by reference herein.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01 above
is incorporated by reference into this Item 2.03.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| |
IAC Inc. |
| |
|
| |
By: |
/s/ Kendall Handler |
| |
|
Kendall Handler |
| |
|
Executive Vice President, Chief Legal Officer &
Secretary |
Date: November 26, 2024
Exhibit 10.1
Execution Version
AMENDMENT NO. 1, dated as of November 26,
2024 (this “Amendment”). Reference is made to the Credit Agreement dated as of December 1, 2021 (as amended, restated,
modified and supplemented from time to time prior to the date hereof, the “Credit Agreement”, and the Credit Agreement,
as amended by this Amendment, the “Amended Credit Agreement”), by and among DOTDASH MEREDITH INC., a Delaware corporation
(the “Borrower”), the LENDERS and ISSUING BANKS party thereto from time to time and JPMORGAN CHASE BANK, N.A., as administrative
agent for the Lenders (in such capacity, the “Administrative Agent”), as collateral agent for the Secured Parties (in
such capacity, the “Collateral Agent”) and as an Issuing Bank. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Amended Credit Agreement.
W I T N E S S E T H :
WHEREAS, pursuant to Section 2.20 of the Credit
Agreement, the Borrower will obtain Refinancing Term Loans, which Refinancing Term Loans shall be used to refinance in full the principal
amount of all Indebtedness in respect of the Term B Loans (as defined in the Credit Agreement) outstanding immediately prior to giving
effect to this Amendment (the “Existing Term B Loans”);
WHEREAS, each Term B Lender under the Credit Agreement
immediately prior to the Amendment No. 1 Effective Date (each, an “Existing Term B Lender”) that executes and
delivers a signature page to the form set forth in Annex I hereto (a “Lender Addendum”) will thereby agree to
(i) the terms of this Amendment and the Amended Credit Agreement as set forth on Exhibit A hereto and (ii) exchange
all (or such lesser amount notified to such Existing Term B Lender by the Administrative Agent on or prior to the Amendment No. 1
Effective Date) of such Existing Term B Lender’s Existing Term B Loans for Term B-1 Loans under the Amended Credit Agreement and
thereafter become a Term B-1 Lender;
WHEREAS, each Person that executes and delivers
a signature page to this Amendment as an Additional Term B-1 Lender will make Additional Term B-1 Loans to the Borrower on the Amendment
No. 1 Effective Date in an amount equal to its Additional Term B-1 Commitment set forth on Schedule I hereto, the proceeds of which
will be used by the Borrower to repay in full the outstanding principal amount of Non-Exchanged Term B Loans;
WHEREAS, the Rollover Term B Lenders and the Additional
Term B-1 Lender are severally willing to exchange their Existing Term B Loans and to make Additional Term B-1 Loans, as applicable, and
thereafter, the Rollover Term B Lenders and the Additional Term B-1 Lender shall constitute the “Term B-1 Lenders” holding
“Term B-1 Loans” from and after the Amendment No. 1 Effective Date for all purposes of the Loan Documents; and
WHEREAS, pursuant to (i) Section 9.02(b) of
the Credit Agreement, the Credit Agreement may be amended pursuant to an agreement in writing entered into by the Borrower and the Required
Lenders or the Administrative Agent with the consent of the Required Lenders and (ii) Section 9.03(b) of the Credit Agreement,
the Security Agreement may be amended pursuant to an agreement in writing entered into by the Loan Parties party thereto and the Required
Lenders or the Administrative Agent or the Collateral Agent with the consent of the Required Lenders;
WHEREAS, pursuant to Sections 2.20, 9.02(b) and
9.03(b) of the Credit Agreement, as applicable, the Existing Term B Lenders, the Additional Term B-1 Lenders, the Required Lenders
and the Borrower, as applicable, are willing to amend the Credit Agreement as set forth herein (including Exhibit A hereto)
and the Security Agreement on the terms set forth in that certain First Amendment to Security Agreement, dated as of the date hereof (“Security
Agreement Amendment”).
NOW, THEREFORE, the parties hereto agree as follows:
Section 1
Amendments.
Effective as of the Amendment No. 1 Effective Date:
(a) The
Credit Agreement is hereby 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 Amended Credit Agreement attached as Exhibit A hereto; and
(b) The
Security Agreement is hereby amended as set forth in the Security Agreement Amendment, a form of which is attached as Exhibit B
hereto.
Section 2.
Break Funding Payments.
(a) The
Lenders party hereto waive the payment of any breakage loss or expense or other amounts that would otherwise be due under Section 2.13
of the Credit Agreement in connection with the refinancing or repayment of the Existing Term B Loans pursuant to this Amendment, including
any voluntary prepayments of Term B Loans made in connection with this Amendment on or prior to the Amendment No. 1 Effective Date.
Section 3. Amendment
Effectiveness. This Amendment shall become effective on the date when the following conditions are met or waived (the
“Amendment No. 1 Effective Date”):
(a) the
Administrative Agent or its counsel shall have received a counterpart signature page of this Amendment (or, in the case of the Rollover
Term B Lenders, a Lender Addendum) duly executed by each of the Loan Parties, the Administrative Agent and the Required Lenders (including
the Additional Term B-1 Lenders, and all Rollover Term B Lenders);
(b) the
conditions set forth in Section 2.20(a) of the Credit Agreement shall have been satisfied or waived;
(c) the
representations and warranties set forth in Section 4 hereof shall be true and correct on and as of the Amendment No. 1 Effective
Date (or such other date set forth in Section 4);
(d) the
Administrative Agent or its counsel shall have received a certificate (in form and substance reasonably acceptable to the Administrative
Agent), dated as of the Amendment No. 1 Effective Date and signed by the Chief Executive Officer, a Vice President, a Financial Officer
of the Borrower or any other executive officer of the Borrower who has specific knowledge of the Borrower’s financial matters and
is satisfactory to the Administrative Agent, as to the satisfaction of the conditions set forth in clauses (b) and (c) above;
(e) the
Administrative Agent or its counsel shall have received the favorable written opinion (addressed to the Administrative Agent and the Lenders
as of the Amendment No. 1 Effective Date and dated the Amendment No. 1 Effective Date) of (i) Wachtell, Rosen, Lipton &
Katz, counsel for the Borrower and certain of the Loan Parties, (ii) Potter Anderson & Corroon LLP, Delaware counsel for
the Borrower and certain of the Loan Parties and (iii) Nyemaster Goode, P.C., Iowa counsel for certain of the Loan Parties in
each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel;
(f) all
accrued and unpaid interest on the Term B Loans to but excluding the Amendment No. 1 Effective Date shall have been paid in full
by Borrower;
(g) the
Administrative Agent shall have received from the Borrower (i) all fees required to be paid to the Engagement Parties (as defined
in the Engagement Letter) as separately agreed pursuant to the Engagement Letter dated as of November 15, 2024, among the Borrower
and the Engagement Parties (the “Engagement Letter”) and (ii) all expenses required to be paid or reimbursed under
Section 9.04(a) of the Credit Agreement for which invoices have been presented at least three (3) Business Days prior to
the Amendment No. 1 Effective Date;
(h) the
Administrative Agent or its counsel shall have received a certificate of each Loan Party substantially in the form of Exhibit E (including
all annexes, exhibits and other attachments thereto) to the Credit Agreement, dated the Amendment No. 1 Effective Date;
(i) the
Administrative Agent shall have received a certificate of the Borrower substantially in the form of Exhibit I to the Credit Agreement,
dated the Amendment No. 1 Effective Date;
(j) each
Loan Party shall have provided the documentation and other information requested by the Additional Term B-1 Lender that is required by
regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including
without limitation, the Act and the Beneficial Ownership Regulations, in each case as requested at least five (5) Business Days prior
to the Amendment No. 1 Effective Date; and
(k) the
Administrative Agent shall have received the results of a recent lien search with respect to each Loan Party, and such search shall reveal
no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.02 of the Credit Agreement or discharged
on or prior to the Amendment No. 1 Effective Date pursuant to documentation satisfactory to the Administrative Agent (it being agreed
that the Administrative Agent has received such satisfactory results).
Section 4.
Representations and Warranties. Each Loan Party represents and warrants to the Administrative Agent and the Lenders as of the Amendment
No. 1 Effective Date:
(a) The
representations and warranties of each Loan Party contained in Article III of the Credit Agreement and in this Amendment are true
and correct in all material respects as of the date hereof (except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they were true and correct as of such earlier date); provided, that, to the extent that
such representations and warranties are qualified by materiality, Material Adverse Effect or similar language, they are true and correct
in all respects.
(b) No
Default or Event of Default exists or will result from this Amendment.
Section 5.
Costs and Expenses. The Borrower agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative
Agent (including the reasonable and documented fees and expenses of Cahill Gordon & Reindel LLP, counsel to the Administrative
Agent) in connection with the preparation, execution, delivery and administration of this Amendment and the other instruments and documents
to be delivered hereunder in accordance with the terms of Section 9.04 of the Credit Agreement.
Section 6.
Applicable Law; Waiver of Jury Trial; Jurisdiction; Consent to Service of Process. The provisions set forth in Sections
9.10 and 9.11 of the Credit Agreement are hereby incorporated mutatis mutandis with all references to the “Agreement”
therein being deemed references to this Amendment.
Section 7.
Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed
to be an original, but all of which when taken together shall constitute a single instrument. The words “execution,” “signed,”
“signature,” “delivery,” and words of like import in or relating to this Amendment and/or any document to be
signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as
defined below), 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. “Electronic Signatures” means any electronic symbol or process attached to, or associated with, any contract or other
record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
Section 8.
Effect of Amendment; Reaffirmation. Except as expressly set forth herein, (i) this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative
Agent or the Collateral Agent, in each case under the Credit Agreement or any other Loan Document, and (ii) 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 either such agreement or any other Loan Document (except as set forth in the Security Agreement Amendment). Each
and every term, condition, obligation, covenant and agreement contained in the Amended Credit Agreement and the Security Agreement Amendment,
or any other Loan Document, is hereby ratified and re-affirmed in all respects and shall continue in full force and effect. This
Amendment shall constitute a Loan Document for purposes of the Credit Agreement and from and after the Amendment No. 1 Effective
Date, all references to the Credit Agreement in any Loan Document and all references in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided
otherwise, refer to the Amended Credit Agreement. Each Loan Party hereby acknowledges its receipt of a copy of this Amendment and
its review of the terms and conditions hereof and consents to the terms and conditions hereof and the transactions contemplated thereby.
Each Subsidiary Guarantor hereby (a) affirms and confirms its guarantees and other commitments under the Guarantee Agreement and
(b) agrees that the Guarantee Agreement is in full force and effect and shall accrue to the benefit of the Secured Parties to guarantee
the Obligations, including the Term B-1 Loans. Each Loan Party hereby (a) affirms and confirms its pledges, grants and other commitments
under the Security Agreement and (b) agrees that the Security Agreement (as amended by the Security Agreement Amendment) is in full
force and effect and shall accrue to the benefit of the Secured Parties to secure the Obligations, including the Term B-1 Loans. The parties
hereto acknowledge and agree that the amendment of the Credit Agreement pursuant to this Amendment is not intended to constitute a novation
of the Credit Agreement or the other Loan Documents as in effect prior to the Amendment No. 1 Effective Date.
Section 9.
Certain Agreements. The parties hereto consent to the incurrence of the Exchanged Term B Loans and the Additional Term
B-1 Loans on the terms set forth herein. Upon the effectiveness of this Amendment, all conditions and requirements set forth in the Credit
Agreement or the other Loan Documents relating to the incurrence of the Exchanged Term B Loans and the Additional Term B-1 Loans shall
be deemed satisfied and the incurrence of the Exchanged Term B Loans and the Additional Term B-1 Loans shall be deemed arranged and consummated
in accordance with the terms of the Credit Agreement and other Loan Documents. The parties hereto agree that the notice requirements under
the Credit Agreement to the extent relating to (i) the prepayment of any Existing Term B Loans on the Amendment No. 1 Effective
Date in connection with the refinancing thereof as contemplated hereby and (ii) the borrowing and establishment of the Additional
Term B-1 Loans shall not apply to such refinancing and borrowing of Additional Term B-1 Loans, and prior notice periods with respect to
such refinancing and borrowing of Additional Term B-1 Loans shall be as agreed among the Borrower and the Administrative Agent (it being
understood that no other notice requirements under any Loan Document are waived, altered or changed in any way pursuant to this Amendment).
The initial Interest Period with respect to the Term B-1 Loans shall commence on the Amendment No. 1 Effective Date and end on December 2,
2024. The interest payment at the end of such initial Interest Period shall be calculated using the Term SOFR Rate applicable to
the Existing Term B Loans immediately prior to the Amendment No. 1 Effective Date, plus the Applicable Rate applicable to
Term B-1 Loans. Thereafter the Interest Periods and interest rates shall be determined as forth in the Credit Agreement.
SECTION 10. Security Agreement Amendment.
By consenting to this Amendment, the Lenders party hereto (which constitute all Lenders as of the Amendment No. 1 Effective Date),
authorize the Administrative Agent (in its capacity as Collateral Agent) to enter into the Security Agreement Amendment.
SECTION 11. Certain Tax Matters. For
US federal and applicable state and local income tax purposes, the parties shall treat all of the Term B-1 Loans, whether issued for cash
or in exchange for Exchanged Term B Loans, as one fungible tranche.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed as of the date first above written.
| |
DOTDASH MEREDITH INC. |
| |
|
| |
By: |
/s/ Nick Stoumpas |
| |
|
Name: |
Nick Stoumpas |
| |
|
Title: |
Vice President and Treasurer |
| |
ALLRECIPES.COM, INC. |
| |
BIZRATE INSIGHTS INC. |
| |
EATING WELL, LLC |
| |
ENTERTAINMENT WEEKLY, LLC |
| |
HEALTH MEDIA VENTURES INC. |
| |
MEREDITH HOLDINGS CORPORATION |
| |
MEREDITH OPERATIONS CORPORATION |
| |
MNI TARGETED MEDIA INC. |
| |
NEWSUB MAGAZINE SERVICES LLC |
| |
NSSI HOLDINGS INC. |
| |
SHOPNATION, INC. |
| |
SOUTHERN PROGRESS CORPORATION |
| |
SYNAPSE GROUP, INC. |
| |
TI CIRCULATION HOLDINGS LLC |
| |
TI CONSUMER MARKETING, INC. |
| |
TI GOTHAM INC. |
| |
TI INC. AFFLUENT MEDIA GROUP |
| |
TI INC. BOOKS |
| |
TI INC. VENTURES |
| |
TI LIFESTYLE GROUP, LLC |
| |
TI MAGAZINE HOLDINGS LLC |
| |
TI PUBLISHING VENTURES, INC. |
| |
TI SALES HOLDINGS LLC |
| |
By: |
/s/ Nick Stoumpas |
| |
|
Name: |
Nick Stoumpas |
| |
|
Title: |
Vice President and Assistant Treasurer |
[Dotdash - Signature Page to Amendment No. 1]
| |
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent (including as Collateral Agent) and Lender |
| |
By: |
/s/ Matthew Cheung |
| |
|
Name: |
Matthew Cheung |
| |
|
Title: |
Executive Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
JPMORGAN CHASE BANK, N.A.,
as
Additional Term B-1 Lender |
| |
By: |
/s/ Matthew Cheung |
| |
|
Name: |
Matthew Cheung |
| |
|
Title: |
Executive Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
BANK OF AMERICA, N.A.,
as a Lender |
| |
By: |
/s/ Laura L. Olson |
| |
|
Name: |
Laura L. Olson |
| |
|
Title: |
Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
By: |
/s/ David Berger |
| |
|
Name: |
David Berger |
| |
|
Title: |
Managing Director |
| |
By: |
/s/ Nathan Harwood |
| |
|
Name: |
Nathan Harwood |
| |
|
Title: |
Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
By: |
/s/ Shae B. Patel |
| |
|
Name: |
Shae B. Patel |
| |
|
Title: |
Director |
| |
By: |
/s/ Stuart Johnston |
| |
|
Name: |
Stuart Johnston |
| |
|
Title: |
Managing Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
BMO Bank N.A.,
as a Lender |
| |
By: |
/s/ Victor
Davida |
| |
|
Name: |
Victor Davida |
| |
|
Title: |
Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
PNC BANK, NATIONAL ASSOCIATION,
as a Lender |
| |
By: |
/s/ Blaise Schultheis |
| |
|
Name: |
Blaise Schultheis |
| |
|
Title: |
Senior Vice President |
[Dotdash - Signature Page to Amendment No. 1]
| |
CITIZENS BANK, N.A.,
as a Lender |
| |
By: |
/s/ Michael DeVivo |
| |
|
Name: |
Michael DeVivo |
| |
|
Title: |
Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
SOCIETE GENERALE,
as a Revolving Lender and Term A Lender and
Issuing Bank |
| |
By: |
/s/ Jonathan Logan |
| |
|
Name: |
Jonathan Logan |
| |
|
Title: |
Managing Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
CITIBANK, N.A.,
as a Lender |
| |
By: |
/s/ Ioannis Theocharis |
| |
|
Name: |
Ioannis Theocharis |
| |
|
Title: |
Vice President |
[Dotdash - Signature Page to Amendment No. 1]
| |
HSBC BANK USA, NATIONAL ASSOCIATION,
as a Lender |
| |
By: |
/s/ Kyle O’Reilly |
| |
|
Name: |
Kyle O’Reilly |
| |
|
Title: |
Director #23203 |
[Dotdash - Signature Page to Amendment No. 1]
| |
MIZUHO BANK, LTD.,
as a Lender |
| |
By: |
/s/ Tracy Rahn |
| |
|
Name: |
Tracy Rahn |
| |
|
Title: |
Managing Director |
[Dotdash - Signature Page to Amendment No. 1]
| |
GOLDMAN SACHS BANK USA,
as a Lender |
| |
By: |
/s/ Priyankush Goswami |
| |
|
Name: |
Priyankush Goswami |
| |
|
Title: |
Authorized Signatory |
[Dotdash - Signature Page to Amendment No. 1]
ANNEX I
LENDER ADDENDUM TO
AMENDMENT NO. 1
This Lender Addendum (this “Lender Addendum”)
is referred to in, and is a signature page to, Amendment No. 1 (the “Amendment”) to the Credit Agreement
dated as of December 1, 2021, by and among DOTDASH MEREDITH INC., a Delaware corporation (the “Borrower”), the
LENDERS and ISSUING BANKS party hereto from time to time, JPMORGAN CHASE BANK, N.A., as Administrative Agent for the Lenders (in such
capacity, the Administrative Agent) and as collateral agent for the Secured Parties (in such capacity, the Collateral Agent) and as an
Issuing Bank (as further amended, restated, modified and supplemented from time to time prior to the date hereof, the “Credit
Agreement”, and the Credit Agreement, as amended by this Amendment, the “Amended Credit Agreement”). Capitalized
terms used but not defined in this Lender Addendum have the meanings assigned to such terms in the Amendment or Amended Credit Agreement,
as applicable.
By executing this Lender Addendum as a Rollover Term
B Lender, the undersigned institution agrees and elects, as applicable, (A) to the terms of the Amendment and the Credit Agreement
as amended thereby and of the Security Agreement Amendment (as defined in the Amendment) and (B) on the terms and subject to the
conditions set forth in the Amendment and the Credit Agreement as amended thereby, to exchange all of its Existing Term B Loans (or such
lesser amount notified to such undersigned institution by the Administrative Agent on or prior to the Amendment No. 1 Effective Date)
for Term B-1 Loans under the Credit Agreement as amended by the Amendment on the Amendment No. 1 Effective Date.
[ROLLOVER TERM B LENDER SIGNATURE PAGES ON FILE WITH THE ADMINISTRATIVE AGENT]
SCHEDULE 1
| Additional Term B-1 Lender |
Additional Term B-1 Loan Commitment |
| JPMorgan Chase Bank, N.A. |
$96,733,511.00 |
| Total |
$96,733,511.00 |
Exhibit A
Amended Credit Agreement
[Attached]
EXECUTION VERSION
EXHIBIT A
CREDIT AGREEMENT
Dated as of December 1, 2021,
as
amended by Joinder and Reaffirmation Agreement, dated as of March 1, 2024,
and
as further amended by Amendment No.1, dated as of November 26, 2024
among
DOTDASH
MEREDITH, INC.
as Borrower,
THE LENDERS and ISSUING BANKS PARTY HERETO,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and as Collateral Agent
JPMORGAN CHASE BANK, N.A.,
BOFA SECURITIES, INC.
BNP PARIBAS SECURITIES CORP. and
TRUIST SECURITIES, INC.,
as
Joint Lead Arrangers and Joint Bookrunners,
and
CITIGROUP GLOBAL MARKETS INC.,
GOLDMAN
SACHS BANK USA
PNC
CAPITAL MARKETS LLC, and
SOCIéTé
GéNéRALE,
as Co-Documentation Agents under the Revolving Facility and Term A Facility, and Senior Co-Managers under the Term B-1
Facility
and
BANK OF MONTREAL
BMO
CAPITAL MARKETS CORP.,
CITIZENS BANK, and
HSBC BANK USA, NATIONAL ASSOCIATION, and
MIZUHO
SECURITIES USA LLC
as Co-Managers under the Term B-1
Facility
TABLE
OF CONTENTS
Page
ARTICLE I
Definitions
| SECTION 1.01 |
Defined Terms |
1 |
| SECTION 1.02 |
Classification of Loans and Borrowings |
64 |
| SECTION 1.03 |
Terms Generally |
64 |
| SECTION 1.04 |
Accounting Terms; GAAP |
65 |
| SECTION 1.05 |
Change of Currency |
65 |
| SECTION 1.06 |
Currency Equivalents Generally |
65 |
| SECTION 1.07 |
Certain Determinations |
66 |
| SECTION 1.08 |
Limited Condition Transactions |
66 |
| SECTION 1.09 |
Interest Rates; Benchmark Notification |
68 |
| SECTION 1.10 |
Divisions |
68 |
ARTICLE II
The Credits
| SECTION 2.01 |
Commitments |
68 |
| SECTION 2.02 |
Incremental Revolving Commitments and Incremental Term
Loans |
69 |
| SECTION 2.03 |
Procedure for Borrowing |
72 |
| SECTION 2.04 |
Funding of Borrowings |
72 |
| SECTION 2.05 |
Interest Elections |
73 |
| SECTION 2.06 |
Termination and Reduction of Commitments |
74 |
| SECTION 2.07 |
Repayment of Loans; Evidence of Debt |
74 |
| SECTION 2.08 |
Prepayments |
75 |
| SECTION 2.09 |
Fees |
77 |
| SECTION 2.10 |
Interest |
78 |
| SECTION 2.11 |
Alternate Rate of Interest |
79 |
| SECTION 2.12 |
Increased Costs |
81 |
| SECTION 2.13 |
Break Funding Payments |
82 |
| SECTION 2.14 |
Taxes |
83 |
| SECTION 2.15 |
Pro Rata Treatment and Payments |
85 |
| SECTION 2.16 |
Mitigation Obligations; Replacement of Lenders |
86 |
| SECTION 2.17 |
Letters of Credit |
87 |
| SECTION 2.18 |
Defaulting Lenders |
92 |
| SECTION 2.19 |
Extensions of Commitments |
94 |
| SECTION 2.20 |
Refinancing Amendments |
95 |
| SECTION 2.21 |
Illegality |
99 |
| SECTION 2.22 |
Loan Repurchases |
99 |
ARTICLE III
Representations and Warranties
| SECTION 3.01 |
Organization; Powers |
101 |
| SECTION 3.02 |
Authorization; Enforceability |
101 |
| SECTION 3.03 |
Governmental Approvals; No Conflicts |
101 |
| SECTION 3.04 |
Financial Position |
101 |
| SECTION 3.05 |
Properties |
102 |
| SECTION 3.06 |
Litigation and Environmental Matters |
102 |
| SECTION 3.07 |
Compliance with Laws and Agreements |
102 |
| SECTION 3.08 |
Investment Company Status |
102 |
| SECTION 3.09 |
Taxes |
102 |
| SECTION 3.10 |
ERISA |
103 |
| SECTION 3.11 |
Disclosure |
103 |
| SECTION 3.12 |
Collateral Documents |
103 |
| SECTION 3.13 |
No Change |
103 |
| SECTION 3.14 |
Guarantors |
104 |
| SECTION 3.15 |
Solvency |
104 |
| SECTION 3.16 |
No Default |
104 |
| SECTION 3.17 |
Anti-Corruption Laws and Sanctions |
104 |
ARTICLE IV
Conditions
| SECTION 4.01 |
Closing Date |
104 |
| SECTION 4.02 |
Each Credit Event |
106 |
ARTICLE V
Affirmative Covenants
| SECTION 5.01 |
Financial Statements; Other Information |
107 |
| SECTION 5.02 |
Notices of Material Events |
109 |
| SECTION 5.03 |
Existence; Conduct of Business |
109 |
| SECTION 5.04 |
Payment of Obligations |
109 |
| SECTION 5.05 |
Maintenance of Properties; Insurance |
109 |
| SECTION 5.06 |
Books and Records; Inspection Rights |
110 |
| SECTION 5.07 |
Compliance with Laws |
110 |
| SECTION 5.08 |
Use of Proceeds |
111 |
| SECTION 5.09 |
Subsidiary Guarantors and Collateral |
111 |
| SECTION 5.10 |
[Reserved] |
112 |
| SECTION 5.11 |
Further Assurances |
112 |
| SECTION 5.12 |
Post-Closing Matters |
112 |
ARTICLE VI
Negative Covenants
| SECTION 6.01 |
Indebtedness |
112 |
| SECTION 6.02 |
Liens |
116 |
| SECTION 6.03 |
Fundamental Changes |
118 |
| SECTION 6.04 |
Disposition of Property |
120 |
| SECTION 6.05 |
Restricted Payments |
121 |
| SECTION 6.06 |
Transactions with Affiliates |
123 |
| SECTION 6.07 |
Changes in Fiscal Periods |
124 |
| SECTION 6.08 |
Sales and Leasebacks |
124 |
| SECTION 6.09 |
Clauses Restricting Subsidiary Distributions |
124 |
| SECTION 6.10 |
Consolidated Net Leverage Ratio;
Interest Coverage Ratio |
126 |
| SECTION 6.11 |
Investments |
126 |
ARTICLE VII
Events of Default
| SECTION 7.01 |
Events of Default |
128 |
ARTICLE VIII
The Administrative Agent and the Collateral Agent
| SECTION 8.01 |
Appointment and Authorization |
131 |
| SECTION 8.02 |
Administrative Agent and Affiliates |
131 |
| SECTION 8.03 |
Action by Administrative Agent |
132 |
| SECTION 8.04 |
Consultation with Experts |
132 |
| SECTION 8.05 |
Delegation of Duties |
132 |
| SECTION 8.06 |
Successor Administrative Agent |
132 |
| SECTION 8.07 |
Credit Decision |
133 |
| SECTION 8.08 |
Lead Arrangers; Co-Documentation Agents; Senior Co-Managers;
Co-Managers |
133 |
| SECTION 8.09 |
Tax Indemnification by the Lenders |
133 |
| SECTION 8.10 |
Certain ERISA Matters |
133 |
| SECTION 8.11 |
Acknowledgement of Lenders and Issuing Banks |
134 |
ARTICLE IX
Miscellaneous
| SECTION 9.01 |
Notices |
136 |
| SECTION 9.02 |
Waivers; Amendments |
137 |
| SECTION 9.03 |
Waivers; Amendments to Other Loan Documents |
138 |
| SECTION 9.04 |
Expenses; Indemnity; Damage Waiver |
139 |
| SECTION 9.05 |
Successors and Assigns |
140 |
| SECTION 9.06 |
Survival |
144 |
| SECTION 9.07 |
Counterparts; Integration; Effectiveness |
144 |
| SECTION 9.08 |
Severability |
145 |
| SECTION 9.09 |
Right of Setoff |
145 |
| SECTION 9.10 |
Governing Law; Jurisdiction; Consent to Service of
Process |
145 |
| SECTION 9.11 |
WAIVER OF JURY TRIAL |
146 |
| SECTION 9.12 |
Headings |
146 |
| SECTION 9.13 |
Confidentiality |
146 |
| SECTION 9.14 |
Judgment Currency |
147 |
| SECTION 9.15 |
USA PATRIOT Act and Beneficial Ownership Regulation |
147 |
| SECTION 9.16 |
Collateral and Guarantee Matters |
147 |
| SECTION 9.17 |
No Advisory or Fiduciary Relationship |
148 |
| SECTION 9.18 |
Platform; Borrower Materials |
149 |
| SECTION 9.19 |
Acknowledgement and Consent to Bail-In of EEA Financial
Institutions |
149 |
| SECTION 9.20 |
Acknowledgement Regarding Any Supported QFCs |
150 |
SCHEDULES:
| Schedule 1.01A |
-- |
Commitments |
| Schedule 1.01B |
-- |
Unrestricted Subsidiaries on Closing Date |
| Schedule 2.17 |
-- |
Existing Letters of Credit |
| Schedule 3.14 |
-- |
Guarantors |
| Schedule 5.12 |
-- |
Post-Closing Matters |
| Schedule 6.01 |
-- |
Existing Indebtedness |
| Schedule 6.02 |
-- |
Existing Liens |
| Schedule 6.09 |
-- |
Existing Restrictions |
| |
|
|
| EXHIBITS: |
|
|
| |
|
|
| Exhibit A |
-- |
Form of Assignment and Assumption |
| Exhibit B |
-- |
Form of Affiliated Lender Assignment and Assumption |
| Exhibit C |
-- |
[Reserved] |
| Exhibit D |
-- |
[Reserved] |
| Exhibit E |
-- |
Form of Secretary Certificate |
| Exhibit F |
-- |
[Reserved] |
| Exhibit G-1 |
-- |
Form U.S. Tax Certificate (For Non-U.S. Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit G-2 |
-- |
Form U.S. Tax Certificate (For Non-U.S. Participants
That Are Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit G-3 |
-- |
Form U.S. Tax Certificate (For Non-U.S. Participants
That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit G-4 |
-- |
Form U.S. Tax Certificate (For Non-U.S. Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit H |
-- |
Form of Perfection Certificate |
| Exhibit I |
-- |
Form of Solvency Certificate |
| Exhibit J |
-- |
Form of Joinder and Reaffirmation Agreement |
| Exhibit K |
-- |
Auction Procedures |
CREDIT AGREEMENT, dated as of December 1,
2021(as amended, restated, extended, supplemented or otherwise modified from time to time, this “Agreement”), among
DOTDASH MEREDITH, INC.
(f/k/a Dotdash Media Inc.), a Delaware corporation, the LENDERS
and ISSUING BANKS party hereto from time to time, JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity,
the “Administrative Agent”) and as collateral agent for the Secured Parties (as defined herein) (in such capacity,
the “Collateral Agent”) and as an Issuing Bank.
WHEREAS, Dotdash Media Inc. (f/k/a About, Inc.)
(“Dotdash”) has entered into an Agreement and Plan of Merger dated as of October 6, 2021, among Meredith Corporation,
Meredith Holdings Corporation (the “Target”), Dotdash and the other party thereto, as supplemented by a Joinder, dated
as of October 8, 2021, by Mercury Sub Inc. (“Merger Sub”), a wholly owned subsidiary of Dotdash (as so supplemented,
together with all schedules and exhibits thereto, and after giving effect to any further alteration, amendment, modification, supplement
or waiver permitted by Section 4.01(o) hereof, the “Merger Agreement”) pursuant to which Dotdash will acquire
the capital stock of the Target through the merger of Merger Sub with and into the Target, with the Target surviving the Merger as the
surviving corporation and a Wholly Owned Subsidiary of Dotdash (the “Merger”); and
WHEREAS, in connection with the consummation of
the transactions contemplated by the Merger Agreement, the Borrower has requested the Lenders and the Issuing Banks extend credit as
set forth herein;
WHEREAS,
on March 1, 2024, Dotdash Meredith, Inc. merged into Dotdash Meredith Inc. (f/k/a Dotdash Media Inc.) and, pursuant to that
certain Joinder and Reaffirmation Agreement, dated as of March 1, 2024 (the “2024 Joinder and Reaffirmation Agreement”)
Dotdash Meredith Inc. assumed all obligations of Dotdash Meredith, Inc. as Borrower and Pledgor, as applicable, under this Agreement
and the other Loan Documents;
NOW, THEREFORE, the Lenders and the Issuing Banks
are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined
Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR” when used in reference
to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined
by reference to the Alternate Base Rate.
“Accepting Term Lender” has
the meaning assigned to such term in Section 2.08(f).
“Act” has the meaning assigned
to such term in Section 9.15.
“Adjusted Daily Simple RFR”
means, (i) with respect to any RFR Borrowing denominated in Sterling, an interest rate per annum equal to (a) the Daily Simple
RFR for Sterling, plus (b) 0.0326%, and (ii) with respect to any RFR Borrowing denominated in Dollars, an interest rate per
annum equal to (a) the Daily Simple RFR for Dollars, plus (b) 0.10%; provided that if the Adjusted Daily Simple RFR
Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted EURIBOR Rate” means,
with respect to any Term Benchmark Borrowing denominated in Euros for any Interest Period, an interest rate per annum equal to (a)
the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted EURIBOR
Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate” means,
with respect to any Term Benchmark Borrowing denominated in Dollars for any Interest Period, an interest rate per annum equal to (a) the
Term SOFR Rate for such Interest Period, plus (b) (1) in
the case of Term B-1 Loans, 0.00%, (2) in the case of Revolving Loans and Term A Loans, 0.10% and (23)
in the case of Term B Loans, (A) 0.10% for an Interest Period of one month’s duration, (B) 0.15% for an Interest Period
of three month’s duration and (C) 0.25% for an Interest Period of six month’s duration; provided that if the
Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes
of this Agreement.
“Adjusted TIBOR Rate” means,
with respect to any Term Benchmark Borrowing denominated in Yen for any Interest Period, an interest rate per annum equal to (a) the
TIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted TIBOR Rate
as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjustment Date” has the meaning
assigned to such term in the definition of “Pricing Grid.”
“Additional
Term B-1 Commitment” means, with respect to an Additional Term B-1 Lender, the commitment of such Additional Term B-1 Lender to
make an Additional Term B-1 Loan hereunder on the Amendment No. 1 Effective Date, in the amount set forth on Schedule I to Amendment
No. 1. The aggregate amount of the Additional Term B-1 Commitments of all Additional Term B-1 Lenders shall equal the outstanding
aggregate principal amount of Non-Exchanged Term B Loans.
“Additional
Term B-1 Lender” means a Person with an Additional Term B-1 Commitment to make Additional Term B-1 Loans to the Borrower on the
Amendment No. 1 Effective Date.
“Additional
Term B-1 Loan” means a Loan that is made pursuant to Section 2.01(d) of the Credit Agreement on the Amendment No. 1
Effective Date.
“Administrative Agent” means
JPMorgan Chase Bank, N.A. (including its branches and affiliates), in its capacity as administrative agent for the Lenders hereunder
and, as applicable (including, for the avoidance of doubt, each reference to the Administrative Agent in Article VIII), as Collateral
Agent, together with any successors in such capacities.
“Administrative Questionnaire”
means an administrative questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution”
means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect
to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.
“Affiliated Lender” means,
at any time, any Lender that is an Affiliate of the Borrower (other than any of its subsidiaries) at such time.
“Affiliated Persons” means,
with respect to any specified Person, (a) such specified Person’s parents, spouse, siblings, descendants, step children, step
grandchildren, nieces and nephews and their respective spouses, (b) the estate, legatees and devisees of such specified Person and
each of the Persons referred to in clause (a), and (c) any company, partnership, trust or other entity or investment vehicle Controlled
by any of the Persons referred to in clause (a) or (b) or the holdings of which are for the primary benefit of any of such
Persons.
“Agent Party” means the Administrative
Agent, the Issuing Bank or any other Lender.
“Aggregate Exposure” means,
with respect to any Lender at any time, the sum of (a) the aggregate then outstanding principal amount of such Lender’s Term
Loans and (b) the amount of such Lender’s Revolving Commitment then in effect or, if such Revolving Commitment has been terminated,
such Lender’s Outstanding Revolving Credit.
“Agreed Currencies” means Dollars
and each Alternative Currency.
“Agreement” has the meaning
assigned to such term in the preamble to this Agreement.
“Agreement Currency” has the
meaning assigned to such term in Section 9.14.
“All-in Yield” means, as to
any Loans (or other Indebtedness, if applicable), the yield thereon to Lenders (or other lenders, as applicable) providing such Loans
(or other Indebtedness, if applicable) in the primary syndication thereof, as reasonably determined by the Administrative Agent in consultation
with the Borrower, whether in the form of interest rate, margin, original issue discount, up-front fees, rate floors or otherwise; provided
that (i) original issue discount and up-front fees shall be equated to interest rate based on an assumed four year average life;
and (ii) “All-in Yield” shall not include arrangement, commitment, underwriting, structuring or similar fees and customary
consent fees for an amendment paid generally to consenting lenders.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published
by two U.S. Government Securities Business Days prior to such day (or if such day is
not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted
Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or
any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference
Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR
Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR
Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.11 (for the
avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.11(b)), then the Alternate Base
Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
For the avoidance of doubt, (x) in the case of Term A Loans and Revolving Loans, if the Alternate Base Rate for Term A Loans
and Revolving Loans as determined pursuant to the foregoing sentence would be less than 1.00%, such rate for Term A Loans and Revolving
Loans shall be deemed to be 1.00% for purposes of this Agreement and (y) in the case of Term B Loans, if the Alternate Base Rate
for Term B Loans and Term B-1 Loans as determined pursuant to the
foregoing sentence would be less than 1.50%, such rate for Term B Loans and
Term B-1 Loans shall be deemed to be 1.50% for purposes of this Agreement.
“Alternative Currency” means
Sterling, Euro and Yen.
“Amendment
No. 1” means Amendment No. 1 to the Credit Agreement, dated as of the Amendment No.1 Effective Date.
“Amendment
No. 1 Effective Date” means November 26, 2024, the date on which all conditions precedent set forth in Section 3
of Amendment No. 1 are satisfied.
“Ancillary Document” has the
meaning assigned to such term in Section 9.07(b).
“Anti-Corruption Laws” means
the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder and the Bribery Act
2010 of the United Kingdom, as amended.
“Applicable Amortization Rate”
means, with respect to the Term A Loans, the rate set forth in the chart below:
| Period
Ended |
Rate
per annum |
| March 31,
2022 to and including December 31, 2024 |
5.00% |
| March 31,
2025 to and including December 31, 2025 |
10.00% |
| March 31,
2026 to and including September 30, 2026 |
15.00% |
“Applicable Rate” means (a) for
each Revolving Loan, (i) prior to the first Adjustment Date occurring after the Closing Date, 2.00% for Term Benchmark Loans and
1.00%% for ABR Loans and (ii) on and after the first Adjustment Date occurring after the Closing Date, a percentage determined in
accordance with the Pricing Grid, (b) for each Term A Loan, (i) prior to the first Adjustment Date occurring after the Closing
Date, 2.00% for Term Benchmark Loans and 1.00% for ABR Loans and (ii) on and after the first Adjustment Date occurring after the
Closing Date, a percentage determined in accordance with the Pricing Grid, (c) for each Term B Loan, 4.00% for Term Benchmark Loans
and 3.00% for ABR Loans, (d) for each Term B-1 Loan, 3.50% for Term
Benchmark Loans and 2.50% for ABR Loans and (de)
for each Type of Incremental Term Loan, such per annum rates as shall be agreed to by the Borrower and the applicable Incremental Term
Lenders as shown in the applicable Incremental Assumption Agreement.
“Applicable Time” means, with
respect to any Borrowings and payments in any Alternative Currency the local time in the place of settlement for such Alternative Currency,
as may be reasonably determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance
with normal banking procedures in the place of payment and notified to the relevant parties hereto.
“Approved Fund” has the meaning
assigned to such term in Section 9.05(b).
“Asset Acquisition” means:
(1) an
Investment by the Borrower or any Restricted Subsidiary in any other Person if, as a result of such Investment, such Person shall become
a Restricted Subsidiary, or shall be merged with or into the Borrower or any Restricted Subsidiary, or
(2) the
acquisition by the Borrower or any Restricted Subsidiary of all or substantially all of the assets of any other Person or any division
or line of business of any other Person.
“Asset Sale” means any sale,
issuance, conveyance, transfer, lease, assignment or other disposition by the Borrower or any Restricted Subsidiary to any Person other
than the Borrower or any Restricted Subsidiary or any Person that becomes a Restricted Subsidiary in connection with such disposition
(including by means of a sale and leaseback transaction or a merger or consolidation) (collectively, for purposes of this definition,
a “transfer”), in one transaction or a series of related transactions, of any assets of the Borrower or any of its
Restricted Subsidiaries other than in the ordinary course of business. For purposes of this definition, the term “Asset Sale”
shall not include:
(1) transfers
of cash or Cash Equivalents;
(2) transfers
of assets (including Equity Interests) that are governed by, and made in accordance with, Section 6.03;
(3) Restricted
Payments not prohibited under the covenant described under Section 6.05 and Investments not prohibited by Section 6.11;
(4) the
creation or perfection of any Lien not prohibited under this Agreement;
(5) transfers
of assets that are (i) damaged, worn out, uneconomic, obsolete or otherwise deemed to be no longer necessary or useful in the current
or anticipated business of the Borrower or its Restricted Subsidiaries or (ii) replaced by assets of similar suitability and value
(as determined by the Borrower in good faith);
(6) sales
or grants of licenses or sublicenses to use the patents, trade secrets, know-how and other intellectual property, and licenses, leases
or subleases of other assets, of the Borrower or any Restricted Subsidiary to the extent not materially interfering with the business
of the Borrower and the Restricted Subsidiaries;
(7) any
transfer or series of related transfers that, but for this clause, would be Asset Sales, if the aggregate Fair Market Value of the assets
transferred in such transaction or any such series of related transactions does not exceed the
greater of (i) $80,000,000 and (ii) 25% of Consolidated
EBITDA for the then most recently ended Test Period;
(8) dispositions
in connection with any pension scheme and disposition of any assets of any pension scheme of the Target and its Subsidiaries as of the
Closing Date;
(9) the
sale or other disposition of cash or Cash Equivalents or the unwinding, or sale in the ordinary course of business, of hedging obligations;
(10) the
transfer, sale or other disposition resulting from any involuntary loss of title, involuntary loss or damage to or destruction of or
any condemnation or other taking of, any property or assets of the Borrower or any Restricted Subsidiary;
(11) sales,
transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell
arrangements between the joint venture parties set forth in joint venture arrangements or similar binding arrangements;
(12) the
lapse, cancellation, surrender, abandonment or transfer for no consideration of intellectual property rights that is reasonably determined
in good faith by the Borrower to be no longer used or useful, necessary or otherwise not material to the operation of the business of
the Borrower and its Restricted Subsidiaries, or no longer economical to maintain;
(13) any
sale, issuance or other disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(14) the
surrender, expiration or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;
(15) dispositions
of real property (i) for the purpose of (x) resolving minor title disputes or defects, including encroachments and lot line
adjustments, or (y) granting easements, rights of way or access and egress agreements, or (ii) to any Governmental Authority
in consideration of the grant, issuance, consent or approval of or to any development agreement, change of zoning or zoning variance,
permit or authorization in connection with the conduct of any Loan Party’s business, in each case which does not materially interfere
with the business conducted on such real property;
(16) dispositions
of non-core assets acquired in connection with an Asset Acquisition or other permitted Investment or made to obtain the approval of an
antitrust authority and any dispositions made to comply with an order of any agency or state authority or other regulatory body or any
applicable law or regulation; and
(17) any
financing transaction with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date;
and
(18) dispositions
of Securitization Assets in connection with any Permitted Securitization.
“Asset Swap” means any exchange
of assets of the Borrower or any Restricted Subsidiary (including Equity Interests of a Restricted Subsidiary) for assets of another
Person (including Equity Interests of a Person whose primary business is a Related Business) that are intended to be used by the Borrower
or any Restricted Subsidiary in a Related Business, including, to the extent necessary to equalize the value of the assets being exchanged,
cash or Cash Equivalents of any party to such asset swap.
“assignee” has the meaning
assigned to such term in Section 9.05(b).
“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required
by Section 9.05), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved
by the Administrative Agent.
“Auction Manager” has the meaning
assigned to such term in Section 2.22(a).
“Auction Procedures” means
auction procedures with respect to Purchase Offers set forth in Exhibit K hereto.
“Auto-Extension Letter of Credit”
has the meaning assigned to such term in Section 2.17(b).
“Available Amount” means, as
at any date of determination, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:
(a) the
greater of (x) $224,000,000 and (y) 50.0% of Consolidated EBITDA, plus
(b) the
greatest of (i) 50% of Consolidated Net Income of the Borrower since October 1, 2021,
(ii) 100% of Retained Excess Cash Flow since October 1, 2021 and (iii) 100% of cumulative aggregate Consolidated EBITDA
since October 1, 2021, less the product of cumulative aggregate Consolidated Cash Interest Expense for such period
and 1.5; provided that the amounts in clauses (i), (ii), and (iii) shall not be less than zero, plus
(c) the
cumulative amount of all Declined Prepayment Amounts after the Closing Date, plus
(d) following
the Closing Date, the net cash proceeds or Fair Market Value received, as applicable, of any sale of Qualified Equity Interests by, or
capital contribution to the common equity of, the Borrower (other than in respect of any Qualified Equity Interests used for, or otherwise
having the effect of increasing, any other basket under this Agreement), plus
(e) the
net cash proceeds received by the Borrower from issuances of Indebtedness and Disqualified Equity Interests that have been issued after
the Closing Date and which have been exchanged or converted into Qualified Equity Interests, plus
(f) [reserved]the
aggregate amount of any Excluded Proceeds, plus
(g) the
amount of all Investments of the Borrower and its Restricted Subsidiaries after the Closing Date in any Unrestricted Subsidiary in reliance
on the Available Amount that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into the
Borrower or any of its Restricted Subsidiaries (up to the Fair Market Value of the Investments of the Borrower and its Restricted Subsidiaries
in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation), plus
(h) the
amount of all returns, profits, distributions and similar amounts received by the Borrower and its Restricted Subsidiaries on Investments
(including Investments in Unrestricted Subsidiaries) made using the Available Amount, minus
(i) the
net cash proceeds received by the Borrower and its Restricted Subsidiaries from sales of investments made using the Available Amount,
minus
(j) the
cumulative amount of Restricted Payments made from the Available Amount from and after the Closing Date and on or prior to such time,
minus
(k) the
cumulative amount of Investments made from the Available Amount from and after the Closing Date and on or prior to such time.
“Available Revolving Commitment”
means, as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment
then in effect at such time over (b) such Lender’s Outstanding Revolving Credit.
“Available Tenor” means, as
of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component
thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or
may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making
payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for
such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of Section 2.11.
“Bail-In Action” means the
exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial
Institution.
“Bail-In Legislation” means,
(a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of
the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time
which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United
Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating
to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through
liquidation, administration or other insolvency proceedings).
“Bankruptcy Event” means, with
respect to any Lender, such Lender or any other Person as to which such Lender is a subsidiary (a “Parent Company”)
(i) is adjudicated as, or determined by any Governmental Authority having regulatory authority over it or its assets to be, insolvent,
(ii) becomes the subject of a bankruptcy or insolvency proceeding, or the Administrative Agent has given written notice to such
Lender and the Borrower of its good faith determination that such Lender or its Parent Company has taken any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any such proceeding or (iii) has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its
business appointed for it, or the Administrative Agent has given written notice to such Lender and the Borrower of its good faith determination
that such Lender or its Parent Company has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any such appointment; provided that a Bankruptcy Event shall not result solely by virtue of any control of or ownership interest
in, or the acquisition of any control of or ownership interest in, such Lender or its Parent Company by a Governmental Authority as long
as such control or ownership interest does not result in or provide such Lender or its Parent Company 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 Lender or
its Parent Company (or such Governmental Authority) to reject, repudiate, disavow or disaffirm such Lender’s obligations under
this Agreement.
“Basel III” means, 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.
“Benchmark” means, initially,
with respect to any (i) RFR Loan in any Agreed Currency, the applicable Relevant Rate for such Agreed Currency or (ii) Term
Benchmark Loan, the Relevant Rate for such Agreed Currency; provided that if a Benchmark Transition Event, and the related Benchmark
Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current Benchmark for such Agreed Currency, then
“Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior
benchmark rate pursuant to clause (b) of Section 2.11.
“Benchmark Replacement”
means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent
for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an Alternative Currency,
“Benchmark Replacement” shall mean the alternative set forth in (2) below:
(1) in
the case of any Loan denominated in Dollars, the Adjusted Daily Simple RFR;
(2) the
sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement
for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation
of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving
or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated
credit facilities denominated in the applicable Agreed Currency at such time in the United States and (b) the related Benchmark
Replacement Adjustment;
If the Benchmark Replacement as determined pursuant
to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes
of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment”
means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest
Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating
or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative
Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of
a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the
applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any
evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities
denominated in the applicable Agreed Currency at such time.
“Benchmark Replacement Conforming Changes”
means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan denominated in Dollars, any technical, administrative
or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,”
the definition of “U.S. Government Securities Business Day,” the definition of “RFR Business Day,” the definition
of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests
or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical,
administrative or operational matters) that the Administrative Agent decides, after consultation with the Borrower, in its reasonable
discretion is appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof
by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in its
reasonable discretion that adoption of any portion of such market practice is not administratively feasible or if the Administrative
Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration
as the Administrative Agent decides in its reasonable discretion is reasonably necessary in connection with the administration of this
Agreement and the other Loan Documents).
“Benchmark Replacement Date”
means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in
the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date
of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark
(or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such
Benchmark (or such component thereof); or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or
the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be no longer representative; provided that such non-representativeness will be
determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor
of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event
giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination,
the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark
Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon
the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark
(or the published component used in the calculation thereof).
“Benchmark Transition Event”
means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of
information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing
that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently
or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue
to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of
information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation
thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, the central bank for the Agreed Currency applicable
to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution
authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency
or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator
of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof)
permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator
that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of
information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation
thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future
date will no longer be, representative.
For the avoidance of doubt, a “Benchmark
Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information
set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in
the calculation thereof).
“Benchmark Unavailability Period
means, with respect to any Benchmark, the period (if any) (x) beginning
at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time,
no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance
with Section 2.11 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all
purposes hereunder and under any Loan Document in accordance with Section 2.11.
“Beneficial Ownership Regulation”
means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of
(a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan”
as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or
otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan”
or “plan”.
“BHC Act Affiliate” of a party
means an “affiliate’ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Board” means the Board of
Governors of the Federal Reserve System of the United States of America.
“Board of Directors” means
the Board of Directors of the Borrower or, other than for the purposes of the definition of “Change of Control,” any committee
thereof duly authorized to act on behalf of such Board of Directors.
“Borrower” means Dotdash Meredith, Inc.
(f/k/a Dotdash Media Inc.), a Delaware corporation.
“Borrower Materials” has the
meaning assigned to such term in Section 9.18.
“Borrowing” means a group of
Loans of the same Type, made, converted or continued on the same date and, in the case of Term Benchmark Loans, as to which a single
Interest Period is in effect.
“Borrowing Date” means any
Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
“Borrowing Request” has the
meaning assigned to such term in Section 2.03(a).
“Business Day” means any day
that is not a Saturday, Sunday or other day on which commercial banks in New York City or Chicago are authorized or required by law to
remain closed; provided that when used in connection with (a) a Loan denominated in Dollars, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market, (b) any Borrowings
or LC Disbursements that are the subject of a borrowing, drawing, payment, reimbursement or rate selection denominated in Euro, the term
“Business Day” shall also exclude any day on which the Trans-European Real-time Gross Settlement Operating System (or any
successor operating system) is not open for the settlement of payments in Euro and (c) a Term Benchmark Loan denominated in an Alternative
Currency, the term “Business Day” shall also exclude any day on which banks are not open for dealings in such Alternative
Currency deposits in the interbank market in the principal financial center of the country whose lawful currency is such Alternative
Currency.
“Capital Expenditures” means,
for the Borrower and its Restricted Subsidiaries in respect of any period, the aggregate of all expenditures incurred by such person
during such period that, in accordance with GAAP, are or should be included in “additions to property, plant or equipment”
or similar items reflected in the statement of cash flows of such person; provided, however, that Capital Expenditures
for the Borrower and its Restricted Subsidiaries shall not include:
(a) expenditures
to the extent made with proceeds of the issuance of Qualified Equity Interests of the Borrower or capital contributions to the Borrower
or funds that would have constituted Net Proceeds under clause (a) of the definition of the term “Net Proceeds” (but
that will not constitute Net Proceeds as a result of the first or second proviso to such clause (a));
(b) expenditures
of proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets,
equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned
assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties
useful in the business of the Borrower and its Restricted Subsidiaries to the extent such proceeds are not then required to be applied
to prepay Term Loans pursuant to Section 2.08(c)(1);
(c) interest
capitalized during such period;
(d) expenditures
that are accounted for as capital expenditures of such person and that actually are paid for by a third party (excluding the Borrower
or any Restricted Subsidiary) and for which none of the Borrower or any Restricted Subsidiary has provided or is required to provide
or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or
after such period);
(e) the
book value of any asset owned by such person 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 (i) any expenditure necessary in order to permit such
asset to be reused shall be included as a Capital Expenditure during the period that such expenditure actually is made and (ii) such
book value shall have been included in Capital Expenditures when such asset was originally acquired;
(f) the
purchase price of equipment purchased during such period to the extent that the consideration therefor consists of any combination of
(i) used or surplus equipment traded in at the time of such purchase, (ii) the proceeds of a concurrent sale of used or surplus
equipment, in each case, in the ordinary course of business or (iii) any Asset Swap;
(g) Investments
in respect of an Asset Acquisition; or
(h) the
purchase of property, plant or equipment made with proceeds from any Asset Sale or Recovery Event to the extent such proceeds are not
then required to be applied to prepay Term Loans pursuant to Section 2.08(c)(1).
“Capital Lease Obligations”
of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for
as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP; provided, however, that any obligations relating to a lease that would have been accounted
by such Person as an operating lease in accordance with GAAP as of December 31, 2018 shall be accounted for as an operating lease
and not a Capital Lease Obligation for all purposes under this Agreement.
“Cash Capped Amount” has the
meaning assigned to such term in the definition of “Incremental Amount.”
“Cash Equivalents” means (1) marketable
direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed
by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (2) certificates
of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one year or less from the date of
acquisition issued by any commercial bank organized under the laws of the United States or any state thereof or any Lender or any Affiliate
of any Lender; (3) commercial paper of an issuer rated at least A-1 by Standard & Poor’s or P-1 by Moody’s,
or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within one year from the date of acquisition; (4) repurchase obligations
of any commercial bank satisfying the requirements of clause (2) of this definition with respect to securities issued or fully guaranteed
or insured by the United States government; (5) securities with maturities of one year or less from the date of acquisition issued
or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of
any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are rated at least A by Standard & Poor’s or
A by Moody’s; (6) securities with maturities of one year or less from the date of acquisition backed by standby letters of
credit issued by any commercial bank satisfying the requirements of clause (2) of this definition; (7) money market mutual
or similar funds that invest exclusively in assets satisfying the requirements of clauses (1) through (6) of this definition;
(8) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of
1940, as amended, (ii) are rated AAA by Standard & Poor’s or Aaa by Moody’s and (iii) have portfolio assets
of at least $5,000,000,000; and (9) in the case of any Foreign Subsidiary, investments substantially comparable to any of the foregoing
investments with respect to the country in which such Foreign Subsidiary is organized.
“Cash Management Agreement”
means any agreement entered into from time to time by the Borrower or any Restricted Subsidiary 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, unless, when entered into, such agreement is designated in writing by the Borrower
and the relevant Cash Management Bank to the Administrative Agent to not be included as a Cash Management Agreement.
“Cash Management Bank” means
any Person that (i) at the time it enters into a Cash Management Agreement or provides any Cash Management Services, is a Lender
or an Agent Party or an Affiliate of a Lender or an Agent Party or (ii) in the case of any Cash Management Agreement in effect or
any Cash Management Services provided, on or prior to the Closing Date, is, as of the Closing Date, a Lender or an Agent Party or an
Affiliate of a Lender or an Agent Party and a party to a Cash Management Agreement or provider of Cash Management Services.
“Cash Management Obligations”
means obligations owed by the Borrower or any Subsidiary Guarantor to any Cash Management Bank in connection with, or in respect of,
any Cash Management Services.
“Cash Management Services”
means (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.
“CBR Loan” means a Loan that
bears interest at a rate determined by reference to the Central Bank Rate.
“CBR Spread” means the Applicable
Rate, applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate” means a
rate per annum equal to the sum of, (A) the greater of (i) for any Loan denominated in (a) Sterling, the Bank of England
(or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to
time, (b) Euro, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the
fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published,
the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by
the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European
Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the
rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central
Bank (or any successor thereto) from time to time, (c) Yen, the “short-term prime rate” as publicly announced by the
Bank of Japan (or any successor thereto) from time to time, and (d) any other Alternative Currency determined after the Effective
Date, a central bank rate as determined by the Administrative Agent in its reasonable discretion and (ii) the Floor; plus (B) the
applicable Central Bank Rate Adjustment. Any change in the Central Bank Rate due to a change in the Central Bank Rate Adjustment shall
be effective from and including the effective date of such change in the Central Bank Rate Adjustment.
“Central Bank Rate Adjustment”
means, for any day, for any Loan denominated in (a) Euro, a rate equal to the difference (which may be a positive or negative value
or zero) of (i) the average of the Adjusted EURIBOR Rate for the five most recent Business Days preceding such day for which the
EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest Adjusted EURIBOR Rate applicable during
such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business Day in such
period, (b) Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average
of Adjusted Daily Simple RFR for Sterling Borrowings for the five most recent RFR Business Days preceding such day for which SONIA was
available (excluding, from such averaging, the highest and the lowest such Adjusted Daily Simple RFR applicable during such period of
five RFR Business Days) minus (ii) the Central Bank Rate in respect of Sterling in effect on the last RFR Business Day in such period,
(c) Yen, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of the Adjusted
TIBOR Rate for the five most recent Business Days preceding such day for which the TIBOR Screen Rate was available (excluding, from such
averaging, the highest and the lowest Adjusted TIBOR Rate applicable during such period of five Business Days) minus (ii) the Central
Bank Rate in respect of Yen in effect on the last Business Day in such period and (d) any other Alternative Currency determined
after the Effective Date, a Central Bank Rate Adjustment as determined by the Administrative Agent in its reasonable discretion. For
purposes of this definition, (x) the term Central Bank Rate shall be determined disregarding clause (B) of the definition of
such term and (y) each of the EURIBOR Rate and the TIBOR Rate on any day shall be based on the EURIBOR Screen Rate or the TIBOR
Screen Rate, as applicable, on such day at approximately the time referred to in the definition of such term for deposits in the applicable
Agreed Currency for a maturity of one month (or, in the event the EURIBOR Screen Rate or the TIBOR Screen Rate, as applicable, for deposits
in the applicable Agreed Currency is not available for such maturity of one month, shall be based on the EURIBOR Interpolated Rate or
the TIBOR Interpolated Rate, as applicable, as of such time).
“CFC” means a “controlled
foreign corporation” within the meaning of Section 957 of the Code.
“Change in Law” means (a) the
adoption of any law, rule, regulation or treaty after the ClosingAmendment
No. 1 Effective Date , (b) any change in any law, rule, regulation or treaty or in the interpretation or application
thereof by any Governmental Authority after the ClosingAmendment
No. 1 Effective Date or (c) compliance by any Lender (or, for purposes of Section 2.12(b), by any lending office
of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the ClosingAmendment
No. 1 Effective Date; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith
and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee
on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant
to Basel III, shall in each case be deemed to be a “Change in Law,” but only to the extent it is the general policy of a
Lender to impose applicable increased costs or costs in connection with capital adequacy requirements similar to those described in clauses
(a) and (b) of Section 2.12 generally on other similarly situated borrowers under similar circumstances under agreements
permitting such impositions.
“Change of Control” means any
of the following events: the acquisition of beneficial ownership by any person or group (excluding any one or more Permitted Holders
or group Controlled by any one or more Permitted Holders) of more than 35% of the aggregate voting power of all outstanding classes or
series of the Borrower’s Voting Stock and such aggregate voting power exceeds the aggregate voting power of all outstanding classes
or series of the Borrower’s Voting Stock beneficially owned by the Permitted Holders collectively;.
Notwithstanding the foregoing, a transaction in
which the Borrower becomes a subsidiary of another Person (other than a Person that is an individual or a Permitted Holder) shall not
constitute a Change of Control if (a) the shareholders of the Borrower immediately prior to such transaction beneficially own, directly
or indirectly through one or more intermediaries, the same proportion of voting power of the outstanding classes or series of the Borrower’s
voting stock as such shareholders beneficially own immediately following the consummation of such transaction or (b) immediately
following the transaction no person or group (other than a person or group satisfying the requirements of this sentence) is the owner,
directly or indirectly, of more than 35% of the voting stock of such Person, measured by voting power rather than number of shares.
For purposes of this definition, a Person shall
not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement
until the consummation of the transactions contemplated by such agreement.
“Class” (a) when used
in reference to any Loans or Borrowing, refers to whether such Loans or the Loans comprising such Borrowing, are Revolving Loans, Term
B Loans, Term B-1 Loans, Term A Loans, or Incremental Loans established
pursuant to any Incremental Assumption Agreement, Extended Term Loans or Extended Revolving Loans established pursuant to any Extension
Amendment or other Refinancing Term Loans or Replacement Revolving
Loans established pursuant to any Refinancing Amendment or (b) when used in reference to any Commitments, refers to whether such
Commitment is in respect of a commitment to make Revolving Loans, Term B Loans, Term
B-1 Loans, Term A Loans, or Incremental Loans established pursuant to any Incremental Assumption Agreement, Extended Term Loans
or Extended Revolving Loans established pursuant to any Extension Amendment or other
Refinancing Term Loans or Replacement Revolving Loans established pursuant to any Refinancing Amendment.
“Closing Date” means December 1,
2021.
“CME Term SOFR Administrator”
means CME Group Benchmark Administration Limited as administrator of SOFR (or a successor administrator).
“Code” means the Internal Revenue
Code of 1986, as amended from time to time.
“Co-Documentation Agents” means,
in connection with the Revolving Facility and the Term A Facility, Citigroup Global Markets Inc., Goldman Sachs Bank USA, PNC Capital
Markets LLC, and Société Générale.
“Collateral” has the meaning
assigned to such term or a similar term in each of the Collateral Documents and shall include all property pledged or granted (or purported
to be pledged or granted) as collateral pursuant to the Collateral Documents on the Closing Date or thereafter pursuant to Section 5.09
or 5.10.
“Collateral Agent” means JPMorgan
Chase Bank, N.A. in its capacity as collateral agent under the Guarantee Agreement and the Collateral Documents and the other Loan Documents
for the Secured Parties.
“Collateral and Guarantee Requirement”
shall mean the requirement that:
(a) on
the Closing Date, the Collateral Agent shall have received from the Borrower and each Subsidiary Guarantor a counterpart of the Security
Agreement and from each Subsidiary Guarantor, a counterpart of the Guarantee Agreement, in each case, duly executed and delivered on
behalf of such Person;
(b) on
the Closing Date, (i)(x) all outstanding Equity Interests directly owned by the Loan Parties as of the Closing Date, other than
Excluded Securities, and (y) all Indebtedness owing to any Loan Party, other than Excluded Securities, shall have been pledged or
assigned for security purposes pursuant to the Collateral Documents and (ii) the Collateral Agent shall have received certificates,
and any notes or other instruments required to be delivered pursuant to the applicable Collateral Documents, together with stock powers,
note powers or other instruments of transfer with respect thereto (as applicable) endorsed in blank;
(c) in
the case of any person that becomes a Subsidiary Guarantor after the Closing Date, the Collateral Agent shall have received (i) a
supplement to the Guarantee Agreement and (ii) supplements to the Security Agreement and any other Collateral Documents, if applicable,
in the form specified therefor or otherwise reasonably acceptable to the Administrative Agent, in each case, duly executed and delivered
on behalf of such Subsidiary Guarantor;
(d) after
the Closing Date (x) all outstanding Equity Interests of any person that becomes a Subsidiary Guarantor after the Closing Date and
that are held by a Loan Party and (y) all Equity Interests directly acquired by a Loan Party after the Closing Date, in each case
other than Excluded Securities, shall have been pledged pursuant to the Collateral Documents and, subject to the last paragraph of this
definition of “Collateral and Guarantee Requirement”, the Collateral Agent shall have received the certificates (if any)
representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto (as applicable)
endorsed in blank;
(e) except
as otherwise contemplated by this Agreement or any Collateral Document, all documents and instruments, including Uniform Commercial Code
financing statements, and filings with the United States Copyright Office and the United States Patent and Trademark Office, and all
other actions reasonably requested by the Collateral Agent (including those required by applicable Requirements of Law) to be delivered,
filed, registered or recorded to create the Liens intended to be created by the Collateral Documents (in each case, including any supplements
thereto) and perfect such Liens to the extent required by the Collateral Documents, shall have been delivered, filed, registered or recorded
or delivered to the Collateral Agent for filing, registration or the recording substantially concurrently with, or promptly following,
the execution and delivery of each such Collateral Document;
(f) evidence
of the insurance (if any) required by the terms of Section 5.05 hereof shall have been received by the Collateral Agent; and
(g) after
the Closing Date, the Collateral Agent shall have received (i) such other Collateral Documents as may be required to be delivered
pursuant to Section 5.09 or Section 5.10 or the Collateral Documents, and (ii) upon reasonable request by
the Collateral Agent, evidence of compliance with any other requirements of Section 5.09 or Section 5.10.
Notwithstanding anything to the contrary in this
Agreement or in the other Loan Documents, it is understood that to the extent any Collateral (other than Collateral with respect to which
a Lien may be perfected by (A) the filing of a Uniform Commercial Code financing statement, (B) delivery and taking possession
of stock certificates of the Target and the respective subsidiaries of the Borrower and the Target, in each case, subject to Section 5.12
or (C) the filing of a short-form security agreement with the United States Patent and Trademark Office or the United States Copyright
Office) is not or cannot be provided or the security interest of the Collateral Agent therein is not or cannot be perfected on the Closing
Date after the use of commercially reasonable efforts by the Borrower to do so and without undue burden and expense, then the provision
and/or perfection of the security interest in such Collateral shall not constitute a condition precedent to any Credit Event on the Closing
Date but, instead, shall be required to be delivered and perfected within 90 days after the Closing Date (subject to extension by the
Administrative Agent in its reasonable discretion).
“Collateral Documents” means
the Security Agreement and each other security document, pledge agreement or collateral agreement executed and delivered in connection
with this Agreement and/or the other Loan Documents to grant a security interest in any property as Collateral to secure the Obligations.
“Co-Managers”
means, in connection with the Term B-1 Facility, Bank
of MontrealBMO Capital Markets Corp., Citizens Bank,
and HSBC Bank USA, National Association,
and Mizuho Securities USA LLC.
“Commitment” means, with respect
to each Lender (to the extent applicable), such Lender’s Incremental Commitment, Revolving Commitment, Term Loan Commitment or
Extended Revolving Commitment, as applicable.
“Commitment Fee Rate” means
(a) prior to the first Adjustment Date occurring after the Closing Date, 0.35% and (b) on and after the first Adjustment Date
occurring after the Closing Date, a rate determined in accordance with the Pricing Grid.
“Commodity Exchange Act” means
the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Consolidated Amortization Expense”
for any Test Period means the amortization expense of the Borrower and its Restricted Subsidiaries for such Test Period, determined on
a consolidated basis in accordance with GAAP.
“Consolidated
Cash Interest Expense” means the Consolidated Interest Expense paid in cash (net of net income from interest received in cash)
for the relevant Test Period; provided that Consolidated Cash Interest Expense for the relevant Test Period shall in no event be less
than one (1).
“Consolidated Contingent Consideration
Fair Value Remeasurement Adjustments” for any period means the contingent consideration fair value remeasurement adjustments,
of the Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
“Consolidated Depreciation Expense”
for any Test Period means the depreciation expense of the Borrower and its Restricted Subsidiaries for such Test Period, determined on
a consolidated basis in accordance with GAAP.
“Consolidated EBITDA” for any
Test Period means, without duplication, the sum of the amounts for such Test Period of:
(1) Consolidated
Net Income, plus
(2) in
each case only to the extent (and in the same proportion) deducted in determining Consolidated Net Income (other than clause (m) below),
(a) Consolidated
Income Tax Expense,
(b) Consolidated
Amortization Expense,
(c) Consolidated
Depreciation Expense,
(d) Consolidated
Interest Expense,
(e) all
non-cash compensation, as reported in the Borrower’s financial statements,
(f) any
non-cash charges or losses or realized losses related to the write-offs, write-downs or mark-to-market adjustments or sales or exchanges
of any investments in debt or equity securities by the Borrower or any Restricted Subsidiary,
(g) the
aggregate amount of all other non-cash charges, expenses or losses reducing such Consolidated Net Income, including any impairment (including
any impairment of intangibles and goodwill), and non-cash compensation charges or expenses recorded from grants of stock appreciation
or similar rights, stock options, restricted stock or other rights (excluding any non-cash charge, expense or loss that results in an
accrual of a reserve for cash charges in any future period and any non-cash charge, expense or loss relating to write-offs, write downs
or reserves with respect to accounts receivable or inventory), for such Test Period,
(h) the
amount of any restructuring charges or reserves, including any one-time costs incurred in connection with acquisitions or divestitures,
accrual or reserve, integration cost or other business optimization expense, including any restructuring costs incurred in connection
with the Transactions, acquisitions, mergers or consolidations after the Closing Date and any other restructuring expenses, severance
expenses, one-time compensation charges, post-retirement employee benefits plans, any expenses relating to reconstruction, decommissioning
or recommissioning fixed assets for alternate use, expenses or charges relating to facility closing costs, acquisition integration costs
and signing, retention or completion bonuses or expenses,
(i) notwithstanding
any classification under GAAP as discontinued operations of any Person, property, business or asset in respect of which a definitive
agreement for the sale, transfer or other disposition thereof has been entered into, the earnings and income (or loss) attributable to
any such Person, business, assets or operations for any period until such sale, transfer or other disposition shall have been consummated,
(j)
any fees, premiums, expenses or charges related to (x) the Transactions, (y) any actual, proposed or contemplated
equity offering, Investment permitted by Section 6.11, acquisition, Disposition, recapitalization, the incurrence or repayment
of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) or (z) any amendments, consents, waivers
or other modifications relating to the Facilities or any other Indebtedness (whether or not consummated or successful),
(k) the
amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in
any non-Wholly Owned Subsidiary,
(l)
any costs or expenses incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan
or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement,
to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds
of an issuance of Equity Interest of the Borrower (other than Disqualified Stock),
(m) other
add backs and adjustments, at the election of the Borrower, reflected in a quality of earnings report provided by a “big
four” accounting firm or a nationally recognized accounting firm (or any other accounting firm reasonably acceptable to the
Administrative Agent) with respect to any Permitted Acquisition or other Investment
(including, for the avoidance of doubt, add backs and adjustments of the same type in future periods),
(n) any
costs, fees, charges, losses or expenses in connection with any pension scheme of the Target and its Subsidiaries, which such pension
scheme is in existence as of the Closing Date,
(o) losses
or discounts on sales of Securitization Assets in connection with any Permitted Securitizations, minus
(3) in
each case only to the extent (and in the same proportion) included in determining Consolidated Net Income, any non-cash or realized gains
related to mark-to-market adjustments or sales or exchanges of any investments in debt or equity securities by the Borrower or any Restricted
Subsidiary, in each case determined on a consolidated basis in accordance with GAAP; provided that the aggregate amount of all
non-cash items, determined on a consolidated basis, to the extent such items increased Consolidated Net Income for such period will be
excluded from Consolidated Net Income.
For purposes of this definition, whenever pro
forma effect is to be given, the pro forma calculations shall be factually supportable, reasonably identifiable and made in good faith
by a Financial Officer. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination
of the Borrower as set forth in an Officer’s Certificate, to reflect (i) “run rate” cost savings, cost synergies,
operating expense reductions, restructurings, cost savings initiatives, or other initiatives occurring (or expected to result from actions
that have been taken or initiated or expected to be taken) (x) in the case of any
actions that have been taken or initiated or are expected to be taken (x) in
connection with the Transactions, within 36 months of the Closing Date, or (y) in the case of any
other actionsotherwise, within 24 months from the
applicable event to be given pro forma effect (in each case in the reasonable good faith determination of the Borrower and calculated
on a pro forma basis as though such cost savings, cost synergies, operating expense reductions, restructurings, cost savings initiatives,
or other initiatives had been realized on the first day of such Test Period and as if such cost savings, cost synergies, operating expense
reductions, restructurings, cost savings initiatives, or other initiatives were realized in full during the entirety of such Test Period);
provided that the aggregate amount of all adjustments to Consolidated EBITDA pursuant to this clause (i) and clause (A)(2) of
the definitions of “Consolidated Net Leverage Ratio”, “First Lien Net Leverage Ratio” or “Secured Net Leverage
Ratio”, as applicable, shall not exceed 25.0% of Consolidated EBITDA (after giving effect to such adjustment) for any Test Period,
and (ii) the amount of any loss or pre-opening expenses attributable to a New Project, until the date that is 12 months after the
date of completing the construction, acquisition, assembling or creation of such New Project, as the case may be; provided that
(a) such losses or pre-opening expenses are reasonably identifiable and factually supportable, (b) losses or preopening expenses
attributable to such New Project after 12 months from the date of completing such construction, acquisition, assembling or creation,
as the case may be, shall not be included in this clause (ii) and (c) the aggregate amount of all adjustments to Consolidated
EBITDA pursuant to this clause (ii) and clause (A)(3) of the definitions of “Consolidated Net Leverage Ratio”,
“First Lien Net Leverage Ratio” or “Secured Net Leverage Ratio”, as applicable, shall not exceed $20,000,000
in any Test Period.
“Consolidated Income Tax Expense”
for any Test Period means the provision for taxes of the Borrower and its Restricted Subsidiaries for such Test Period, determined on
a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense”
for any Test Period means the sum, without duplication, of the total interest expense of the Borrower and its Restricted Subsidiaries
for such Test Period, determined on a consolidated basis in accordance with GAAP, minus consolidated interest income of the Borrower
and its Restricted Subsidiaries, and including, without duplication,
(1) imputed
interest on Capital Lease Obligations,
(2) commissions,
discounts and other fees and charges owed with respect to letters of credit securing financial obligations, bankers’ acceptance
financing and receivables financings (other than any Permitted Securitization),
(3) the
net costs associated with Hedging Obligations related to interest rates,
(4) amortization
of debt issuance costs, debt discount or premium and other financing fees and expenses,
(5) the
interest portion of any deferred payment obligations,
(6) all
other non-cash interest expense,
(7) capitalized
interest,
(8) all
dividend payments on any series of Disqualified Equity Interests of the Borrower or any Preferred Stock of any Restricted Subsidiary
(other than any such Disqualified Equity Interests or any Preferred Stock held by the Borrower or a Restricted Subsidiary of the Borrower
that is a Wholly Owned Subsidiary or to the extent paid in Qualified Equity Interests),
(9) all
interest payable with respect to discontinued operations, and
(10) all
interest on any Indebtedness described in clause (6) or (7) of the definition of “Indebtedness.”
“Consolidated Net Income” for
any Test Period means the net income (or loss) of the Borrower and the Restricted Subsidiaries for such Test Period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein),
without duplication:
(1) the
net income (or loss) of any Person that is not a Restricted Subsidiary, except to the extent that cash in an amount equal to any such
income has actually been received by the Borrower or any Restricted Subsidiary during such period;
(2) gains
and losses due solely to fluctuations in currency values and the related tax effects according to GAAP;
(3) gains
and losses with respect to Hedging Obligations;
(4) the
cumulative effect of any change in accounting principles;
(5) any
extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss), together with any related provision for taxes on any such
extraordinary or nonrecurring gain (or the tax effect of any such extraordinary or nonrecurring loss), realized by the Borrower or any
Restricted Subsidiary during such period (including fees and expenses relating to (i) the Transactions, (ii) severance, relocation
and transition costs and (iii) any rebranding or corporate name change);
(6) Consolidated
Contingent Consideration Fair Value Remeasurement Adjustments;
(7) any
net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations;
(8) any
gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized during
such period by the Borrower or any Restricted Subsidiary upon (a) the acquisition of any securities, or the extinguishment of any
Indebtedness or Hedging Obligations or other derivative instruments, of the Borrower or any Restricted Subsidiary or (b) the sale
of any financial or equity investment by the Borrower or any Restricted Subsidiary;
(9) any
after-tax effect of gains (or losses) (less all fees and expenses relating thereto) attributable to asset Dispositions other than
in the ordinary course of business, as determined in good faith by the Borrower, shall be excluded;
(10) any
impairment charge or asset write-off or write-down, including impairment charges, write-offs or write-downs related to goodwill, intangible
assets, long-lived assets, investments in debt and equity securities, in accordance with GAAP or as a result of a change in law or regulation,
and the amortization of intangibles arising pursuant to GAAP shall be excluded;
(11) any
non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar
rights, employee benefit plans or agreements, stock options, restricted stock or other rights, and any non-cash deemed finance charges
or expenses or gains in respect of any pension liabilities or non-cash gains or losses of any pension assets or other retiree provisions
or on the revaluation of any benefit plan obligation and any non-cash charges or expenses or gains in respect of curtailments, discontinuations
or modifications to pension plans shall be excluded;
(12) accruals
and reserves for liabilities or expenses that are established or adjusted as a result of the Transactions, calculated in accordance with
GAAP, within 12 months after the Closing Date shall be excluded;
(13) losses,
charges and expenses that are covered by indemnification or other reimbursement provisions in connection with any Investment, acquisition,
sale, conveyance, transfer or other Disposition of assets will be excluded to the extent actually reimbursed, or, so long as such Person
has made a determination that a reasonable basis exists for indemnification or reimbursement, but only to the extent that such amount
is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any
amount so added back to the extent not so indemnified or reimbursed within such 365 days) shall be excluded;
(14) losses,
charges and expenses with respect to liability or casualty events or business interruption, to the extent covered by insurance and actually
reimbursed, or, so long as such Person has made a determination that a reasonable basis exists for reimbursement by the insurer and such
amount (A) is not denied by the applicable carrier in writing and (B) is in fact reimbursed within 365 days of the date on
which such liability was discovered or such casualty event or business interruption occurred (with a deduction in the applicable future
period for any amount so added back to the extent not so reimbursed within 365 days) shall be excluded;
(15) the
effects of purchase accounting, fair value accounting or recapitalization accounting adjustments (including the effects of such adjustments
pushed down to such Person and its Restricted Subsidiaries) resulting from the application of purchase accounting, fair value accounting
or recapitalization accounting in relation to the Transactions or any acquisition consummated before or after the Closing Date, and the
amortization, write-down or write-off of any amounts thereof, shall be excluded;
(16) all
non-cash gains, losses, expenses or charges attributable to the movement in the mark-to-market valuation of Hedging Obligations or other
derivative instruments shall be excluded; and
(17) any
deferred tax expense associated with tax deductions or net operating losses as a result of the Transactions, or the release of any valuation
allowance related to such item shall be excluded.
provided,
further, that the effects of any adjustments in the inventory, property and equipment, software, goodwill, other intangible assets,
in-process research and development, deferred revenue, debt line items, any earn-out obligations and any other non-cash charges (other
than the amortization of unfavorable operating leases) in the Borrower’s consolidated financial statements pursuant to GAAP in
each case resulting from the application of purchase accounting in relation to any consummated acquisition or the amortization or write-off
of any such amounts shall be excluded when determining Consolidated Net Income.
“Consolidated Net Leverage Ratio”
means, as of any date of determination, the ratio of (a) Indebtedness of the Borrower and its Restricted Subsidiaries (other
than any Securitization Subsidiary) as of the last day of the Test Period most recently ended on or prior to such date of determination
(as set forth on the balance sheet and determined on a consolidated basis in accordance with GAAP) minus the amount of unrestricted
cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries (other
than any Securitization Subsidiary) on such date in an amount not to exceed $250,000,000 to (b) Consolidated EBITDA for such
Test Period.
(A) The Consolidated Net Leverage Ratio
shall be calculated for any period after giving effect on a pro forma basis (as if they had occurred on the first day of the applicable
Test Period) to:
(1) the
incurrence of any Indebtedness of the Borrower or any Restricted Subsidiary (other
than any Securitization Subsidiary) (and the application of the proceeds thereof) and any repayment, repurchase, defeasance or
other discharge of Indebtedness (and the application of the proceeds therefrom) (other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant to any revolving credit arrangement) occurring during the applicable
Test Period or (except when calculating the Consolidated Net Leverage Ratio for purposes of determining the Applicable Rate or Commitment
Fee Rate, or determining actual compliance (and not pro forma compliance or compliance on a pro forma basis) with Section 6.10)
at any time subsequent to the last day of such Test Period and on or prior to the date of determination, as if such incurrence, repayment,
issuance or redemption, as the case may be (and the application of the proceeds thereof and
all transactions and events in connection therewith), occurred on the first day of the Test Period;
(2) any
(wv) Asset Sale,
(xw) asset sale
if the Fair Market Value of the assets sold in such transaction or series of related transactions exceeds $2,000,000, which is solely
excluded from the definition of Asset Sale pursuant to clause (7) of such definition, (yx)
Asset Acquisition, (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of the Borrower or any Restricted Subsidiary
(including any Person who becomes a Restricted Subsidiary as a result of such Asset Acquisition or as a result of ay)
operational changes or restructurings or (z) Designation or Revocation)) incurring Indebtedness
pursuant to Section 6.01(j) and also including any Consolidated EBITDA associated,
in each case including all transactions and events in connection with any such
Asset Acquisition) or (z) operational restructuringevent
(each a “pro forma event”) occurring during the Test Period or (except when calculating the Consolidated Net
Leverage Ratio for purposes of determining the Applicable Rate or Commitment Fee Rate, or determining actual compliance (and not pro
forma compliance or compliance on a pro forma basis) with Section 6.10) at any time subsequent to the last day of the Test Period
and on or prior to the date of determination as if such pro forma event occurred on the first day of the Test Period, including any cost
savings and cost synergies resulting from head count reduction, closure of facilities and similar operational and other cost savings,
cost synergies, operating expense reductions, restructurings, cost savings initiatives or other initiatives relating to such pro forma
event occurring (or expected, in the good faith determination of the Borrower, to result from actions that have been taken or initiated
or expected to be taken) (x) in the case of any actions that have been taken or
initiated or are expected to be taken (x) in connection with
the Transactions, within 36 months of the Closing Date, or (y) otherwise,
within 24 months of such pro forma event and during such period or (except when calculating the Consolidated Net Leverage Ratio
for purposes of determining the Applicable Rate or Commitment Fee Rate, or determining actual compliance (and not pro forma compliance
or compliance on a pro forma basis) with Section 6.10) subsequent to such period and on or prior to the date of such calculation,
in each case that are expected to have a continuing impact and are factually supportable, and which adjustments the Borrower determines
are reasonable as set forth in an Officer’s Certificate; provided that the aggregate amount of all such cost savings and
cost synergies pursuant to this clause (A)(2) and clause (i) of the second paragraph of the definition of “Consolidated
EBITDA” shall in no event exceed 25.0% of Consolidated EBITDA (after giving effect to such adjustment) for any Test Period; provided,
further, that asset sales described in clause (A)(2)(x) in an aggregate amount not to exceed $80,000,000 in any Test Period
shall not be required to be given pro forma effect; and
(3) the
amount of any loss or pre-opening expenses attributable to a New Project, until the date that is 12 months after the date of completing
the construction, acquisition, assembling or creation of such New Project, as the case may be; provided that (i) such losses
or pre-opening expenses are reasonably identifiable and factually supportable, (ii) losses or preopening expenses attributable to
such New Project after 12 months from the date of completing such construction, acquisition, assembling or creation, as the case may
be, shall not be included in this clause (3) and (iii) the aggregate amount of all adjustments pursuant to this clause (3) and
clause (ii) of the second paragraph of the definition of “Consolidated EBITDA” shall not exceed $20,000,000 in any Test
Period; and
(B) in
calculating Consolidated Interest Expense for purposes of the Consolidated Net Leverage Ratio with respect to any Indebtedness being
given pro forma effect:
(1) interest
on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on
the date of determination;
(2) if
interest on any Indebtedness actually incurred on the date of determination 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 rates, then the interest rate in effect on the date
of determination will be deemed to have been in effect during the Test Period;
(3) notwithstanding
clause (1) or (2) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered
by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation
of the agreements governing such Hedging Obligations;
(4) interest
on any Indebtedness under a revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during
the Test Period; and
(5) interest
on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting
Officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
“Consolidated Working Capital”
means, with respect to the Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, Current Assets
at such date of determination minus Current Liabilities at such date of determination; provided that increases or decreases in
Consolidated Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of
(a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b) the
effects of purchase accounting.
“Contract Consideration” has
the meaning assigned to such term in the definition of “Excess Cash Flow.”
“Contractual Obligation” means,
as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its property is bound.
“Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlled” has the meaning correlative thereto.
“Corresponding Tenor” with
respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately
the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any
of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning
assigned to it in Section 9.20.
“Current Assets” means, with
respect to the Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, all assets (other than
cash, Cash Equivalents or other cash equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet
of the Borrower and its Restricted Subsidiaries as current assets at such date of determination, other than amounts related to current
or deferred taxes based on income or profits.
“Current Deed of Guarantee”
means the amended and restated deed of guarantee made on March 15, 2018 between Meredith Corporation, IPC Media Pension Trustee
Limited and International Publishing Corporation Limited relating to the UK Scheme.
“Current Liabilities” means,
with respect to the Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, all liabilities that
would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as current
liabilities at such date of determination, other than (a) the current portion of any Indebtedness, (b) accruals of Consolidated
Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (c) accruals for current or deferred taxes based
on income or profits, (d) accruals, if any, of transaction costs resulting from the Transactions, (e) accruals of any costs
or expenses related to (i) severance or termination of employees prior to the Closing Date or (ii) bonuses, pension and other
post-retirement benefit obligations, and (f) accruals for exclusions from Consolidated Net Income included in clause (5) of
the definition of such term.
“Customary Term A Facility”
means any term facility in the form of customary term A loans that (i) average amortization of greater than 1% per annum and no
more than 10% per annum (after giving effect to any grace period or initial period) and (ii) are primarily syndicated to regulated
banks in the primary syndication thereof (in each case, as reasonably determined by the Borrower in good faith).
“Daily Simple RFR” means, for
any day (an “RFR Interest Day”), an interest rate per annum equal to , for any RFR Loan denominated in (i) Sterling,
SONIA for the day that is 5 RFR Business Days prior to (A) if such RFR Interest Day is an RFR Business Day, such RFR Interest Day
or (B) if such RFR Interest Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Interest Day and
(ii) Dollars, Daily Simple SOFR.
“Daily Simple SOFR” means,
for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination
Date”) that is five (5) RFR Business Days prior to (i) if such SOFR Rate Day is an RFR Business Day, such SOFR Rate
Day or (ii) if such SOFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such SOFR Rate Day, in
each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple
SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Declined Prepayment Amount”
has the meaning assigned to such term in Section 2.08(f).
“Declining Term Lender” has
the meaning assigned to such term in Section 2.08(f).
“Default” means any event or
condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an
Event of Default.
“Default Right” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any
Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of
its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Agent Party any amount
required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent and
the Borrower in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to
such funding or payment has not been satisfied, or, in the case of clause (ii) or clause (iii) above, such Lender notifies
the Administrative Agent in writing that such failure is the result of a good faith dispute regarding its obligation to make such funding
or payment; (b) has notified the Borrower or any Agent Party in writing, or has made a public statement to the effect, that it does
not intend to comply with any of its funding or payment obligations under this Agreement (unless such writing or public statement indicates
that such position is based on such Lender’s good faith determination that a condition precedent to such funding or payment under
this Agreement cannot be satisfied); (c) has failed, within three Business Days after request by the Administrative Agent or Issuing
Bank, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with
its obligations under this Agreement; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon such Agent Party’s receipt of such certification; (d) has become the subject of a Bankruptcy Event; or (e) has
become the subject of a Bail-In Action.
“Designated Noncash Consideration”
means the Fair Market Value of noncash consideration received by the Borrower or a Restricted Subsidiary in connection with an Asset
Sale that is so designated as Designated Noncash Consideration pursuant to an Officer’s Certificate, setting forth the basis of
such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Noncash
Consideration.
“Designation” has the meaning
assigned to such term in the definition of “Unrestricted Subsidiary.”
“Designation Amount” has the
meaning assigned to such term in the definition of “Unrestricted Subsidiary.”
“Disposition” means, with respect
to any property, any sale, lease, license, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms
“Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Equity Interests”
of any Person means any class of Equity Interests of such Person that, by its terms, or by the terms of any related agreement or of any
security into which it is convertible, puttable or exchangeable, is, or upon the happening of any event or the passage of time would
be, required to be redeemed by such Person, whether or not at the option of the holder thereof, or matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, in whole or in part, in each case on or prior to the date that is 91 days after the
Latest Maturity Date; provided, however, that any class of Equity Interests of such Person that, by its terms, authorizes
such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking
fund or otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests that are not Disqualified Equity Interests,
and that is not convertible, puttable or exchangeable for Disqualified Equity Interests or Indebtedness, will not be deemed to be Disqualified
Equity Interests so long as such Person satisfies its obligations with respect thereto solely by the delivery of Equity Interests that
are not Disqualified Equity Interests; provided, further, however, that any Equity Interests that would not constitute
Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such
Equity Interests are convertible, exchangeable or exercisable) the right to require the Borrower to redeem such Equity Interests upon
the occurrence of a change of control occurring prior to the 91st day after the Latest Maturity Date shall not constitute
Disqualified Equity Interests if such Equity Interests specifically provide that the Borrower will not redeem any such Equity Interests
pursuant to such provisions prior to the Obligations (other than (x) (i) Cash Management Obligations and (ii) Obligations
under Specified Swap Agreements not yet due and payable, and (y) contingent obligations not yet accrued and payable) having been
paid in full, all Letters of Credit having been cash collateralized or otherwise back-stopped or having been terminated, and the Total
Revolving Commitments having been terminated.
“Dollar Amount” means, at any
date, (a) with respect to any amount denominated in Dollars, such amount and (b) with respect to any amount denominated in
amount other than Dollars, such amount converted to Dollars by the Administrative Agent at the Exchange Rate on such date.
“Dollars” or “$”
refers to lawful money of the United States of America.
“Domestic Subsidiary” means
any Restricted Subsidiary of the Borrower that is not a Foreign Subsidiary.
“Dotdash” has the meaning assigned
to such term in the recitals to this Agreement.
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means
any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature” means
an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the
intent to sign, authenticate or accept such contract or record.
“EMU” means the economic and
monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992
and the Amsterdam Treaty of 1998.
“EMU Legislation” means the
legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Law” means all
laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated
or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources,
the management, release or threatened release of any Hazardous Material.
“Environmental Liability” means
any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment
or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
“Equity Interests” means, of
any Person, (1) any and all shares or other equity interests (including common stock, preferred stock, limited liability company
interests and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently
exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such Person,
but excluding any debt securities convertible into such shares or other interests.
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any
trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or
(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.
“ERISA Event” means (a) any
“reportable event” (as defined in Section 4043(c) of ERISA or the regulations issued thereunder) with respect to
a Plan other than an event for which the 30-day notice period is waived; (b) any failure by any Plan to satisfy the minimum funding
standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not
waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for
a waiver of the minimum funding standard with respect to any Plan; (d) the failure to make by its due date a required installment
under Section 430(j) of the Code with respect to any Plan or the failure by the Borrower or any of its ERISA Affiliates to
make any required contribution to a Multiemployer Plan; (e) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan, including the imposition of any Lien in favor of the PBGC
or any Plan; (f) a determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of
Section 430 of the Code or Title IV of ERISA); (g) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan; (h) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from
any Plan (or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA) or Multiemployer
Plan; or (i) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, Insolvent, in Reorganization or in endangered or critical status, within the meaning of Section 432
of the Code or Section 305 of ERISA.
“EU Bail-In Legislation Schedule”
means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time
to time.
“Euro” means the lawful currency
of the Participating Member States introduced in accordance with EMU Legislation.
“EURIBOR Rate” means, with
respect to any Term Benchmark Borrowing denominated in Euros and for any applicable Interest Period, the EURIBOR Screen Rate, two TARGET
Days prior to the commencement of such Interest Period; provided that, if the EURIBOR Screen Rate shall not be available at such time
for such Interest Period (an “Impacted EURIBOR Rate Interest Period”) with respect to Euros then the EURIBOR Rate
shall be the EURIBOR Interpolated Rate.
“EURIBOR Interpolated Rate”
means, at any time, with respect to any Term Benchmark Borrowing denominated in Euros and for any Interest Period, the rate per annum
determined by the Administrative Agent (which determination shall be in its reasonable discretion) to be equal to the rate that results
from interpolating on a linear basis between: (a) the EURIBOR Screen Rate for the longest period (for which the EURIBOR Screen Rate
is available for Euros) that is shorter than the Impacted EURIBOR Rate Interest Period; and (b) the EURIBOR Screen Rate for the
shortest period (for which the EURIBOR Screen Rate is available for Euros) that exceeds the Impacted EURIBOR Rate Interest Period, in
each case, at such time.
“EURIBOR Screen Rate” means,
for any day and time with respect to any Term Benchmark Borrowing for any Interest Period, the euro interbank offered rate administered
by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period
displayed (before any correction, recalculation or republication by the administrator) as the rate at which interbank deposits in Euro
are being offered by one prime bank to another within the EMU zone for such Interest Period, as set forth on page EURIBOR01 of the
Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such
other information service which publishes that rate from time to time in place of Thomson Reuters as published at approximately 11:00
a.m. Brussels time two TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to be
available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the
Borrower.
“Events of Default” has the
meaning assigned to such term in Section 7.01.
“Excess Cash Flow” means, for
any period, an amount equal to the excess of:
(a) the
sum, without duplication (including with respect to any amounts deducted when calculating the Excess Cash Flow prepayment amount pursuant
to Section 2.08(d)), 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 and cash receipts
included in clauses (5), (7) and (8) of the definition of Consolidated Net Income and excluded in arriving at such Consolidated
Net Income,
(iii) decreases
in Consolidated Working Capital for such period (other than any such decreases arising from dispositions outside the ordinary course
of business by the Borrower and its Restricted Subsidiaries completed during such period),
(iv) cash
receipts by the Borrower and its Restricted Subsidiaries in respect of Hedging Obligations during such fiscal year to the extent not
otherwise included in such Consolidated Net Income; and
(v) the
amount by which tax expense deducted in determining such Consolidated Net Income for such period exceeded taxes (including penalties
and interest) paid in cash or tax reserves set aside or payable (without duplication) by the Borrower and its Restricted Subsidiaries
in such period,
over
(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 and cash charges included in
clauses (5), (7) and (8) of the definition of Consolidated Net Income and included in arriving at such Consolidated Net Income,
(ii) the
aggregate amount of all principal payments of Indebtedness of the Borrower and its Restricted Subsidiaries (including (A) the principal
component of payments in respect of Capital Lease Obligations and (B) the amount of any scheduled repayment of Term Loans, but excluding
(x) all prepayments of Term Loans, Other First Lien Debt and Junior Debt, (y) all prepayments of Revolving Loans and (z) all
prepayments in respect of any revolving credit facility, except in the case of clauses (x), (y) and (z) to the extent there
is an equivalent permanent reduction in commitments thereunder), except to the extent financed with the proceeds of other Indebtedness
(other than under the Revolving Facility) of the Borrower or its Restricted Subsidiaries,
(iii) increases
in Consolidated Working Capital for such period (other than any such increases arising from acquisitions by the Borrower and its Restricted
Subsidiaries completed during such period or the application of purchase accounting),
(iv) payments
by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Subsidiaries
other than Indebtedness, to the extent not already deducted from Consolidated Net Income,
(v) the
aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries
during such period that are made in connection with any prepayment of Indebtedness to the extent that such payments are not deducted
in calculating Consolidated Net Income,
(vi) without
duplication of amounts deducted from Excess Cash Flow, 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 relating to Asset Acquisitions or other Investments,
Capital 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; provided that to the extent the aggregate amount of internally generated
cash actually utilized to finance such Asset Acquisition or other Investment,
Capital Expenditures or acquisitions of intellectual property during such period of four consecutive fiscal quarters is less than the
Contract Consideration, 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,
(vii) the
amount of taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such period
to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period; and
(viii) cash
expenditures in respect of Hedging Obligations during such fiscal year to the extent not deducted in arriving at such Consolidated
Net Income;
(ix) without
duplication of amounts deducted pursuant to clause (vi) above in prior years, to the extent not already deducted from Consolidated
Net Income, the amount of Investments, Capital Expenditures or acquisitions of intellectual property made in cash during such period
by the Borrower and its Restricted Subsidiaries, except to the extent that such Investment, Capital Expenditures or acquisition of intellectual
property were financed with the proceeds of Indebtedness of the Borrower or the Restricted Subsidiaries (other than under any revolving
facility or working capital facility);
(x) the
amount of Restricted Payments during such period (on a consolidated basis) by the Borrower and the Restricted Subsidiaries made in compliance
with Section 6.05 (other than Section 6.05(iii), (iv) and (vii)) to the extent such Restricted Payments were financed
with internally generated cash flow of the Borrower and the Restricted Subsidiaries;
(xi) amount
equal to the aggregate net non-cash gain on dispositions by the Borrower and the Restricted Subsidiaries during such period (other than
dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income; and
(xii) 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 and cash restructuring charges but excluding cash expenditures reducing the amount of
Term Loans required to be prepaid pursuant to Section 2.08(d)) to the extent that such expenditures are not expensed during such
period or are not deducted in calculating Consolidated Net Income.
“Excess Cash Flow Period” means
each fiscal year of the Borrower, commencing with the fiscal year of the Borrower ending December 31, 2022.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Exchange Rate” means, on any
day, with respect to Dollars in relation to any Alternative Currency, the rate of exchange for the purchase of Dollars with the Alternative
Currency last provided (either by publication or otherwise provided to the Administrative Agent) by the applicable Thomson Reuters Corp.
(“Reuters”) source on the Business Day (New York City time) immediately preceding the date of determination or if
such service ceases to be available or ceases to provide a rate of exchange for the purchase of Dollars with the Alternative Currency,
as provided by such other publicly available information service which provides that rate of exchange at such time in place of Reuters
reasonably chosen by the Administrative Agent in its sole discretion after consultation with the Borrower (or if such service ceases
to be available or ceases to provide such rate of exchange, the equivalent of such amount in dollars as determined by the Administrative
Agent using any reasonable method of determination it deems appropriate in its sole discretion after consultation with the Borrower).
“Exchanged
Term B Loans” means each Term B Loan extended on the Closing Date (or portion thereof) and held by a Rollover Term B Lender on
the Amendment No. 1 Effective Date immediately prior to the extension of credit hereunder on the Amendment No. 1 Effective
Date and as to which the Rollover Term B Lender thereof has consented to exchange into a Term B-1 Loan and the Administrative Agent has
allocated into a Term B-1 Loan.
“Excluded
Asset Sale Proceeds” shall have the meaning assigned to such term in the definition of the term “Net Proceeds”.
“Excluded
Casualty Proceeds” shall have the meaning assigned to such term in the definition of the term “Net Proceeds”.
“Excluded Indebtedness” means
all Indebtedness not incurred in violation of Section 6.01.
“Excluded
Proceeds” shall mean, collectively, Excluded Asset Sale Proceeds and Excluded Casualty Proceeds.
“Excluded Securities” means
any of the following:
(a) any
Equity Interests or Indebtedness with respect to which the Collateral Agent and the Borrower reasonably agree that the cost or other
consequences of pledging such Equity Interests or Indebtedness in favor of the Secured Parties under the Collateral Documents (including
Tax consequences) are likely to be excessive in relation to the value to be afforded thereby;
(b) any
Equity Interests or Indebtedness to the extent, and for so long as, the pledge thereof is prohibited by any Requirement of Law (in each
case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code
or other applicable law);
(c) any
Equity Interests of any person that is not a Wholly Owned Subsidiary to the extent (A) that a pledge thereof to secure the Obligations
is prohibited by (i) any applicable organizational documents, constitutional documents, joint venture agreement, shareholder agreement,
or similar agreement or (ii) any other contractual obligation with an unaffiliated third party not in violation of Section 6.09
that was existing on the Closing Date (and not created in contemplation of the consummation of the Transactions) or at the time of the
acquisition of such subsidiary (and was not created in contemplation of such acquisition), (B) any organizational documents, constitutional
documents, joint venture agreement, shareholder agreement, or similar agreement (or other contractual obligation referred to in subclause
(A)(ii) above) prohibits such a pledge without the consent of any other party; provided that this clause (B) shall not
apply if (1) such other party is a Loan Party or a Wholly Owned Subsidiary or (2) consent has been obtained to consummate such
pledge (it being understood that the foregoing shall not be deemed to obligate the Borrower or any subsidiary to obtain any such consent)
and for so long as such organizational documents, constitutional documents, joint venture agreement, shareholder agreement or similar
agreement (or other contractual obligation referred to in subclause (A)(ii) above) or replacement or renewal thereof is in effect,
or (C) a pledge thereof to secure the Obligations would give any other party (other than a Loan Party or a Wholly Owned Subsidiary)
to any organizational documents, constitutional documents, joint venture agreement, shareholder agreement or similar agreement governing
such Equity Interests the right to terminate its obligations thereunder, in each case, after giving effect to the anti-assignment provisions
of the Uniform Commercial Code or other applicable law;
(d) any
Equity Interests of (i) any Unrestricted Subsidiary, (ii) any subsidiary that is not a Material Subsidiary and,
(iii) any Pension Entity, and (iv) any Securitization Subsidiary;
(e) any
Margin Stock; and
(f) voting
Equity Interests (and any other interests constituting “stock entitled to vote” within the meaning of U.S. Treasury Regulation
Section 1.956-2(c)(2)) in excess of 65% of all voting Equity Interests in (A) any Foreign Subsidiary or (B) any FSHCO.
“Excluded Subsidiary” means
(a) any subsidiary that is not a Wholly Owned Subsidiary, (b) any subsidiary that is prohibited by applicable law or by Contractual
Obligations existing on the Closing Date (or, in the case of any newly acquired subsidiary, in existence at the time of acquisition but
not entered into in contemplation thereof) from guaranteeing the Obligations or if guaranteeing the Obligations would require governmental
(including regulatory) consent, approval, license or authorization, (c) any subsidiary that is not a Material Domestic Subsidiary,
(d) any Unrestricted Subsidiary, (e) any FSHCO, (f) any Domestic Subsidiary that is a subsidiary of a Foreign Subsidiary
that is a CFC and,
(g) any subsidiary that is either (i) established for the purposes of, or has established, or sponsors or contributes to a
defined benefit pension scheme, or any direct or indirect subsidiary of such a person (including, for the avoidance of doubt, International
Publishing Corporation Limited, a company incorporated under the laws of England and Wales registered (under number 00745584)), or (ii) any
subsidiary that is an employee benefit trust or similar construct or is a trust company (in each case, such subsidiary, a “Pension
Entity”); provided, in each case of clauses (i) and (ii), that such entity and its direct or indirect subsidiaries
have no material business operations or material assets other than in connection with a defined benefit pension scheme,
and (h) any Securitization Subsidiary.
“Excluded Swap Obligation”
means, with respect to any Subsidiary Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of
such Subsidiary Guarantor of, or the grant by such Subsidiary Guarantor of a security interest to secure, such Swap Obligation (or any
Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading
Commission (or the application or official interpretation of any thereof) by virtue of (a) such Subsidiary Guarantor’s failure
for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations
thereunder or (b) in the case of a Swap Obligation subject to a clearing requirement pursuant to Section 2(h) of the Commodity
Exchange Act (or any successor provision thereto), because such Subsidiary Guarantor is a “financial entity,” as defined
in Section 2(h)(7)(C)(i) of the Commodity Exchange Act (or any successor provision thereto), in each case at the time the Guarantee
of such Subsidiary Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise
agreed between the Administrative Agent and the Borrower. If a Swap Obligation arises under a master agreement governing more than one
swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or
security interest is or becomes illegal.
“Excluded Taxes” means (a) in
the case of each Recipient, Taxes imposed on its overall net income, and franchise Taxes imposed on it in lieu of net income Taxes by
a jurisdiction (including any political subdivision thereof) as a result of (i) such Recipient being organized under the laws of
or having a principal office in such jurisdiction or, in the case of a Lender, having an applicable lending office in such jurisdiction
or (ii) any other present or former connection between such Recipient and the jurisdiction (other than any connection arising solely
from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received
or perfected a security interest under, engaged in any other transaction pursuant to and/or enforced any Loan Document); (b) any
Taxes in the nature of branch profits Taxes imposed by any jurisdiction described in clause (a); (c) in the case of a Non-U.S. Lender
(other than an assignee pursuant to a request by the Borrower under Section 2.16), United States federal withholding Tax imposed
pursuant to laws in effect on the date on which (i) such Non-U.S. Lender becomes a Lender or (ii) such Non-U.S. Lender changes
its lending office, except in each case to the extent that, pursuant to Section 2.14, additional amounts with respect to such Taxes
were payable either to such Non-U.S. Lender’s assignor immediately before such Non-U.S. Lender became a party hereto or to such
Non-U.S. Lender immediately before it changed its lending office; (d) any Taxes attributable to such Recipient’s failure to
comply with Section 2.14(e); and (e) any United States federal withholding Taxes imposed under FATCA.
“Existing Letters of Credit”
means each letter of credit set forth on Schedule 2.17.
“Extended Revolving Commitment”
shall have the meaning assigned to such term in Section 2.19(a).
“Extended Revolving Loan” shall
have the meaning assigned to such term in Section 2.19(a).
“Extended Term Loan” shall
have the meaning assigned to such term in Section 2.19(a).
“Extending Lender” shall have
the meaning assigned to such term in Section 2.19(a).
“Extension” shall have the
meaning assigned to such term in Section 2.19(a).
“Extension Amendment” shall
have the meaning assigned to that term in Section 2.19(b).
“Facility” means any of (a) the
Revolving Facility and (b) the Term Facility.
“Fair Market Value” means,
with respect to any asset, as determined by the Borrower, the price (after taking into account any liabilities relating to such assets)
that would be negotiated in an arm’s-length transaction for cash between a willing seller and a willing and able buyer, neither
of which is under any compulsion to complete the transaction.
“FATCA” means Sections 1471
through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and
not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof
and any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described
above) and any intergovernmental agreements implementing the foregoing.
“Federal Funds Effective Rate”
means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions,
as determined in such manner as the NYFRB shall set forth on the NYFRB’s Website from time to time, and published on the
next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if the Federal Funds Effective Rate
as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Financial Covenant Increase Period”
has the meaning assigned to such term in Section 6.10.
“Financial Officer” means the
chief financial officer, principal accounting officer, treasurer, assistant treasurer, or controller or assistant controller of the Borrower.
“First Lien Net Leverage Ratio”
means, as of any date of determination, the ratio of (i) Indebtedness of the Borrower and its Restricted Subsidiaries (other
than any Securitization Subsidiary) secured by a Lien on any assets of the Borrower and its Restricted Subsidiaries (other
than any Securitization Subsidiary) that constitutes Collateral that is pari passu with the Lien thereon securing the Obligations
as of the last day of the Test Period most recently ended on or prior to such date of determination (as set forth on the balance sheet
and determined on a consolidated basis in accordance with GAAP) minus the amount of unrestricted cash and Cash Equivalents of
the Borrower and its Restricted Subsidiaries (other than any Securitization
Subsidiary) on such date in an amount not to exceed $250,000,000 to (ii) Consolidated EBITDA for such Test Period.
(A) The First Lien Net Leverage Ratio shall
be calculated for any period after giving effect on a pro forma basis (as if they had occurred on the first day of the applicable
Test Period) to:
(1) the
incurrence of any Indebtedness of the Borrower or any Restricted Subsidiary (other
than any Securitization Subsidiary) (and the application of the proceeds thereof) and any repayment, repurchase, defeasance or
other discharge of Indebtedness (and the application of the proceeds therefrom) (other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant to any revolving credit arrangement) occurring during the applicable
Test Period or (except when calculating the First Lien Net Leverage Ratio for purposes of determining the Applicable Rate) at any time
subsequent to the last day of such Test Period and on or prior to the date of determination, as if such incurrence, repayment, issuance
or redemption, as the case may be (and the application of the proceeds thereof and
all transactions and events in connection therewith), occurred on the first day of the Test Period;
(2) any
(wv) Asset Sale,
(xw) asset sale
if the Fair Market Value of the assets sold in such transaction or series of related transactions exceeds $2,000,000, which is solely
excluded from the definition of Asset Sale pursuant to clause (7) of such definition, (yx)
Asset Acquisition, (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of the Borrower or any Restricted Subsidiary
(including any Person who becomes a Restricted Subsidiary as a result of such Asset Acquisition or as a result of ay)
operational changes or restructurings or (z) Designation or Revocation)) incurring Indebtedness
pursuant to Section 6.01(j) and also including any Consolidated EBITDA associated,
in each case including all transactions and events in connection with any such
Asset Acquisition) or (z) operational restructuringevent
(each a “pro forma event”) occurring during the Test Period or (except when calculating the First Lien Net
Leverage Ratio for purposes of determining the Applicable Rate) at any time subsequent to the last day of the Test Period and on or prior
to the date of determination as if such pro forma event occurred on the first day of the Test Period, including any cost savings and
cost synergies resulting from head count reduction, closure of facilities and similar operational and other cost savings, cost synergies,
operating expense reductions, restructurings, cost savings initiatives or other initiatives relating to such pro forma event occurring
(or expected, in the good faith determination of the Borrower, to result from actions that have been taken or initiated or expected to
be taken) (x) in the case of any actions that have been taken or initiated or are
expected to be taken (x) in connection with the Transactions,
within 36 months of the Closing Date, or (y) otherwise, within
24 months of such pro forma event and during such period or (except when calculating the First Lien Net Leverage Ratio for purposes of
determining the Applicable Rate) subsequent to such period and on or prior to the date of such calculation, in each case that are expected
to have a continuing impact and are factually supportable, and which adjustments the Borrower determines are reasonable as set forth
in an Officer’s Certificate; provided that the aggregate amount of all such cost savings and cost synergies pursuant to
this clause (A)(2) and clause (i) of the second paragraph of the definition of “Consolidated EBITDA” shall in no
event exceed 25.0% of Consolidated EBITDA (after giving effect to such adjustment) for any Test Period; provided, further,
that asset sales described in clause (A)(2)(x) in an aggregate amount not to exceed $80,000,000 in any Test Period shall not be
required to be given pro forma effect; and
(3) the
amount of any loss or pre-opening expenses attributable to a New Project, until the date that is 12 months after the date of completing
the construction, acquisition, assembling or creation of such New Project, as the case may be; provided that (i) such losses
or pre-opening expenses are reasonably identifiable and factually supportable, (ii) losses or preopening expenses attributable to
such New Project after 12 months from the date of completing such construction, acquisition, assembling or creation, as the case may
be, shall not be included in this clause (3) and (iii) the aggregate amount of all adjustments pursuant to this clause (3) and
clause (ii) of the second paragraph of the definition of “Consolidated EBITDA” shall not exceed $20,000,000 in any Test
Period; and
(B) in
calculating Consolidated Interest Expense for purposes of the First Lien Net Leverage Ratio with respect to any Indebtedness being given
pro forma effect:
(1) interest
on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on
the date of determination;
(2) if
interest on any Indebtedness actually incurred on the date of determination 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 rates, then the interest rate in effect on the date
of determination will be deemed to have been in effect during the Test Period;
(3) notwithstanding
clause (1) or (2) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered
by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation
of the agreements governing such Hedging Obligations;
(4) interest
on any Indebtedness under a revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during
the Test Period; and
(5) interest
on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting
Officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
“Fixed Amounts” has the meaning
assigned to such term in Section 1.07(a).
“Floor” means the benchmark
rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal
of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate, Adjusted EURIBOR Rate, Adjusted TIBOR Rate each Adjusted
Daily Simple RFR or the Central Bank Rate, as applicable. For the avoidance of doubt the initial Floor for each of Adjusted Term SOFR
Rate, Adjusted EURIBOR Rate, Adjusted TIBOR Rate, each Adjusted Daily Simple RFR or the Central Bank Rate shall be (x) in the case
of Term B Loans and Term B-1 Loans 0.50% and (y) in the case
Term A Loans and Revolving Loans, 0%.
“Foreign Subsidiary” means
any Restricted Subsidiary of the Borrower that is organized under the laws of any jurisdiction other than the United States, any State
thereof or the District of Columbia.
“FSHCO” means any subsidiary
of the Borrower that owns no material assets other than Equity Interests of one or more Foreign Subsidiaries that are CFCs or Equity
Interests of one or more other FSHCOs.
“GAAP” means generally accepted
accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting profession of the United States, consistently applied.
“Governmental Authority” means
the government of the United States of America, any other nation or any political subdivision thereof, whether state, local, provincial
or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Group
Members” means, collectively, the Borrower and its Restricted Subsidiaries.
“Guarantee” of or by any Person
(the “guarantor”) means a direct or indirect guarantee by any Person of any Indebtedness of any other Person and includes
any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for
the purchase or payment of) Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements
to keep well, to purchase assets, goods, securities or services (unless such purchase arrangements are on arm’s length terms and
are entered into in the ordinary course of business), to take-or-pay, or to maintain financial statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part); “Guarantee,” when used as a verb, and “Guaranteed”
have correlative meanings.
“Guarantee Agreement” means
the Guarantee Agreement dated as of December 1, 2021 among each Subsidiary Guarantor and JPMorgan Chase Bank, N.A. as the collateral
agent.
“guarantor” has the meaning
assigned to such term in the definition of “Guarantee.”
“Hazardous Materials” means
all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedging Obligations” of any
Person means the obligations of such Person under swap, cap, collar, forward purchase or similar agreements or arrangements dealing with
interest rates, currency exchange rates or commodity prices, either generally or under specific contingencies.
“IAC” means IAC/InterActiveCorp,
a Delaware corporation.
“IAC Debt Facility” shall have
the meaning assigned to such term in Section 6.01(z).
“IAC Group” means IAC and its
subsidiaries (other than the Borrower and its subsidiaries).
“Incremental Amount” means,
at any time, the sum of:
(a) the
excess (if any) of
(i) (I) the
greater of (x) $448,000,000 and (y) 100% of Consolidated EBITDA for the then most recently ended Test Period plus
(II) the Reallocated General Basket Amount, over
(ii) the
aggregate amount of all (x) Incremental Term Loan Commitments
and Incremental Revolving Commitments, in each case, established after the Closing Date and prior to such time and outstanding pursuant
to Section 2.02 and (y) Permitted Secured Ratio Debt and Permitted
Unsecured Ratio Debt, in each case under clause (I)(1) of the definitions thereof established after the Amendment No. 1 Effective
Date and prior to such time and outstanding under Section 6.01(b), in each case, in reliance on this clause (a) (amounts
incurred pursuant to this clause (a), the “Cash Capped Amount”), plus
(b) (a) any
amounts so long as immediately after giving pro forma effect to the establishment of the commitments in respect thereof, any Asset Acquisition
consummated concurrently therewith and,
the use of proceeds of the loans thereunderthereof
and all other related transactions or events, the First Lien Net Leverage Ratio is equal to or less than 4.00 to 1.00 on the date
of the initial incurrence of (or commitment in respect of) the applicable Incremental Facility (except as set forth in Section 1.08)
and calculated (x) as if any commitments in respect of Permitted Ratio Debt and Incremental Revolving Commitments were fully drawn
on the effective date thereof and (y) excluding any cash constituting proceeds of any such Incremental Facility or any simultaneous
incurrence of Permitted Ratio Debt in reliance on this clause (b) (amounts incurred pursuant to this clause (b), the
“Ratio Incremental Amount”), plus (c)
(c) the
amount of any voluntary repayments of Term Loans pursuant to Section 2.08(a) and any Other First Lien Debt and Revolving Commitment
reductions pursuant to Section 2.06 after the Closing Date and prior to such time that, in each case, are not funded with the proceeds
of long-term Indebtedness (less the amount of Permitted Secured Ratio Debt
and Permitted Unsecured Ratio Debt, in each case under clause (I)(2) of the definitions thereof established after the Amendment
No. 1 Effective Date and prior to such time and outstanding under Section 6.01(b)) (amounts incurred pursuant to this
clause (c), the “Repayment Amount”);
provided
that (x) at the Borrower’s option, capacity under the Ratio Incremental
Amount shall automatically (unless the Borrower otherwise elects) be
deemed to be used before capacity under the Cash Capped Amount and the Repayment Amount and (y) any portion of any Incremental Facility
incurred under the Cash Capped Amount or the Repayment Amount mayshall
be automatically reclassified,
as the Borrower may elect from time to time, and deemed
as having been incurred under the Ratio Incremental Amount if the Borrower meets the ratio under the Ratio Incremental Amount at such
time on a pro forma basis (which, for the avoidance of doubt, shall have
the effect of increasing availability under the Cash Capped Amount or Repayment Amount, as applicable, by the amount of such redesignated
Indebtedness).
“Incremental Assumption Agreement”
means an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower,
the Administrative Agent and, if applicable, one or more Incremental Term Lenders and/or Incremental Revolving Lenders.
“Incremental Commitment” means
an Incremental Term Loan Commitment or an Incremental Revolving Commitment.
“Incremental Facility” means
the Incremental Commitments and the Incremental Loans made thereunder.
“Incremental Lenders” has the
meaning assigned to such term in Section 2.02(e).
“Incremental Loan” means an
Incremental Term Loan or an Incremental Revolving Loan.
“Incremental Revolving Commitment”
means the commitment of any Lender, established pursuant to Section 2.02, to make Incremental Revolving Loans to the Borrower.
“Incremental Revolving Lender”
means a Lender with an Incremental Revolving Commitment or an outstanding Incremental Revolving Loan.
“Incremental Revolving Loan”
means Revolving Loans made by one or more Revolving Lenders to the Borrower pursuant to an Incremental Revolving Commitment to make additional
Revolving Loans.
“Incremental Term Facility”
means the Incremental Term Loan Commitments and the Incremental Term Loans made thereunder.
“Incremental Term Lender” means
a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.
“Incremental Term Loan Commitment”
means the commitment of any Lender, established pursuant to Section 2.02, to make Incremental Term Loans to the Borrower.
“Incremental Term Loans” means
any term loans borrowed in connection with an Incremental Assumption Agreement.
“Incurrence Based Amounts”
has the meaning assigned to such term in Section 1.07(a).
“Indebtedness” of any Person
at any date means, without duplication:
(1) all
liabilities, contingent or otherwise, of such Person for borrowed money;
(2) all
obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all
reimbursement obligations of such Person in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar
credit transactions;
(4) all
obligations of such Person to pay the deferred and unpaid purchase price of property or services, except (i) trade payables and
accrued expenses incurred by such Person in the ordinary course of business and (ii) amounts accrued associated with contingent
consideration arrangements;
(5) all
Capital Lease Obligations of such Person;
(6) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person;
(7) all
Indebtedness of others Guaranteed by such Person to the extent of such Guarantee; provided that Indebtedness of the Borrower or
its subsidiaries that is Guaranteed by the Borrower or the Borrower’s subsidiaries shall only be counted once in the calculation
of the amount of Indebtedness of the Borrower and its subsidiaries on a consolidated basis; and
(8) all
obligations of such Person under conditional sale or other title retention agreements relating to assets purchased by such Person (excluding
obligations arising from inventory transactions in the ordinary course of business);
provided
that, to the extent otherwise constituting Indebtedness, no obligations incurred by Borrower or its Restricted Subsidiaries (other than
any Securitization Subsidiary) in connection with any Permitted Securitization shall be considered Indebtedness. The amount of
any Indebtedness which is incurred at a discount to the principal amount at maturity thereof as of any date shall be deemed to have been
incurred at the accreted value thereof as of such date. The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above, the maximum liability of such Person for any such contingent
obligations at such date and, in the case of clause (6), the lesser of (a) the Fair Market Value of any asset subject to a Lien
securing the Indebtedness of others on the date that the Lien attaches and (b) the amount of the Indebtedness secured.
“Indemnified Taxes” means all
Taxes other than Excluded Taxes.
“Indemnitee” has the meaning
assigned to such term in Section 9.04(b).
“Information” has the meaning
assigned to such term in Section 9.13.
“Information Memorandum” shall
mean the Confidential Information Memorandum, dated November 15, 2021, as modified or supplemented prior to the Closing Date.
“Insolvent” with respect to
any Multiemployer Plan means the condition that such Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA.
“Intellectual Property” means
the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including copyrights, patents, trademarks, service marks, trade dress, internet domain names,
software, data, databases, technology, know-how, trade secrets, processes and other confidential or proprietary information, together
with all registrations and applications for registration thereof, all licenses thereof or pertaining thereto, and all rights to sue at
law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Interest
Coverage Ratio” means the ratio of (i) Consolidated EBITDA to (ii) Consolidated Cash Interest Expense, in each case for
the relevant Test Period.
(A)
The Interest Coverage Ratio shall be calculated for any period after giving effect on a pro forma basis (as if they had occurred on the
first day of the applicable Test Period) to:
(1) the
incurrence of any Indebtedness of the Borrower or any Restricted Subsidiary (other than any Securitization Subsidiary) (and the application
of the proceeds thereof) and any repayment, repurchase, defeasance or other discharge of Indebtedness (and the application of the proceeds
therefrom) (other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant
to any revolving credit arrangement) occurring during the applicable Test Period or at any time subsequent to the last day of such Test
Period and on or prior to the date of determination, as if such incurrence, repayment, issuance or redemption, as the case may be (and
the application of the proceeds thereof and all transactions and events in connection therewith), occurred on the first day of the Test
Period;
(2) any
(v) Asset Sale, (w) asset sale if the Fair Market Value of the assets sold in such transaction or series of related transactions
exceeds $2,000,000, which is solely excluded from the definition of Asset Sale pursuant to clause (7) of such definition, (x) Asset
Acquisition, (y) operational changes or restructurings or (z) Designation or Revocation, in each case including all transactions
and events in connection with such event (each a “pro forma event”) occurring during the Test Period or at any time subsequent
to the last day of the Test Period and on or prior to the date of determination as if such pro forma event occurred on the first day
of the Test Period, including any cost savings and cost synergies resulting from head count reduction, closure of facilities and similar
operational and other cost savings, cost synergies, operating expense reductions, restructurings, cost savings initiatives or other initiatives
relating to such pro forma event occurring (or expected, in the good faith determination of the Borrower, to result from actions that
have been taken or initiated or expected to be taken) in the case of any actions that have been taken or initiated or are expected to
be taken (x) in connection with the Transactions, within 36 months of the Closing Date, or (y) otherwise, within 24 months
of such pro forma event and during such period or subsequent to such period and on or prior to the date of such calculation, in each
case that are expected to have a continuing impact and are factually supportable, and which adjustments the Borrower determines are reasonable
as set forth in an Officer’s Certificate; provided that the aggregate amount of all such cost savings and cost synergies pursuant
to this clause (A)(2) and clause (i) of the second paragraph of the definition of “Consolidated EBITDA” shall in
no event exceed 25.0% of Consolidated EBITDA (after giving effect to such adjustment) for any Test Period; provided, further, that asset
sales described in clause (A)(2)(x) in an aggregate amount not to exceed $80,000,000 in any Test Period shall not be required to
be given pro forma effect; and
(3) the
amount of any loss or pre-opening expenses attributable to a New Project, until the date that is 12 months after the date of completing
the construction, acquisition, assembling or creation of such New Project, as the case may be; provided that (i) such losses or
pre-opening expenses are reasonably identifiable and factually supportable, (ii) losses or preopening expenses attributable to such
New Project after 12 months from the date of completing such construction, acquisition, assembling or creation, as the case may be, shall
not be included in this clause (3) and (iii) the aggregate amount of all adjustments pursuant to this clause (3) and clause
(ii) of the second paragraph of the definition of “Consolidated EBITDA” shall not exceed $20,000,000 in any Test Period;
and
(B) in
calculating Consolidated Interest Expense for purposes of the Interest Coverage Ratio with respect to any Indebtedness being given pro
forma effect:
(1) interest
on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on
the date of determination;
(2) if
interest on any Indebtedness actually incurred on the date of determination 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 rates, then the interest rate in effect on the date
of determination will be deemed to have been in effect during the Test Period;
(3) notwithstanding
clause (1) or (2) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered
by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation
of the agreements governing such Hedging Obligations;
(4) interest
on any Indebtedness under a revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during
the Test Period; and
(5) interest
on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting
Officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
“Interest Election Request”
means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.05.
“Interest Payment Date” means
(a) with respect to any ABR Loan, the last day of each March, June, September and December, (b) with respect to any RFR
Loan, (1) each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of
such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the applicable
maturity date and (c) with respect to any Term Benchmark Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest Period of more than three months’ duration,
each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of
such Interest Period.
“Interest Period” means, as
to any Term Benchmark Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect
to such Term Benchmark Loan and ending one week, one month, three months or six months (or, if available to all Lenders under the applicable
Facility, twelve months) thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may
be, given with respect thereto, and (b) thereafter, each period commencing on the last day of the next preceding Interest Period
and ending one week, one month, three months or six months (or, if agreed to by all Lenders under the applicable Facility, twelve months
or such other, shorter period) thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than
12:00 noon, New York City time (or in the case of an Alternative Currency, 11:00 a.m., London time), on the date that is three Business
Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if
any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) the
Borrower may not select an Interest Period for a Revolving Loan that would extend beyond the Revolving Termination Date or an Interest
Period for a Term Loan that would extend beyond the date the final payment is due on such Term Loan; and
(iii) any
Interest Period of at least one month’s duration that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day
of a calendar month.
“Investments” has the meaning
assigned to such term in Section 6.11.
“IPO Entity” means, at any
time on, at and after a Qualified IPO, the Borrower or any parent
entity of the Borrower, as the case may be, the Equity Interests in which were issued or otherwise sold pursuant to the Qualified IPO;
provided that, immediately following such Qualified IPO, if the Borrower is not the IPO Entity, the Borrower is a wholly-owned
subsidiary of such IPO Entity and such IPO Entity owns, directly or through its subsidiaries, substantially all the businesses and assets
owned or conducted, directly or indirectly, by the Borrower immediately prior to the Qualified IPO.
“ISP” means, with respect to
any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law &
Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank” means JPMorgan
Chase Bank, N.A., Bank of America, N.A., BNP Paribas and Truist Bank, and each other Issuing Bank designated pursuant to Section 2.17(j),
each in its capacity as an issuer of Letters of Credit, and its successors in such capacity as provided in Section 2.17(i).
“Joinder and Reaffirmation Agreement”
means an agreement in substantially the form of Exhibit J or otherwise in form and substance reasonably satisfactory to the
Administrative Agent.
“Judgment Currency” has the
meaning assigned to such term in Section 9.14.
“Junior Debt” means Indebtedness
for borrowed money that is by its terms subordinated or junior in right of payment or security to the Obligations, in each case with
an aggregate outstanding principal amount in excess of $50,000,000.
“Junior Debt Restricted Payment”
means any payment or other distribution (whether in cash, securities or other property), directly or indirectly made by the Borrower
or any if its Restricted Subsidiaries, of or in respect of principal of or interest on any Junior Debt (or any Indebtedness incurred
as Refinancing Indebtedness in respect thereof); provided that the following shall not constitute a Junior Debt Restricted Payment:
(a) refinancings
with any Refinancing Indebtedness permitted to be incurred under Section 6.01;
(b) payments
of regularly-scheduled interest and fees due thereunder, other non-principal payments thereunder, any mandatory prepayments of principal,
interest and fees thereunder, scheduled payments thereon necessary to avoid the Junior Debt from constituting “applicable high
yield discount obligations” within the meaning of Section 163(i)(l) of the Code, and principal on the scheduled maturity
date of any Junior Debt;
(c) payments
or distributions in respect of all or any portion of the Junior Debt with the proceeds from the issuance, sale or exchange by the Borrower
of Qualified Equity Interests within eighteen months prior thereto; or
(d) the
conversion of any Junior Debt to Qualified Equity Interests of the Borrower.
“Junior
Lien Debt” means obligations secured by Liens on the Collateral that are junior in priority to the Liens thereon securing the Term
B Loans and Term B-1 Loans pursuant to a junior intercreditor agreement reasonably satisfactory to the Administrative Agent (it being
understood that Junior Lien Debt is not required to rank equally and ratably with other Junior Lien Debt and that Junior Lien Debt may
be secured by Liens that are senior in priority to, or rank equally and ratably with, or junior in priority to, other Junior Lien Debt).
“Latest Maturity Date” means,
at any date of determination, the latest of the latest Revolving Termination Date and the latest maturity date in respect of any Class of
Term Loans or Extended Revolving Commitments, in each case then in effect on such date of determination.
“LC Commitment Amount” means,
as to each Issuing Bank as of the Closing Date, an amount not to exceed the amount set forth under the heading “LC Commitment Amount”
opposite such Issuing Bank’s name on Schedule 1.01A, and as to any other Revolving Lender that may become an Issuing Bank under
Section 2.17(j), the amount agreed in writing between such Issuing Bank and the Borrower, in each case as such amount may be increased
as agreed in writing between the applicable Issuing Bank and the Borrower.
“LC Disbursement” means a payment
made by the Issuing Bank pursuant to a demand for payment or drawing under a Letter of Credit.
“LC Exposure” means, at any
time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Lender at any time shall be its Revolving Commitment Percentage of the total LC Exposure at such time. For purposes of computing the
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.
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.
“LC Participation Calculation Date”
means, with respect to any LC Disbursement made by the Issuing Bank or any refund of a reimbursement payment made by the Issuing Bank
to the Borrower, in each case in a currency other than Dollars, (a) the date on which such Issuing Bank shall advise the Administrative
Agent that it purchased with Dollars the currency used to make such LC Disbursement or refund or (b) if such Issuing Bank shall
not advise the Administrative Agent that it made such a purchase, the date on which such LC Disbursement or refund is made.
“LCT Election” has the meaning
assigned to such term Section 1.08(b).
“LCT Test Date” has the meaning
assigned to such term Section 1.08(b).
“Lender-Related Person” has
the meaning assigned to such term in Section 9.04(b).
“Lead Arrangers” means, collectively,
JPMorgan Chase Bank, N.A., BofA Securities, Inc., BNP Paribas Securities Corp. and Truist Securities, Inc. as joint lead arrangers
and joint bookrunners.
“Lenders” means the Persons
listed on Schedule 1.01A and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption or any Incremental
Assumption Agreement, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Letter of Credit” means any
letter of credit issued pursuant to Section 2.17.
“Lien” means, with respect
to any asset, any mortgage, deed of trust, lien (statutory or other), pledge, easement, charge, security interest or other encumbrance
of any kind or nature in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including
the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing) relating to such asset. “Lien” shall not, however,
include any interest of a vendor in any inventory of the Borrower or any of its Restricted Subsidiaries arising out of such inventory
being subject to a “sale or return” arrangement with such vendor or any consignment by any third party of any inventory to
the Borrower or any of its Restricted Subsidiaries.
“Limited Condition Transaction”
means (x) any acquisition or Investment, including by way of merger, amalgamation, consolidation or other business combination or
the acquisition of Equity Interests or otherwise, by one or more of the Borrower and its Restricted Subsidiaries of or in any assets,
business or Person, in each case, whose consummation is not conditioned on the availability of, or on obtaining, third party financing,
(y) any redemption, purchase, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity
Interests or Preferred Stock by one or more of the Borrower and its Restricted Subsidiaries requiring irrevocable notice or
an irrevocable offer to purchase, in advance of such redemption, purchase, repurchase, defeasance, satisfaction and discharge
or prepayment or (z) any declaration of a distribution or dividend in respect of, or irrevocable advance notice of, or any irrevocable
offer to, purchase, redeem or otherwise acquire or retire for value, any Equity Interests of the Borrower or any parent entity, that
is not subject to obtaining financing.
“Loan Documents” means the
collective reference to this Agreement, the Guarantee Agreement, the Collateral Documents, any Incremental Assumption Agreement, any
promissory note issued pursuant to Section 2.07(a), the Letters of Credit, any intercreditor agreement entered into in accordance
with this Agreement and any amendments (including the 2024 Joinder and Reaffirmation
Agreement and Amendment No. 1) or waivers to any of the foregoing.
“Loan Parties” means the collective
reference to the Borrower and the Subsidiary Guarantors.
“Loans” means the loans made
by the Lenders to the Borrower pursuant to this Agreement.
“Margin Stock” has the meaning
assigned to such term in Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder
or thereof.
“Material Adverse Effect” means
a material adverse effect on (a) the business, operations, property or condition, financial or otherwise, of the Borrower and its
Restricted Subsidiaries taken as a whole that results in a material impairment of the ability of the Borrower to perform any payment
obligations hereunder or (b) the validity or enforceability of this Agreement or the other Loan Documents or the rights or remedies
of the Administrative Agent (including in its capacity as Collateral Agent) or the Lenders hereunder or thereunder.
“Material Domestic Subsidiary”
means any Wholly Owned Subsidiary that is a Domestic Subsidiary of the Borrower, as of the last day of the fiscal quarter of the Borrower
most recently ended for which financial statements have been or are required to have been delivered, that has assets or revenues (including
third party revenues but not including intercompany revenues) with a value in excess of 5.0% of the consolidated assets of the Borrower
and its Wholly Owned Subsidiaries that are Domestic Subsidiaries or 5.0% of the consolidated revenues of the Borrower and its Wholly
Owned Subsidiaries that are Domestic Subsidiaries; provided that in the event Wholly Owned Subsidiaries that are Domestic Subsidiaries
that would otherwise not be Material Domestic Subsidiaries shall in the aggregate account for a percentage in excess of 10.0% of the
consolidated assets of the Borrower and its Wholly Owned Subsidiaries that are Domestic Subsidiaries or 10.0% of the consolidated revenues
of the Borrower and its Wholly Owned Subsidiaries that are Domestic Subsidiaries as of the end of and for the most recently completed
fiscal quarter, then one or more of such Domestic Subsidiaries designated by the Borrower (or, if the Borrower shall make no designation,
one or more of such Domestic Subsidiaries in descending order based on their respective contributions to the consolidated assets of the
Borrower), shall be included as Material Domestic Subsidiaries to the extent necessary to eliminate such excess.
“Material Indebtedness” means
Indebtedness (other than the Loans), or obligations in respect of a Swap Agreement, of any one or more of the Borrower and its Restricted
Subsidiaries in an aggregate principal amount exceeding $80,000,000; provided
that in no event shall any obligations in respect of a Permitted Securitization be considered Material Indebtedness. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Restricted Subsidiary
in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
“Material Intellectual Property”
means Intellectual Property owned by any Loan Party that is material to the business of the Loan Parties taken as a whole, as determined
in good faith by the Borrower.
“Material Subsidiary” means
any Restricted Subsidiary of the Borrower, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial
statements have been, or were required to be, delivered pursuant to Section 5.01, that has assets or revenues (including third party
revenues but not including intercompany revenues) with a value in excess of 5.0% of the consolidated assets of the Borrower or 5.0% of
the consolidated revenues of the Borrower; provided that in the event Restricted Subsidiaries that would otherwise not be Material
Subsidiaries shall in the aggregate account for a percentage in excess of 10.0% of the consolidated assets of the Borrower or 10.0% of
the consolidated revenues of the Borrower as of the end of and for the most recently completed fiscal quarter for which financial statements
have been, or were required to be, delivered pursuant to Section 5.01, then one or more of such Restricted Subsidiaries designated
by the Borrower (or, if the Borrower shall make no designation, one or more of such Restricted Subsidiaries in descending order based
on their respective contributions to the consolidated assets of the Borrower), shall be included as Material Subsidiaries to the extent
necessary to eliminate such excess.
“Merger” has the meaning assigned
to such term in the recitals to this Agreement.
“Merger Agreement” has the
meaning assigned to such term in the recitals to this Agreement.
“Merger Agreement Target Representations”
means the representations and warranties made by or with respect to the Target in the Merger Agreement as are material to the interests
of the Lenders, but only to the extent that the Borrower or any of its Affiliates has the right (taking into account any applicable cure
provisions) to terminate its or their obligations under the Merger Agreement or decline to consummate the Merger as a result of a breach
of such representations in the Merger Agreement
“Merger Sub” has the meaning
assigned to such term in the recitals to this Agreement.
“Moody’s” means Moody’s
Investors Service, Inc.
“Multiemployer Plan” means
a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Proceeds” means:
(a) 100%
of the cash proceeds actually received by the Borrower or any subsidiary (including any cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when
received) from any Asset Sale, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs,
title insurance premiums, and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes, other customary
expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) required payments of
Indebtedness (other than Indebtedness incurred under the Loan Documents, Other First Lien Debt or obligations secured by a Lien that
is junior to the Liens securing the Obligations) and required payments of other obligations relating to the applicable asset to the extent
such Indebtedness or other obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan Documents, Other First
Lien Debt or obligations secured by a Lien that is junior to the Liens securing the Obligations), (iii) repayments,
redemptions or other repurchases of Other First Lien Debt (limited to its proportionate share of such prepayment, redemption
or other repurchase based on the amount of such then outstanding debt as a percentage of all then outstanding Indebtedness incurred
under the Loan Documents (other than Refinancing Term Loans that rank junior
in right of security with the other Term Loans) and Other First Lien Debt), (iv) Taxes paid or payable (in the good faith
determination of the Borrower) as a direct result thereof, and (v) the amount of any reasonable reserve established in accordance
with GAAP against any adjustment to the sale price or any liabilities (other than any Taxes deducted pursuant to clause (i) or (iv) above)
(x) related to any of the applicable assets and (y) retained by the Borrower or any of the Subsidiaries including, without
limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification
obligations (provided that (1) the amount of any reduction of such reserve (other than in connection with a payment in respect
of any such liability), prior to the date occurring 18 months after the date of the respective Asset Sale, shall be deemed to be cash
proceeds of such Asset Sale occurring on the date of such reduction and (2) the amount of any such reserve that is maintained as
of the date occurring 18 months after the date of the applicable Asset Sale shall be deemed to be Net Proceeds from such Asset Sale as
of such date); provided, that, if the Borrower shall deliver an Officer’s Certificate to the Administrative Agent promptly
following receipt of any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds, within 18 months
of such receipt, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Borrower and
the Subsidiaries or to make Asset Acquisitions and other Investments permitted hereunder (excluding Cash Equivalents or intercompany
Investments in Subsidiaries) or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving
rise to such proceeds was contractually committed (other than inventory), such portion of such proceeds shall not constitute Net Proceeds
except to the extent not, within 365 dayseighteen
(18) months of such receipt (or prior to such receipt, but no earlier
than the earliest of (i) 90 days prior to consummation of the relevant Asset Sale, (ii) notice to the Administrative Agent
of the relevant Asset Sale, and (iii) execution of a definitive agreement for the relevant Asset Sale), so used or contractually
committed to be so used (it being understood that if any portion of such proceeds are not so used within such 365
dayeighteen (18) month period but within such 365
dayeighteen (18) month period are contractually committed
to be used, then such remaining portion if not so used within 180 dayssix
(6) months following the end of such 365 dayeighteen
(18) month period shall constitute Net Proceeds as of such date without giving effect to this proviso); provided, further,
that no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions
shall constitute Net Proceeds unless such net cash proceeds shall exceed the
greater of $80,000,000 and 25% of Consolidated EBITDA for the then
most recently ended Test Period (and in each case thereafter only net cash proceeds in excess of such amount shall constitute
Net Proceeds) (any amounts not constituting Net Proceeds as a result of
this proviso, “Excluded Asset Sale Proceeds”); provided, further, that, notwithstanding anything herein to the contrary,
no net cash proceeds shall constitute Net Proceeds if the Required Asset Sale Percentage is 0% at the time such net cash proceeds are
received;
(b) 100%
of the cash proceeds actually received by the Borrower or any Subsidiary (including casualty insurance settlements and condemnation awards,
but only as and when received) from any Recovery Event, net of (i) attorneys’ fees, accountants’ fees, transfer Taxes,
deed or mortgage recording Taxes on such asset, other customary expenses and brokerage, consultant and other customary fees actually
incurred in connection therewith, (ii) required payments of Indebtedness (other than Indebtedness incurred under the Loan Documents,
Other First Lien Debt or obligations secured by a Lien that is junior to the Liens securing the Obligations) and required payments of
other obligations relating to the applicable asset to the extent such Indebtedness or other obligations are secured by a Lien permitted
hereunder (other than pursuant to the Loan Documents, Other First Lien Debt or obligations secured by a Lien that is junior to the Liens
securing the Obligations), (iii) repayments of Other First Lien Debt (limited to its proportionate share of such prepayment, based
on the amount of such then outstanding debt as a percentage of all then outstanding Indebtedness incurred under the Loan Documents (other
than Refinancing Term Loans that rank junior in right of security with the other Term Loans) and Other First Lien Debt, and (iv) Taxes
paid or payable (in the good faith determination of the Borrower) as a direct result thereof; provided, that, if the Borrower
shall deliver an Officer’s Certificate to the Administrative Agent promptly following receipt of any such proceeds setting forth
the Borrower’s intention to use any portion of such proceeds, within 18 months of such receipt, to acquire, maintain, develop,
construct, improve, upgrade or repair assets useful in the business of the Borrower and the Subsidiaries or to make Asset Acquisitions
and other Investments permitted hereunder (excluding Cash Equivalents or intercompany Investments in Subsidiaries) or to reimburse the
cost of any of the foregoing incurred on or after the date on which the Recovery Event giving rise to such proceeds was contractually
committed (other than inventory, except to the extent the proceeds of such Recovery Event are received in respect of inventory), such
portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 18 months of such receipt, so used or contractually
committed to be so used (it being understood that if any portion of such proceeds are not so used within such 180-month period but within
such 18-month period are contractually committed to be used, then such remaining portion if not so used within 180 days following the
end of such 18-month period shall constitute Net Proceeds as of such date without giving effect to this proviso); provided, further,
that no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions
shall constitute Net Proceeds unless such net cash proceeds shall exceed the
greater of $80,000,000 and 25% of Consolidated EBITDA for the then
most recently ended Test Period (and in each case thereafter only net cash proceeds in excess of such amount shall constitute
Net Proceeds) (any amounts not constituting Net Proceeds as a result of
this proviso, “Excluded Casualty Proceeds”); and
(c) 100%
of the cash proceeds from the incurrence, issuance or sale by the Borrower or any Subsidiary of any Indebtedness (other than Excluded
Indebtedness, except for Refinancing Term Loans), net of all fees (including investment banking fees), commissions, costs and other expenses,
in each case incurred in connection with such issuance or sale.
“Net Short Lender” has the
meaning assigned to such term in Section 7.01.
“New Project” (a) each
facility, branch, office or business unit which is either a new facility, branch, office or business unit or an expansion, relocation,
remodeling or substantial modernization of an existing facility, branch, office or business unit owned by the Borrower or its Restricted
Subsidiaries which in fact commences operations and (b) each creation (in one or a series of related transactions) of a business
unit, product line or information technology offering to the extent such business unit commences operations or such product line or information
technology is offered or each expansion (in one or a series of related transactions) of business into a new market.
“Non-Consenting Lender” has
the meaning assigned to such term in Section 2.16(c).
“Non-Defaulting Lender” means,
at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Defaulting Revolving Lender”
means, at any time, each Revolving Lender that is not a Defaulting Lender at such time.
“Non-Exchanged
Term B Loan” means each Term B Loan extended on the Closing Date (or portion thereof) other than an Exchanged Term B Loan.
“Non-Extension Notice Date”
has the meaning assigned to such term in Section 2.17(b).
“Non-Loan Party” means any
Restricted Subsidiary other than a Loan Party.
“Non-U.S. Lender” means any
Lender that is not a U.S. Lender.
“NYFRB” means the Federal Reserve
Bank of New York.
“NYFRB Rate” means, for any
day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect
on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of
such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction
quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected
by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for
purposes of this Agreement.
“NYFRB’s Website” means
the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Obligations” means the unpaid
principal of and interest on (including interest, fees and expenses accruing after the maturity of the Loans and interest, fees and expenses
accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition interest, fees and expenses is allowed in such proceeding) the
Loans, the obligations of the Loan Parties to reimburse the Issuing Bank for demands for payment or drawings under a Letter of Credit,
and all other obligations and liabilities of the Borrower, the Subsidiary Guarantors and any Restricted Subsidiaries to the Administrative
Agent or to any Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, any Specified Swap Agreement,
any Cash Management Agreement or any other document made, delivered or given in connection herewith or therewith, whether on account
of principal, interest, fees, indemnities, costs, expenses or otherwise (including all fees, charges and disbursements of counsel to
the Administrative Agent, the Lead Arrangers, the Co-Documentation Agents, the Senior Co-Managers, the Co-Managers or to any Lender that
are required to be paid by the Borrower pursuant hereto). Notwithstanding the foregoing, the Obligations shall not include any Excluded
Swap Obligations.
“OFAC” means the U.S. Department
of the Treasury’s Office of Foreign Assets Control.
“Officer’s Certificate”
means a certificate of a Financial Officer in form and substance reasonably acceptable to the Administrative Agent.
“Other First Lien Debt” means
obligations secured by Liens on the Collateral that are equal and ratable with the Liens thereon securing the Term B Loans and
Term B-1 Loans pursuant to an intercreditor agreement reasonably satisfactory to the Administrative Agent.
“Other Taxes” means all present
or future stamp, documentary, recording or similar Taxes or any other excise Taxes, charges or similar levies arising from any payment
made under any Loan Document or from the execution, delivery or enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document.
“Outstanding Revolving Credit”
means, with respect to any Revolving Lender at any time, an amount equal to the sum of (a) the aggregate then outstanding principal
amount of such Revolving Lender’s Revolving Loans and (b) such Revolving Lender’s LC Exposure.
“Overnight Bank Funding Rate”
means, for any day, with respect to any amount, the rate comprised of both overnight federal funds and overnight eurodollar transactions
by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on the
NYFRB’s Website from time to time), and published on the next succeeding Business Day by the NYFRB as an overnight bank funding
rate (from and after such date as the NYFRB shall commence to publish such composite rate).
“parent” has the meaning assigned
to such term in the definition of “subsidiary.”
“Parent Company” has the meaning
assigned to such term in the definition of “Bankruptcy Event.”
“Participant” has the meaning
assigned to such term in Section 9.05(c).
“Participant Register” has
the meaning assigned to such term in Section 9.05(c).
“Participating Member State”
means any member state of the EMU which has the Euro as its lawful currency.
“Payment” has the meaning assigned
to such term in Section 8.11(c).
“Payment Notice” has the meaning
assigned to such term in Section 8.11(c).
“PBGC” means the Pension Benefit
Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Pension Entity” has the meaning
assigned to such term in the definition of “Excluded Subsidiary.”
“Perfection Certificate” means
a certificate substantially in the form of Exhibit H or any other form approved by the Administrative Agent (acting reasonably),
as the same shall be supplemented from time to time by any supplement thereto or otherwise.
“Permitted Encumbrances” means:
(a) Liens
imposed by law for Taxes, assessments or governmental charges that are not yet due or are being contested in compliance with Section 5.04;
(b) landlord’s,
carriers’, warehousemen’s, mechanics’, supplier’s, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are
being contested in compliance with Section 5.04;
(c) pledges
and deposits made in the ordinary course of business in compliance with employee benefits or other workers’ compensation (or pursuant
to letters of credit issued in connection with such workers’ compensation compliance), unemployment insurance and other social
security laws or regulations;
(d) deposits
to secure the performance of tenders, bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds,
leases, subleases, government contracts and return-of-money bonds, letters of credit and other obligations of a like nature, in each
case in the ordinary course of business (exclusive of the obligation for the payment of borrowed money);
(e) judgment
liens in respect of judgments that do not constitute an Event of Default under Section 7.01(j);
(f) easements,
zoning restrictions, rights-of-way, survey exception, minor encumbrances, reservation of, licenses, electric lines, telegraph and telephone
lines and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business
of the Borrower or any Restricted Subsidiary;
(g) Liens
securing obligations in respect of trade-related letters of credit and covering the goods (or the documents of title in respect of such
goods) financed or the purchase of which is supported by such letters of credit and the proceeds and products thereof;
(h) Liens
upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’
acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other
goods; and
(i) Liens
securing obligations in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance
obligations (other than Obligations in respect of Indebtedness) and trade-related letters of credit, in each case, outstanding on the
Closing Date or issued thereafter in and covering the goods (or the documents of title in respect of such goods) financed by such letters
of credit, banker’s acceptances or bank guarantees and the proceeds and products thereof.
“Permitted Holders” means any
one or more of (a) IAC and its wholly owned subsidiaries, (b) Barry Diller, (c) each of the respective Affiliated Persons
of the Person referred to in clause (b) and (d) any Person a majority of the aggregate voting power of all the outstanding
classes or series of the equity securities of which are beneficially owned by any one or more of the Persons referred to in clauses (a),
(b) or (c).
“Permitted Liens” means Liens
permitted by Section 6.02.
“Permitted Mandatory Prepayments”
means, with respect to any Indebtedness, any requirement to prepay such Indebtedness (i) in connection with any asset sale or event
of loss (with associated reinvestment rights), (ii) in respect of Refinancing Indebtedness, (iii) in respect of Indebtedness
not permitted to be incurred by the terms of such Indebtedness, (iv) in connection with any cash sweep provisions customary in the
determination of the Borrower for term loan B facilities or (v) in connection with any change of control.
“Permitted Ratio Debt” means
Permitted Secured Ratio Debt and Permitted Unsecured Ratio Debt.
“Permitted Secured Ratio Debt”
means Indebtedness of the Borrower so long as,
(I) such
Indebtedness does not exceed the sum of (1) the amount available under the Cash Capped Amount, (2) the amount available under
the Repayment Amount and (3) any amounts so long as on a pro forma basis after giving effect thereto and the use of
proceeds thereof and all transactions and events in connection therewith
(calculated (x) as if any outstanding commitments for all such Indebtedness, Permitted Unsecured Ratio Debt and Incremental
Commitments were fully drawn on the effective date thereof and (y) excluding any cash constituting proceeds of any such Indebtedness
or any simultaneous incurrence of Permitted Unsecured Ratio Debt and/or Incremental Facilities),
(A) if such Indebtedness is secured
by the Collateral on a pari passu basis with the Obligations, the First Lien Net Leverage Ratio is equal to or less than 4.00 to 1.00
on the date of the initial incurrence of (or commitment in respect of) such Indebtedness or on the LCT Test Date, as applicable, and
(B) if such Indebtedness is secured
by the Collateral on a junior lien basis with the Obligations, (i) the
Consolidated Net Leverage Ratio is equal to or less than 5.50 to 1.00 or
(ii) the Interest Coverage Ratio would be not less than 2.00 to 1.00, in each case only on the date of the initial incurrence
of (or commitment in respect of) such Indebtedness or on the LCT Test Date,
as applicable (this clause (I)(3), the “Permitted Secured Ratio Debt Ratio Amount”);
provided
that (x) capacity under the Permitted Secured Ratio Debt Ratio Amount shall automatically (unless the Borrower otherwise elects)
be deemed to be used before capacity under the Cash Capped Amount and the Repayment Amount and (y) any portion of any Permitted
Secured Ratio Debt incurred under the Cash Capped Amount or the Repayment Amount shall be automatically reclassified and deemed as having
been incurred under the Permitted Secured Ratio Debt Ratio Amount if the Borrower meets the applicable ratio under the Permitted Secured
Ratio Debt Ratio Amount at such time on a pro forma basis (which, for the avoidance of doubt, shall have the effect of increasing availability
under the Cash Capped Amount or Repayment Amount, as applicable, by
the amount of such redesignated Indebtedness),
(II) subject to Section 1.08,
no Event of Default shall have occurred and be continuing after giving effect thereto,
(III) the maturity date of such
Indebtedness (other than a Customary Term A Facility and any customary bridge financings, which, subject to customary conditions, would
be automatically converted into or required to be exchanged for permanent financing which satisfies the requirements of this clause (III))
shall be no earlier than the Latest Maturity Date then in effect and such Indebtedness shall not require any mandatory prepayments other
than Permitted Mandatory Prepayments,
(IV) such Indebtedness (other than
a Customary Term A Facility) (x) shall not require scheduled amortization payments (excluding the final installment thereof) in
excess of 1.00% per annum of the original aggregate principal amount thereof, (y) shall not have a Weighted Average Life
to Maturity that is shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans (other
than for customary bridge financings, which, subject to customary conditions, would be automatically converted into or required to be
exchanged for permanent financing which satisfies the requirements of this clause (y)) and (z) (other than in the case of a Customary
Term A Facility, which shall reflect market terms and conditions (taken as a whole) for a term “A” loan at the time (as determined
by the Borrower in good faith) does not have negative covenants, financial covenants and/or default provisions that, taken as a whole,
are materially more restrictive than those applicable to the Facilities as determined in good faith by the Borrower unless such terms
become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing on the date of
the initial incurrence of (or commitment in respect of) such Indebtedness or on the LCT Test Date, as applicable, have been paid in full,
(V) such Indebtedness is not guaranteed
by any subsidiaries of the Borrower that do not guarantee the Obligations and is secured on an equal and ratable or junior lien basis
by the same Collateral securing the Obligations pursuant to an intercreditor agreement reasonably satisfactory to the Administrative
Agent and
(VI) if such Indebtedness is in
the form of term loans secured by the Collateral on a pari passu basis with the Obligation, such Indebtedness shall be subject to the
“most-favored nations” provision of Section 2.02(b)(v) as if such Indebtedness was incurred as an Incremental Term
Loan under this Agreement (and with pricing increases with respect to the Term B Loans and
Term B-1 Loans to occur as, and to the extent provided in the “most favored nations” provision of Section 2.02(b)(v) as
if such Indebtedness was incurred as an Incremental Term Loan hereunder).
“Permitted
Secured Ratio Debt Ratio Amount” has the meaning assigned to such term in the definition of “Permitted Secured Ratio Debt.”
“Permitted
Securitization” means any Securitization (a) that is designated as a “Permitted Securitization” to the Administrative
Agent by written notice from the Borrower, (b) where the purchase price paid by the Securitization Subsidiary for the Securitization
Assets is equal to the Fair Market Value thereof and (c) does not exceed, together with all other Permitted Securitizations then
outstanding in reliance on Section 6.01(cc), $300,000,000 in the aggregate.
“Permitted Unsecured Ratio Debt”
means unsecured Indebtedness of the Borrower so long as,
(I) such
Indebtedness does not exceed the sum of (1) the amount available under the Cash Capped Amount, (2) the amount available under
the Repayment Amount and (3) any amounts so long as on a pro forma basis after giving effect thereto and the use of proceeds
thereof and all transactions and events in connection therewith (calculated
(x) as if any outstanding commitments for all such Indebtedness, Permitted Secured Ratio Debt and Incremental Commitments were fully
drawn on the effective date thereof and (y) excluding any cash constituting proceeds of such Indebtedness or any simultaneous incurrence
of Permitted Secured Ratio Debt and/or Incremental Facilities), (i) the
Consolidated Net Leverage Ratio is equal to or less than 5.50 to 1.00 or
(ii) the Interest Coverage Ratio would be not less than 2.00 to 1.00, in each case only on the date of the initial incurrence
of (or commitment in respect of) such Indebtedness or on the LCT Test Date,
as applicable (this clause (I)(3), the “Permitted Unsecured Ratio Debt Ratio Amount”); provided that (x) capacity under
the Permitted Unsecured Ratio Debt Ratio Amount shall automatically (unless the Borrower otherwise elects) be deemed to be used before
capacity under the Cash Capped Amount and the Repayment Amount and (y) any portion of any Permitted Unsecured Ratio Debt incurred
under the Cash Capped Amount or the Repayment Amount shall be automatically reclassified and deemed as having been incurred under the
Permitted Unsecured Ratio Debt Ratio Amount if the Borrower meets the applicable ratio under the Permitted Unsecured Ratio Debt Ratio
Amount at such time on a pro forma basis (which, for the avoidance of doubt, shall have the effect of increasing availability under the
Cash Capped Amount or Repayment Amount, as applicable, by the amount
of such redesignated Indebtedness),
(II) subject to Section 1.08,
no Event of Default shall have occurred and be continuing after giving effect thereto,
(III) the maturity date of such
Indebtedness (other than a Customary Term A Facility and any customary bridge financings, which, subject to customary conditions, would
be automatically converted into or required to be exchanged for permanent financing which satisfies the requirements of this clause (III))
shall be no earlier than the Latest Maturity Date then in effect and such Indebtedness shall not require any mandatory prepayments other
than Permitted Mandatory Prepayments,
(IV) such Indebtedness (other than
any Customary Term A Facility) shall not require scheduled amortization payments (excluding the final installment thereof) in excess
of 1.00% per annum of the original aggregate principal amount thereof,
(V) such Indebtedness does not
have negative covenants, financial covenants and/or default provisions that, taken as a whole, are materially more restrictive than those
applicable to this Agreement as determined in good faith by the Borrower unless such terms become applicable only after the Revolving
Facility shall have matured or been terminated and any Term Loans existing on the date of the initial incurrence of (or commitment in
respect of) such Indebtedness or on the LCT Test Date, as applicable, have been paid in full and
(VI) no subsidiary of the Borrower
other than a Subsidiary Guarantor shall be an obligor under such Indebtedness.
“Permitted
Unsecured Ratio Debt Ratio Amount” has the meaning assigned to such term in the definition of “Permitted Unsecured Ratio
Debt.”
“person” and “group”
have the meanings given to them for purposes of Section 13(d) and 14(d) of the Exchange Act or any successor provisions,
and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the
meaning of rule 13d-5(b)(1) under the Exchange Act, or any successor provision.
“Person” means any individual,
corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company,
trust, unincorporated organization or government or other agency or political subdivision thereof or other entity of any kind.
“Plan” means an “employee
pension benefit plan” as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), subject to the provisions
of Section 302 and Title IV of ERISA or Section 412 of the Code, and in respect of which the Borrower or any ERISA Affiliate
is (or if such plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be) an “employer” as defined
in Section 3(5) of ERISA.
“Platform” has the meaning
assigned to such term in Section 9.18.
“Preferred Stock” means, with
respect to any Person, any and all preferred or preference stock or other equity interests (however designated) of such Person whether
now outstanding or issued after the Closing Date.
“Pricing Grid” means, in the
case of Revolving Loans and Term A Loans, the table below:
| Consolidated
Net Leverage Ratio |
Commitment
Fee Rate |
Applicable
Rate for
Term Benchmark Loans |
Applicable
Rate for
ABR Loans |
| ≥
3.50:1.00 |
0.40% |
2.25% |
1.25% |
| ≥
2.75:1.00 but < 3.50:1.00 |
0.35% |
2.00% |
1.00% |
| ≥
2.00:1.00 but < 2.75:1.00 |
0.30% |
1.75% |
0.75% |
| ≥1.25:1.00
but < 2.00:1.00 |
0.25% |
1.50% |
0.50% |
| <
1.25:1.00 |
0.20% |
1.25% |
0.25% |
For the purposes of the Pricing Grid, changes
in the Applicable Rate and Commitment Fee Rate resulting from changes in the Consolidated Net Leverage Ratio or the First Lien Net Leverage
Ratio, as applicable, shall become effective on the date (the “Adjustment Date”) on which financial statements are
delivered to the Lenders pursuant to Section 5.01 and shall remain in effect until the next change to be effected pursuant to this
paragraph. Notwithstanding the foregoing, if any financial statements referred to above are not delivered within the time periods specified
in Section 5.01, then, until the date on which such financial statements are delivered, the highest rate set forth in each column
of the Pricing Grid shall apply. In addition, at all times while an Event of Default shall have occurred and be continuing, the highest
rate set forth in each column of the Pricing Grid shall apply. Each determination of the Consolidated Net Leverage Ratio or the First
Lien Net Leverage Ratio pursuant to the Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to
Section 6.10.
“Prime Rate” means the rate
of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases
to quote such rate, the highest per annum interest rate published by the 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). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced
or quoted as being effective.
“Projections” has the meaning
assigned to such term in Section 3.11.
“Pro Forma Financial Information”
means the unaudited pro forma consolidated financial information of the Borrower as of and for the twelve (12)-month period ending on
September 30, 2021 included in the Confidential Information Memorandum of the Borrower dated November 2021 (including any private
supplement thereto).
“Pro Rata Extension Offer”
has the meaning assigned to such term in Section 2.19(a).
“PTE” means a prohibited transaction
class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning
assigned to such term in Section 9.18.
“Purchase Offer” has the meaning
assigned to such term in Section 2.22(a).
“QFC” has the meaning assigned
to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the
meaning assigned to such term in Section 9.20.
“QMA Notice” has the meaning
assigned to such term in the definition of “Qualifying Material Acquisition”.
“Qualified Equity Interests”
of any Person means Equity Interests of such Person other than Disqualified Equity Interests. Unless otherwise specified, Qualified Equity
Interests refer to Qualified Equity Interests of the Borrower.
“Qualified IPO” means (a) the
issuance and sale by an IPO Entity (other than IAC) of its common Equity Interests 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) or any other transaction which results in such common Equity Interests being
publicly traded, or (b) any transaction or series of related transactions (including a merger or other business combination transaction
by the Borrower or any direct or indirect parent of the Borrower with a “special purpose acquisition
company”or into another entity) following consummation
of which the Borrower or any Parent Entitysuch
parent entity or their respective successor, as applicable, is either subject to the periodic reporting obligations of the Exchange
Act or has a class or series of Equity Interests that are listed on a national securities exchange in the United States.
“Qualifying Material Acquisition”
means any acquisition or other Investment permitted by this Agreement with a Fair Market Value in excess of $200,000,000, if the Borrower
has designated such acquisition or other Investment as a “Qualifying Material Acquisition” by a written notice (a “QMA
Notice”) provided to the Administrative Agent within 15 Business Days after consummating such acquisition or other Investment.
“Ratio Incremental Amount”
has the meaning assigned to such term in the definition of “Incremental Amount.”
“Reallocated
General Basket Amount” shall mean the aggregate amount of unutilized Indebtedness incurrence capacity under Section 6.01(aa)
that the Borrower has elected to reallocate to the Cash Capped Amount.
“Recipient” means (a) the
Administrative Agent, (b) any Lender or (c) any Issuing Bank, as applicable.
“Reconciliation” has the meaning
assigned to such term in Section 5.01.
“Recovery Event” means any
event that gives rise to the receipt by the Borrower or any of its Subsidiaries of any insurance proceeds or condemnation awards in respect
of any equipment, fixed assets or real property (including any improvements thereon).
“refinance” means, in respect
of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, or to issue other Indebtedness in exchange or replacement for,
such Indebtedness.
“Reference Time” with respect
to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on
the day that is two Business Days preceding the date of such setting, (2) if such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels
time two TARGET Days preceding the date of such setting, (3) if such Benchmark is TIBOR Rate, 11:00 a.m. Japan time two Business
Days preceding the date of such setting, (4) if the RFR for such Benchmark is SONIA, then four Business Days prior to such setting,
(5) if the RFR for such Benchmark is Daily Simple SOFR, then four Business Days prior to such setting or (6) if such Benchmark
is none of the Term SOFR Rate, the EURIBOR Rate, the TIBOR Rate, SONIA, the time determined by the Administrative Agent in its reasonable
discretion.
“Refinanced Indebtedness” has
the meaning assigned to such term in the definition of “Refinancing Indebtedness.”
“Refinancing Amendment” has
the meaning assigned to such term in Section 2.20(e).
“Refinancing Effective Date”
has the meaning assigned to such term in Section 2.20(a).
“Refinancing Indebtedness”
means Indebtedness of the Borrower or a Restricted Subsidiary incurred in exchange for, or the proceeds of which are used to redeem or
refinance in whole or in part, any Indebtedness of the Borrower or any Restricted Subsidiary (the “Refinanced Indebtedness”);
provided that:
(a) the
principal amount (and accreted value, in the case of Indebtedness issued at a discount) of the Refinancing Indebtedness does not exceed
the principal amount (and accreted value, as the case may be) of the Refinanced Indebtedness plus the amount of accrued and unpaid interest
on the Refinanced Indebtedness, any premium (including tender premiums)
paid to the holders of the Refinanced Indebtedness and underwriting
discounts, defeasance costs, fees, commissions and expenses incurred in connection with the incurrence of the Refinancing Indebtedness;
(b) the
obligor of Refinancing Indebtedness does not include any Person (other than the Borrower or any Restricted Subsidiary) that is not an
obligor of the Refinanced Indebtedness;
(c) if
the Refinanced Indebtedness was by its terms subordinated in right of payment to the Loans or the Guarantee Agreement, as the case may
be, then such Refinancing Indebtedness, by its terms, is subordinate in right of payment to the Loans or the Guarantee Agreement, as
the case may be, at least to the same extent as the Refinanced Indebtedness;
(d) the
Refinancing Indebtedness has a final stated maturity no earlier than the Refinanced Indebtedness being redeemed or refinanced; and
(e) the
portion, if any, of the Refinancing Indebtedness that is scheduled to mature on or prior to the last maturity date applicable to the
Loans at the time the Refinancing Indebtedness is incurred has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness
is incurred that is equal to or greater than the Weighted Average Life to Maturity of the portion of the Refinanced Indebtedness being
redeemed or refinanced that is scheduled to mature on or prior to the last maturity date applicable to the Loans at the time the Refinancing
Indebtedness is incurred (provided that Refinancing Indebtedness in respect of Refinanced Indebtedness that has no amortization
may provide for amortization installments, sinking fund payments, senior maturity dates or other required payments of principal of up
to 1% of the aggregate principal amount per annum).
“Refinancing Term Loans” has
the meaning assigned to such term in Section 2.20(a).
“Register” has the meaning
assigned to such term in Section 9.05(b)(iv).
“Regulated Bank” means (x) a
banking organization with a consolidated combined capital and surplus of at least $5.0 billion that is (i) a U.S. depository institution
the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of
the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant
to approval by and under the supervision of the Board of Governors of the Federal Reserve System under 12 CFR part 211; (iv) a non-U.S.
branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non-U.S.
depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction
or (y) any Affiliate of a Person set forth in clause (x) to the extent that (1) all of the Equity Interests of such Affiliate
is directly or indirectly owned by either (I) such Person set forth in clause (x) or (II) a parent entity that also owns,
directly or indirectly, all of the Equity Interests of such Person set forth in clause (x) and (2) such Affiliate is a securities
broker or dealer registered with the SEC under Section 15 of the Exchange Act.
“Related Business” means any
business in which the Borrower or any Restricted Subsidiary was engaged on the Closing Date or, in the Borrower’s good faith determination,
any reasonable extension of such business and any business related, ancillary or complementary to any business of the Borrower or any
Restricted Subsidiary in which the Borrower or any Restricted Subsidiary was engaged on the Closing Date or any reasonable extension
of such business.
“Related Parties” means, with
respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors
of such Person and such Person’s Affiliates.
“Relevant Governmental Body”
means (i) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the
NYFRB, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or
the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated
in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor
thereto, (iii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a
committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, (iv) with respect
to a Benchmark Replacement in respect of Loans denominated in Yen, the Bank of Japan, or a committee officially endorsed or convened
by the Bank of Japan or, in each case, any successor thereto and (v) with respect to a Benchmark Replacement in respect of Loans
denominated in any other currency, (a) the central bank for the currency in which such Benchmark Replacement is denominated or any
central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator
of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank
for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible
for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group
of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Relevant Rate” means (i) with
respect to any Term Benchmark Borrowing denominated in Dollars, the Adjusted Term SOFR Rate, (ii) with respect to any Term Benchmark
Borrowing denominated in Euros, the Adjusted EURIBOR Rate, (iii) with respect to any Term Benchmark Borrowing denominated in Yen,
the Adjusted TIBOR Rate, or (iv) with respect to any Borrowing denominated in Sterling, the applicable Adjusted Daily Simple RFR,
as applicable.
“Relevant Screen Rate” means
(i) with respect to any Term Benchmark Borrowing denominated in Dollars, the Term SOFR Reference Rate, (ii) with respect to
any Term Benchmark Borrowing denominated in Euros, the EURIBOR Screen Rate or (iii) with respect to any Term Benchmark Borrowing
denominated in Yen, the TIBOR Screen Rate, as applicable.
“Reorganization” means, with
respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
“Repayment Amount” has the
meaning assigned to such term in the definition of “Incremental Amount.”
“Replacement Lender” has the
meaning assigned to such term in Section 2.16(c).
“Replacement Revolving Facilities”
has the meaning assigned to such term in Section 2.20(c).
“Replacement Revolving Facility Commitments”
has the meaning assigned to such term in Section 2.20(c).
“Replacement Revolving Facility Effective
Date” has the meaning assigned to such term in Section 2.20(c).
“Replacement Revolving Loans”
has the meaning assigned to such term in Section 2.20(c).
“Repricing Event” means (i) any
prepayment or repayment of Term B-1 Loans with the proceeds of, or
conversion of all or any portion of the Term B-1 Loans into, any
new or replacement term loans bearing interest with an All-in Yield less than the All-in Yield applicable to the Term B-1
Loans subject to such event (as such comparative yields are determined by the Administrative Agent); provided that in no
event shall any prepayment or repayment of Term B-1 Loans in connection
with a Change of Control, a Transformative Acquisition, a Transformative Disposition or a Qualified IPO constitute a Repricing Event
and (ii) any amendment to this Agreement which reduces the All-in Yield applicable to the Term B-1
Loans (it being understood that any prepayment premium with respect to a Repricing Event shall apply to any required assignment
by a Non-Consenting Lender in connection with any such amendment pursuant to Section 2.16(c)); provided, the primary purpose
of such prepayment, repayment or amendment is to reduce the All-in Yield as set forth above.
“Required Asset Sale Percentage”
means, with respect to any Net Proceeds of any Asset Sale or Recovery Event required to be applied pursuant to Section 2.08(c)(1),
100%; provided that, if the First Lien Net Leverage Ratio as of the most recently ended Test Period after giving effect to such
Asset Sale or Recovery Event is (x) less than or equal to 2.90 to 1.00 but greater than 2.40 to 1.00, such percentage shall be 50%
or (y) less than or equal to 2.40 to 1.00, such percentage shall be 0%.
“Required ECF Percentage” means,
with respect to any Excess Cash Flow Period, 50%; provided that, if the First Lien Net Leverage Ratio as of the end of such Excess
Cash Flow Period is (x) less than or equal to 2.90 to 1.00 but greater than 2.40 to 1.00, such percentage shall be 25% or (y) less
than or equal to 2.40 to 1.00, such percentage shall be 0%.
“Required Financial Covenant Lenders”
means, at any time, Lenders having Revolving Commitments (or if the Revolving Commitments have terminated, Total Revolving Exposure outstanding)
and Term A Loans that, taken together, represent more than 50% of the sum of all Revolving Commitments (or, if the Revolving Commitments
have terminated, Total Revolving Exposure outstanding at such time) and Term A Loans; provided, that the Revolving Commitments,
Total Revolving Exposure, Term A Commitments and Term A Loans outstanding of any Defaulting Lender shall be disregarded in determining
Required Financial Covenant Lenders at any time.
“Required Lenders” means, at
any time, subject to the penultimate paragraph and the last paragraph under Section 7.01, Lenders having Term Loans and Revolving
Commitments (or, if the Revolving Commitments have terminated, Total Revolving Exposure outstanding) that, taken together, represent
more than 50% of the sum of (x) all Term Loans and (y) all Revolving Commitments (or, if the Revolving Commitments have terminated,
Total Revolving Exposure outstanding) at such time; provided, that the Term Loans, Revolving Commitments and Total Revolving Exposure
of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Requirements of Law” means,
as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any
law, treaty, rule, regulation or official administrative pronouncement or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property
is subject.
“Resolution Authority” means
an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible
Officer” means the president, Financial Officer or other executive officer of the Borrower
“Restricted Payment” means
(a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the
Borrower or any Restricted Subsidiary, (b) any payment (whether in cash, securities or other property), including any sinking fund
or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests
of the Borrower or any option, warrant or other right to acquire any such Equity Interests or (c) any Junior Debt Restricted Payment.
“Restricted Subsidiary” means
any subsidiary of the Borrower other than Unrestricted Subsidiaries.
“Retained
Excess Cash Flow” means the cumulative amount of Excess Cash Flow for any completed Excess Cash Flow Period minus the amount of
Term Loans required to be repaid from such Excess Cash Flow under Section 2.08.
“Revocation” has the meaning
assigned to such term in the definition of “Unrestricted Subsidiary.”
“Revolving Commitment” means,
as to any Revolving Lender, the obligation of such Revolving Lender to make Revolving Loans and purchase participation interests in Letters
of Credit in an aggregate principal amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite
such Lender’s name on Schedule 1.01A or in the Assignment and Assumption or Incremental Assumption Agreement pursuant to which
such Revolving Lender became a party hereto, as the same may be changed from time to time pursuant to the terms of this Agreement (including
as increased, extended or replaced as provided in Section 2.02, 2.19 and 2.20). The aggregate Dollar Amount of all Revolving Commitments
on the Closing Date is $150,000,000.
“Revolving Commitment Percentage”
means, with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Revolving Commitment at such
time to the Total Revolving Commitments at such time.
“Revolving Commitment Period”
means the period from and including the Closing Date to the Revolving Termination Date.
“Revolving Facility” means
the credit facility constituted by the Revolving Commitments and the extensions of credit thereunder.
“Revolving Fee Payment Date”
means (a) the third Business Day following the last day of each March, June, September and December during the Revolving
Commitment Period and (b) the last day of the Revolving Commitment Period.
“Revolving Lender” means each
Lender that has a Revolving Commitment or that holds Revolving Loans.
“Revolving Loans” has the meaning
assigned to such term in Section 2.01(a).
“Revolving Termination Date”
means the fifth anniversary of the Closing Date.
“Rollover
Term B Lender” means each Term B Lender with a Term B Loan extended on the Closing Date that has consented to exchange such Term
B Loan into a Term B-1 Loan, and that has been allocated such Refinancing Term B-1 Loan by the Administrative Agent.
“RFR” means, for any RFR Loan
denominated in (a) Sterling, SONIA, and (b) Dollars, Daily Simple SOFR.
“RFR Administrator” means the
SONIA Administrator, or the SOFR Administrator.
“RFR Borrowing” means, as to
any Borrowing, the RFR Loans comprising such Borrowing.
“RFR Business Day” means, for
any Loan denominated in (a) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks
are closed for general business in London and (b) Dollars, a U.S. Government Securities Business Day.
“RFR Interest Day” has the
meaning specified in the definition of “Daily Simple RFR”.
“RFR Loan” means a Loan that
bears interest at a rate based on the Adjusted Daily Simple RFR.
“Sanctioned Country” means,
at any time, a country, region or territory which is itself the subject or target of any Sanctions (at
the time of this Agreementon Amendment No. 1 Effective
Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas
of the Kherson and Zaporizhzhia regions of Ukraine, Crimea, Cuba, Iran, North Korea and Syria).
“Sanctioned Person” means,
at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets
Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union
or HerHis Majesty’s
Treasury, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by
any such Person or Persons described in the foregoing clauses (a) or (b).
“Sanctions” means all economic
or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including
those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or
(b) the United Nations Security Council, the government of Canada,
the European Union or HerHis
Majesty’s Treasury of the United Kingdom.
“SEC” means the Securities
and Exchange Commission or any successor thereto.
“Secured Net Leverage Ratio”
means, as of any date of determination, the ratio of (i) Indebtedness of the Borrower and its Restricted Subsidiaries (other
than any Securitization Subsidiary) secured by a Lien on any assets of the Borrower and its Restricted Subsidiaries (other
than any Securitization Subsidiary) as of the last day of the Test Period most recently ended on or prior to such date of determination
(as set forth on the balance sheet and determined on a consolidated basis in accordance with GAAP) minus the amount of unrestricted
cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries (other
than any Securitization Subsidiary) on such date in an amount not to exceed $250,000,000 to (ii) Consolidated EBITDA for
such Test Period.
(A) The Secured Net Leverage Ratio shall
be calculated for any period after giving effect on a pro forma basis (as if they had occurred on the first day of the applicable
Test Period) to:
(1) the
incurrence of any Indebtedness of the Borrower or any Restricted Subsidiary (other
than any Securitization Subsidiary) (and the application of the proceeds thereof) and any repayment, repurchase, defeasance or
other discharge of Indebtedness (and the application of the proceeds therefrom) (other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant to any revolving credit arrangement) occurring during the applicable
Test Period or at any time subsequent to the last day of such Test Period and on or prior to the date of determination, as if such incurrence,
repayment, issuance or redemption, as the case may be (and the application of the proceeds thereof and
all transactions and events in connection therewith), occurred on the first day of the Test Period;
(2) any
(wv) Asset Sale,
(xw) asset sale
if the Fair Market Value of the assets sold in such transaction or series of related transactions exceeds $2,000,000, which is solely
excluded from the definition of Asset Sale pursuant to clause (7) of such definition, (yx)
Asset Acquisition, (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of the Borrower or any Restricted Subsidiary
(including any Person who becomes a Restricted Subsidiary as a result of such Asset Acquisition or as a result of ay)
operational changes or restructurings or (z) Designation or Revocation)) incurring Indebtedness
pursuant to Section 6.01(j) and also including any Consolidated EBITDA associated,
in each case including all transactions and events in connection with any such
Asset Acquisition) or (z) operational restructuringevent
(each a “pro forma event”) occurring during the Test Period or at any time subsequent to the last day of the
Test Period and on or prior to the date of determination as if such pro forma event occurred on the first day of the Test Period, including
any cost savings and cost synergies resulting from head count reduction, closure of facilities and similar operational and other cost
savings, cost synergies, operating expense reductions, restructurings, cost savings initiatives or other initiatives relating to such
pro forma event occurring (or expected, in the good faith determination of the Borrower, to result from actions that have been taken
or initiated or expected to be taken) (x) in the case of any actions that have
been taken or initiated or are expected to be taken (x) in connection
with the Transactions, within 36 months of the Closing Date, or (y) otherwise,
within 24 months of such pro forma event and during such period or subsequent to such period and on or prior to the date of such
calculation, in each case that are expected to have a continuing impact and are factually supportable, and which adjustments the Borrower
determines are reasonable as set forth in an Officer’s Certificate; provided that the aggregate amount of all such cost
savings and cost synergies pursuant to this clause (A)(2) and clause (i) of the second paragraph of the definition of “Consolidated
EBITDA” shall in no event exceed 25.0% of Consolidated EBITDA (after giving effect to such adjustment) for any Test Period; provided,
further, that asset sales described in clause (A)(2)(x) in an aggregate amount not to exceed $80,000,000 in any Test Period
shall not be required to be given pro forma effect; and
(3) the
amount of any loss or pre-opening expenses attributable to a New Project, until the date that is 12 months after the date of completing
the construction, acquisition, assembling or creation of such New Project, as the case may be; provided that (i) such losses
or pre-opening expenses are reasonably identifiable and factually supportable, (ii) losses or preopening expenses attributable to
such New Project after 12 months from the date of completing such construction, acquisition, assembling or creation, as the case may
be, shall not be included in this clause (3) and (iii) the aggregate amount of all adjustments pursuant to this clause (3) and
clause (ii) of the second paragraph of the definition of “Consolidated EBITDA” shall not exceed $20,000,000 in any Test
Period; and
(B) in
calculating Consolidated Interest Expense for purposes of the Secured Net Leverage Ratio with respect to any Indebtedness being given
pro forma effect:
(1) interest
on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on
the date of determination;
(2) if
interest on any Indebtedness actually incurred on the date of determination 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 rates, then the interest rate in effect on the date
of determination will be deemed to have been in effect during the Test Period;
(3) notwithstanding
clause (1) or (2) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered
by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation
of the agreements governing such Hedging Obligations;
(4) interest
on any Indebtedness under a revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during
the Test Period; and
(5) interest
on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting
Officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
“Secured Parties” has the meaning
assigned to such term in the Security Agreement.
“Securitization”
means any transaction or series of transactions entered into by any Group Member pursuant to which such Group Member sells, conveys,
assigns, grants an interest in or otherwise Disposes, to a Securitization Subsidiary, Securitization Assets (and/or grants a security
interest in such Securitization Assets Disposed or purported to be Disposed to such Securitization Subsidiary), and which Securitization
Subsidiary finances the acquisition of such Securitization Assets with (i) cash, (ii) the issuance to any Group Member of Seller’s
Retained Interests or an increase in such Seller’s Retained Interests, (iii) proceeds from the sale, collection or other Disposition
of Securitization Assets and/or (iv) proceeds from the sale or issuance of Securitization Asset backed securities or other interests
therein; provided that no portion of the Indebtedness or any other obligations (contingent or otherwise) under such Securitization (x) is
guaranteed by a Group Member (excluding guarantees of obligations pursuant to Standard Securitization Undertakings), other than any Securitization
Subsidiary, (y) creates recourse to, or obligates, any Group Member in any way (other than pursuant to Standard Securitization Undertakings),
other than any Securitization Subsidiary or (z) subjects any property or asset (other than Securitization Assets or the Equity Interests
of any Securitization Subsidiary) of any Group Member (other than a Securitization Subsidiary), directly or indirectly, contingently
or otherwise, to be applied in satisfaction thereof (other than pursuant to Standard Securitization Undertakings).
“Securitization
Assets” means (a) any right to payment (including accounts receivable) owed to the Borrower or any Restricted Subsidiary (whether
now existing or arising or acquired in the future) created or arising from the sale or lease of goods or services no matter how evidenced
and whether or not earned by performance (whether constituting accounts, general intangibles, chattel paper or otherwise) and (b) all
collateral securing such right to payment, all contracts and contract rights and all guarantees or other obligations in respect of such
right to payment, all proceeds of such right to payment, all records with respect to such right to payment, and all other assets which
are of the type customarily transferred, or in respect of which security interests are customarily (as determined by the Borrower) granted,
in connection with securitizations of accounts receivable or accounts receivables purchase or factoring transactions and which are sold,
transferred, conveyed or otherwise Disposed (or purported to be Disposed) by the Borrower or a Restricted Subsidiary to a Securitization
Subsidiary.
“Securitization
Subsidiary” means (a) a subsidiary of the Borrower which is designated to the Administrative Agent by written notice from
the Borrower and to which a Group Member sells, conveys, transfers or otherwise Disposes to, or grants a security interest in, Securitization
Assets, and which Person is formed for the limited purpose of effecting one or more Securitizations involving the Securitization Assets
and related activities, and (b) any subsidiary of any subsidiary described in clause (a).
“Security Agreement” means
the Security Agreement dated as of the Closing Date among the Borrower, the Subsidiary Guarantors from time to time party thereto, and
JPMorgan Chase Bank, N.A., as collateral agent.
“Seller’s
Retained Interest” means, in respect of a Securitization, the debt or equity interests held by any Group Member in a Securitization
Subsidiary to which Securitization Assets have been transferred or otherwise Disposed, including any such debt or equity received as
consideration for or as a portion of the purchase price for the Securitization Assets so Disposed, or any other instrument through which
any Group Member has rights to or receives distributions in respect of any residual or excess interest in the Securitization Assets.
“Senior Co-Managers” means,
in connection with the Term B-1 Facility, Citigroup Global Markets
Inc., Goldman Sachs Bank USA, PNC Capital Markets LLC, and Société Générale.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means
the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website”
means the NYFRB’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing
rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has
the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate Day” has the meaning
specified in the definition of “Daily Simple SOFR”.
“SONIA” means, with respect
to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator
on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator” means
the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website”
means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight
Index Average identified as such by the SONIA Administrator from time to time.
“Specified Representations”
means the representations and warranties set forth in Section 3.01 (only as it relates to the valid existence and good standing
of the Loan Parties), Section 3.02, Section 3.03(b) (only as it relates to the charter, by-laws or other
organizational documents of the Borrower), Section 3.08, Section 3.12 (only as it relates to the creation, validity,
and perfection and
priority (subject to Permitted Liens) of security interests in the Collateral) and Section 3.17 (limited
to use of proceeds only).
“Specified Swap Agreement”
means any Swap Agreement in respect of interest rates or currency exchange rates entered into by the Borrower or any Restricted Subsidiary
and any Person that (i) at the time such Swap Agreement is entered into is a Lender or an Agent Party or an Affiliate of a Lender
or an Agent Party or (ii) in the case of any such Swap Agreement in effect on or prior to the Closing Date, is, as of the Closing
Date, a Lender or an Agent Party or an Affiliate of a Lender or an Agent Party, unless, when entered into, such Swap Agreement is designated
in writing by the Borrower and such Lender or Agent Party or Affiliate of a Lender or Agent Party to the Administrative Agent to not
be included as a Specified Swap Agreement.
“Specified Time” means approximately
11:00 a.m., London time.
“Standard & Poor’s”
means Standard & Poor’s Financial Services LLC.
“Standard
Securitization Undertakings” means representations, warranties, covenants, repurchase obligations and indemnities entered into
by a Group Member which are reasonably customary (as determined by the Borrower) for a seller or servicer of assets transferred in connection
with a Securitization.
“Statutory Reserve Rate” means
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 percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with respect to the Adjusted EURIBOR Rate or the Adjusted TIBOR
Rate, as applicable, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board) . Such reserve percentage shall include those imposed pursuant to such Regulation D. Term Benchmark Loans shall be deemed to constitute
eurocurrency funding 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 or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Sterling” and “£”
mean the lawful currency of the United Kingdom.
“subsidiary” means, with respect
to any Person (the “parent”):
(1) any
corporation, limited liability company, association or other business entity of which more than 50% of the total voting power of the
Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors thereof
is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person (or
a combination thereof); and
(2) any
partnership (a) the sole general partner or the managing general partner of which is such Person or a subsidiary of such Person
or (b) the only general partners of which are such Person or one or more subsidiaries of such Person (or any combination thereof).
“Subsidiary Guarantor” means
each Domestic Subsidiary that is a party to the Guarantee Agreement; provided that, notwithstanding anything to the contrary,
no Excluded Subsidiary shall be required to be a Subsidiary Guarantor of any obligations under this Agreement.
“Successor Borrower” has the
meaning assigned to such term in Section 6.03(vi).
“Supported QFC” has the meaning
assigned to it in Section 9.20.
“Swap Agreement” means any
agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing
indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions;
provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former
directors, officers, employees or consultants of the Borrower or the Restricted Subsidiaries shall be a Swap Agreement.
“Swap Obligation” means, with
respect to any Subsidiary Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Target” has the meaning assigned
to such term in the recitals to this Agreement.
“TARGET Day” means any day
on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment
system ceases to be operative, such other payment system reasonably determined by the Administrative Agent to be a suitable replacement)
is open for the settlement of payments in Euro.
“Taxes” means all present or
future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
“Term A Commitment” means,
as to any Term A Loan Lender, the commitment of such Term A Lender to make Term A Loans to the Borrower pursuant to Section 2.01(b) in
an aggregate principal amount set forth opposite such Term A Lender’s name on Schedule 1.01A or in the Assignment and Assumption
pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms of this Agreement
(including as increased, extended or replaced as provided in Section 2.02, 2.19 and 2.20). The aggregate amount of all Term A Commitments
as of the Closing Date is $350,000,000.
“Term A Facility” means, at
any time (a) prior to the Closing Date, the sum of the aggregate amount of the Term A Commitments at such time and (b) thereafter,
the aggregate principal amount of the Term A Loans of all Term A Lenders outstanding at such time.
“Term A Lender” means a Lender
with a Term A Commitment or an outstanding Term A Loan.
“Term A Loan” means a Term
Loan made pursuant to a Term A Commitment.
“Term A Loan Maturity Date”
December 1, 2026.
“Term
B-1 Facility” means the credit facility for Term B-1 Loans described in Section 2.01(d) hereof.
“Term
B-1 Lender” means a Lender with an outstanding Term B-1 Commitment or an outstanding Term B-1 Loan.
“Term
B-1 Loan” means an Additional Term B-1 Loan and any other Loan that is deemed made pursuant to Section 2.01(d) hereof.
The aggregate principal amount of the Term B-1 Loans as of the Amendment No. 1 Effective Date is $1,182,500,000.
“Term
B-1 Loan Commitment” means, with respect to a Lender, the agreement of such Lender to exchange the entire principal amount of its
Term B Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Term B-1 Loans on the
Amendment No. 1 Effective Date.
“Term
B-1 Maturity Date” means the date that is seven years from the Closing Date.
“Term B Commitment” means,
as to any Term B Lender, the obligation of such Term B Lender to make Term B Loans to the Borrower pursuant to Section 2.01(c) in
an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01A or in the Assignment
and Assumption or Incremental Assumption Agreement pursuant to which such Term B Lender became a party hereto as the same may be changed
from time to time pursuant to the terms of this Agreement (including as increased, extended or replaced as provided in Section 2.02,
2.19 and 2.20). The aggregate amount of all Term B Commitments as of the Closing Date is $1,250,000,000.
“Term B Facility” means the
credit facility constituted by the Term B Commitments and the Term B Loans thereunder.
“Term B Lender” means each
Lender that has a Term B Commitment or that holds Term B Loans.
“Term B Loan Standstill Period”
has the meaning assigned to such term in Section 7.01(d).
“Term B Loans” means the Term
Loans made pursuant to the Term B Commitment. All Term B Loans shall be
repaid in full or exchanged for Term B-1 Loans on the Amendment No. 1 Effective Date pursuant to Amendment No. 1 and Section 2.01(d).
“Term B Maturity Date” means
the date that is seven years from the Closing Date.
“Term Benchmark” when
used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the Adjusted TIBOR Rate.
“Term Facility” means a credit
facility in respect of Term Loans hereunder including the Term A Facility and,
the Term B Facility and the Term B-1 Facility.
“Term Lender” means each Lender
that has a Term Loan Commitment or that holds Term Loans.
“Term Loan Commitment” means
any Commitment in respect of Term Loans including the Term B Commitments and the Term A Commitments.
“Term Loans” means the Term
A Loans, the Term B Loans, the Term B-1 Loans, any Incremental Term
Loan, Extended Term Loan or other Refinancing Term Loans incurred
hereunder.
“Term SOFR Determination Day”
has the meaning assigned to it under the definition of “Term SOFR Reference Rate”.
“Term SOFR Rate” means, with
respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the Term
SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement
of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate”
means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing
denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum determined by the Administrative
Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term
SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement
Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will
be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such
Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than
five (5) Business Days prior to such Term SOFR Determination Day.
“Term Yield Differential” has
the meaning assigned to such term in Section 2.02(b)(v).
“Test Period” means the four
consecutive fiscal quarter period most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or
(b); provided that, prior to the first date that financial statements shall have been delivered pursuant to Section 5.01,
the Test Period in effect shall be the period of four consecutive fiscal quarters of the Borrower ended September 30, 2021. A Test
Period may be designated by reference to the last day thereof (i.e. the September 30, 2021 Test Period refers to the period
of four consecutive fiscal quarters of the Borrower ended September 30, 2021), and a Test Period shall be deemed to end on the last
day thereof.
“Testing Condition” shall be
satisfied if either (x) $1.00 or more of Revolving Loans or Term A Loans are outstanding or (y) the outstanding face amount
of undrawn Letters of Credit (excluding Letters of Credit that have been cash collateralized at 102.0% of the face value thereof) exceeds
an amount equal to $25,000,000.
“TIBOR Interpolated Rate” means,
at any time, with respect to any Term Benchmark Borrowing denominated in Yen and for any Interest Period, the rate per annum determined
by the Administrative Agent (which determination shall be in its reasonable discretion) to be equal to the rate that results from interpolating
on a linear basis between: (a) the TIBOR Screen Rate for the longest period (for which the TIBOR Screen Rate is available for Yen)
that is shorter than the Impacted TIBOR Rate Interest Period; and (b) the TIBOR Screen Rate for the shortest period (for which the
TIBOR Screen Rate is available for Yen) that exceeds the Impacted TIBOR Rate Interest Period, in each case, at such time.
“TIBOR Rate” means, with respect
to any Term Benchmark Borrowing denominated in Yen and for any Interest Period, the TIBOR Screen Rate at approximately 11:00 a.m., Japan
time two Business Days prior to the commencement of such Interest Period; provided that, if the TIBOR Screen Rate shall not be available
at such time for such Interest Period (an “Impacted TIBOR Rate Interest Period”) with respect to Yen then the TIBOR
Rate shall be the TIBOR Interpolated Rate..
“TIBOR Screen Rate” means the
Tokyo interbank offered rate administered by the Ippan Shadan Hojin JBA TIBOR Administration (or any other person which takes over the
administration of that rate) for the relevant currency and period displayed on page DTIBOR01 of the Reuters screen (or, in the event
such rate does not appear on such Reuters page or screen, on any successor or substitute page on such screen that displays
such rate, or on the appropriate page of such other information service that publishes such rate as selected by the Administrative
Agent from time to time in its reasonable discretion) as published at approximately 1:00 p.m. Japan time two Business Days prior
to the commencement of such Interest Period.
“Total Assets” means, as of
any date of determination, the total assets of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance
with GAAP, as set forth on the most recent consolidated balance sheet of the Borrower as of such date (which calculation shall give pro
forma effect to any acquisition or asset sale by the Borrower or any of its Restricted Subsidiaries, in each case involving the payment
or receipt by the Borrower or any of its Restricted Subsidiaries of consideration (whether in the form of cash or non-cash consideration)
in excess of $80,000,000 that has occurred since the date of such consolidated balance sheet, as if such acquisition or asset sale had
occurred on the last day of the fiscal period covered by such balance sheet).
“Total Percentage” means, with
respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the
Aggregate Exposure of all Lenders at such time.
“Total Revolving Commitments”
means, at any time, the aggregate principal amount of the Revolving Commitments then in effect.
“Total Revolving Exposure”
means, at any time, the sum of the Total Revolving Loans and LC Exposure outstanding at such time.
“Total Revolving Loans” means,
at any time, the aggregate principal amount of the Revolving Loans of the Revolving Lenders outstanding at such time.
“Transactions” means the (a) the
consummation of the Merger; (b) execution, delivery and performance by the Borrower of this Agreement, (c) the execution, delivery
and performance by the Loan Parties of the other Loan Documents, and (d) the borrowing of Loans and the use of proceeds thereof.
“Transformative
Acquisition” means any acquisition or Investment by the Borrower or any Restricted Subsidiary that (a) has a Fair Market
Value in excess of $425,000,000 or (b) (i) is not permitted hereunder immediately prior to the consummation of such acquisition,
or (ii) if permitted by the terms hereunder immediately prior to the consummation of such acquisition or investment, this Agreement
would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility for the continuation and/or expansion of their
combined operations following such consummation or acquisition, as determined by the Borrower acting in good faith.
“Transformative
Disposition” means any Disposition by the Borrower or any Restricted Subsidiary that (a) is not permitted hereunder immediately
prior to the consummation of such Disposition or (b) if permitted by the terms hereunder immediately prior to the consummation of
such Disposition, would not provide the Borrower and its Restricted Subsidiaries with a durable capital structure following such consummation,
as determined by the Borrower acting in good faith.
“Type”, when used in reference
to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate, the Adjusted TIBOR Rate, the Alternate Base Rate or the Adjusted
Daily Simple RFR.
“UK Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by
the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority” means
the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“UK Scheme” means the UK “occupational
pension scheme” (within in the meaning given to that term by section 181 of the UK Pension Schemes Act 1993) referred to in the
Merger Agreement as the IPC Media Pension Scheme.
“Unadjusted Benchmark Replacement”
means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unrestricted Subsidiary” means
(a) any subsidiary of the Borrower listed on Schedule 1.01B, (b) any subsidiary of the Borrower that is designated as an Unrestricted
Subsidiary by the Borrower after the Closing Date in a written notice to the Administrative Agent and (c) any subsidiary of any
subsidiary described in clause (a) or (b) above; provided that (i) no Default shall have occurred and be continuing
at the time of or after giving effect to the designation of a subsidiary as an Unrestricted Subsidiary (a “Designation”)
and (ii) at the time of and immediately after giving effect to such Designation, the Borrower shall be in compliance with Section 6.10
(whether or not the Testing Condition is satisfied); provided, further, that no subsidiary shall be designated as an Unrestricted
Subsidiary unless (w) no creditor of such subsidiary shall have any claim (whether pursuant to a Guarantee or otherwise) against
the Borrower or any of its Restricted Subsidiaries in respect of any Indebtedness or other obligation (except for obligations arising
by operation of law, including joint and several liability for taxes, ERISA and similar items) of such subsidiary (collectively, “Unrestricted
Subsidiary Support Obligations”), except pursuant to Investments which are made in accordance with Section 6.11; (x) such
subsidiary is not party to any transaction with the Borrower or any Restricted Subsidiary unless the terms of such transaction complies
with Section 6.06 and (y) no Investments may be made in any such subsidiary by the Borrower or any Restricted Subsidiary except
to the extent permitted under Section 6.11 (it being understood that, if a subsidiary is designated as an Unrestricted Subsidiary
after the Closing Date, the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries
in the subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall be subject to the
limits set forth in Section 6.11)). It is understood that Unrestricted Subsidiaries shall be disregarded for the purposes of any
calculation pursuant to this Agreement relating to financial matters with respect to the Borrower.
The Borrower may revoke the designation of a subsidiary
as an Unrestricted Subsidiary pursuant to a written notices to the Administrative Agent so long as, after giving pro forma effect
to such revocation, (i) the Consolidated Net Leverage Ratio shall be less than or equal to the Consolidated Net Leverage Ratio then
required to be maintained by the Borrower pursuant to Section 6.10 (whether or not the Testing Condition is satisfied) and (ii) no
Default shall be in existence (a “Revocation”). Upon any Revocation, such Unrestricted Subsidiary shall constitute
a Restricted Subsidiary for all purposes of this Agreement and the Borrower shall comply with Section 5.09 if such subsidiary is
a Material Domestic Subsidiary. In the case of any Revocation, if the designation of such subsidiary as an Unrestricted Subsidiary caused
the available basket amount referred to in Section 6.11) to be utilized by an amount equal to the aggregate Fair Market Value of
all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the subsidiary so designated (the amount so utilized,
the “Designation Amount”), then, effective upon such Revocation, such available basket amount shall be increased by
the lesser of (i) the Designation Amount and (ii) the aggregate Fair Market Value of all outstanding Investments owned by the
Borrower and its Restricted Subsidiaries in such subsidiary at the time of such Revocation.
Notwithstanding anything to the contrary in this
definition, no Unrestricted Subsidiary may own Material Intellectual Property and no subsidiary may be designated as an Unrestricted
Subsidiary if it owns any Material Intellectual Property.
“Unrestricted Subsidiary Support Obligations”
has the meaning assigned to such term in the definition of “Unrestricted Subsidiary.”
“U.S. Government Securities Business
Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry
and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes
of trading in United States government securities.
“U.S. Lender” means any Lender
that is a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes”
has the meaning assigned to it in Section 9.20.
“U.S. Tax Compliance Certificate”
has the meaning assigned to such term in Section 2.14(e)(ii)(B)(3).
“Voting Stock” means the stock
of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at
least a majority of the Board of Directors of the Borrower (irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any contingency).
“Weighted Average Life to Maturity”
when applied to any Indebtedness at any date, means 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 payment of principal,
including payment at final maturity, in respect thereof by (ii) the number of years (calculated to the nearest one-twelfth) that
shall elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness.
“Wholly Owned Subsidiary” means
a subsidiary of which 100% of the Equity Interests (except for directors’ qualifying shares or certain minority interests owned
by other Persons solely due to local law requirements that there be more than one stockholder, but which interest is not in excess of
what is required for such purpose) are owned directly by the Borrower or through one or more Wholly Owned Subsidiaries and, solely for
the purpose of the definition of “Material Domestic Subsidiary,” excluding any subsidiary whose sole assets are Equity Interests
in one or more subsidiaries that are not Wholly Owned Subsidiaries.
“Withdrawal Liability” means
liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined
in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers”
means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from
time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described
in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority
under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract
or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that
person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under
it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to
or ancillary to any of those powers.
“Yen” and “¥”
mean the lawful currency of Japan.
SECTION 1.02 Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term
Loan”) or by Type (e.g., a “Term Benchmark Loan”) or by Class and Type (e.g., a “Term Benchmark
Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term Borrowing”) or by
Type (e.g., a “Term Benchmark Borrowing”) or by Class and Type (e.g., a “Term Benchmark Term Borrowing”).
SECTION 1.03 Terms
Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented, restated, amended and restated, extended
or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,”
“hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights. The foregoing standards shall also apply to the other Loan Documents.
SECTION 1.04 Accounting
Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that for purposes of any determinations associated with leases,
including, without limitation, determinations of whether such leases are capital leases, whether obligations under such leases are Capital
Lease Obligations, the amount of any Capital Lease Obligations associated with such leases, and the amount of operating expenses associated
with such leases, Consolidated EBITDA, Consolidated Interest Expense, Indebtedness, the Consolidated Net Leverage Ratio, the First
Lien Net Leverage Ratio and the Secured Net Leverage Ratio shall be determined based on generally accepted accounting principles in the
United States of America in effect on December 31, 2018; provided, further, that, if the Borrower notifies the Administrative
Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing
Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that
the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before
or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect
and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.
SECTION 1.05 Change
of Currency. Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative
Agent may from time to time specify after consultation with the Borrower to be appropriate to the extent necessary to reflect a change
in currency of any country and any relevant market conventions or practices relating to such change in currency.
SECTION 1.06 Currency
Equivalents Generally.
(a) Unless
the context otherwise requires, any amount specified in this Agreement to be in Dollars shall also include the Dollar Amount of any Alternative
Currency. The maximum amount of Indebtedness and other threshold amounts that the Borrower and its Restricted Subsidiaries may incur
under Article VI shall not be deemed to be exceeded, with respect to any outstanding Indebtedness and other threshold amounts solely
as a result of fluctuations in the exchange rate of currencies. When calculating capacity for the incurrence of additional Indebtedness
and other threshold amounts by the Borrower and any Restricted Subsidiary, the exchange rate of currencies shall be measured as of the
date of such calculation.
(b) (i) The
Administrative Agent shall determine the Dollar Amount of any Letter of Credit denominated in an Alternative Currency as of the date
of the issuance thereof, on the first Business Day of each calendar month on which such Letter of Credit is outstanding and the date
of any amendment thereto that has the effect of increasing the face amount thereof, in each case using the Exchange Rate in effect on
the date of determination, and each such amount shall be the Dollar Amount of such Letter of Credit until the next required calculation
thereof pursuant to this Section. The Administrative Agent shall in addition determine the Dollar Amount of any Letter of Credit denominated
in an Alternative Currency as provided in Sections 2.17(e) and 2.17(l).
(ii) The
Administrative Agent shall determine the Dollar Amount of any Borrowing denominated in an Alternative Currency on or about the date of
the commencement of the initial Interest Period therefor and as of the date of the commencement of each subsequent Interest Period therefor,
in each case using the Exchange Rate in effect on the date of determination, and each such amount shall, except as provided in the next
sentence, be the Dollar Amount of such Borrowing until the next required calculation thereof pursuant to this Section.
(iii) The
Administrative Agent may also determine the Dollar Amount of any Borrowing or Letters of Credit denominated in an Alternative Currency
as of such other dates as the Administrative Agent shall determine, in each case using the Exchange Rate in effect on the date of determination,
and each such amount shall be the Dollar Amount of such Borrowing or Letter of Credit until the next calculation thereof pursuant to
this Section.
(iv) The
Administrative Agent shall notify the Borrower, the applicable Lenders and the Issuing Bank of each determination of the Dollar Amount
of each Letter of Credit, Borrowing and LC Disbursement.
(c) Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit
in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of
any other document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter
of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether
or not such maximum stated amount is in effect at such times.
SECTION 1.07 Certain
Determinations.
(a) Notwithstanding
anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a
provision of any covenant in this Agreement that does not require compliance with a financial ratio or test (including any Consolidated
Net Leverage Ratio, any First Lien Net Leverage Ratio or any Secured Net Leverage Ratio) (any such amounts, the “Fixed Amounts”)
substantially concurrently or in a series of related transactions with any amounts incurred or transactions entered into (or consummated)
in reliance on a provision in such covenant that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence
Based Amounts”), it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof) in such covenant shall
be disregarded in the calculation of the financial ratio or test applicable to the Incurrence Based Amounts in such covenant in connection
with such incurrence, but full pro forma effect shall be given to all applicable and related transactions (including the use of proceeds
of all Indebtedness to be incurred and any repayments, repurchases and,
redemptions and other retirements of Indebtedness) and all
other permitted pro forma adjustments. Notwithstanding anything herein to the contrary, if at any time any applicable ratio or financial
test for any category based on an Incurrence Based Amount permits Indebtedness, Liens, Restricted Payments, Asset Sales, Sale and Leasebacks
and Investments, as applicable, previously incurred under a category based on a Fixed Amount, such Indebtedness, Liens, Restricted Payments,
Asset Sales, Sale and Leasebacks and Investments, as applicable, shall be deemed to have been automatically reclassified as incurred
under such category based on an Incurrence Based Amount.
(b) The
Borrower may elect, pursuant to an Officer’s Certificate delivered to the Administrative Agent to treat all or any portion of any
revolving commitment or undrawn commitment under any Indebtedness as being incurred and outstanding at such time and for so long as such
commitments remain outstanding (regardless of whether then drawn), in which case any subsequent incurrence of Indebtedness under such
commitment shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time.
SECTION 1.08 Limited
Condition Transactions.
(a) In
connection with any action being taken in connection with a Limited Condition Transaction (other than a Borrowing of Revolving Loans
or an issuance of a Letter of Credit), for purposes of determining compliance with any provision of this Agreement which requires that
no Default or 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 or Event of Default, as applicable, exists
on the date (i) the definitive agreement for such Limited Condition Transaction is entered into, (ii) irrevocable notice of
redemption, purchase, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity Interests
or Preferred Stock is given, (iii) solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and
Mergers applies, on which a “Rule 2.7 announcement” of a firm intention to make an offer is published on a regulatory
information service in respect of a target of a Limited Condition Transaction or (iv) of any declaration of a distribution or dividend
in respect of, or irrevocable advance notice of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value,
any Equity Interests of the Borrower or any parent entity. For the avoidance of doubt, if the Borrower has exercised its option under
the first sentence of this clause (a), and any Default or Event of Default, as applicable, occurs following the date (i) the definitive
agreement for the applicable Limited Condition Transaction is entered into, (ii) irrevocable notice of redemption, purchase, repurchase,
defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity Interests or Preferred Stock is given, (iii) solely
in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, on which a “Rule 2.7
announcement” of a firm intention to make an offer is published on a regulatory information service in respect of a target of a
Limited Condition Transaction, or (iv) of any declaration of a distribution or dividend in respect of, or irrevocable advance notice
of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value, any Equity Interests of the Borrower or any
parent entity, and, in each case, prior to the consummation of such Limited Condition Transaction, any such Default or Event of Default,
as applicable, 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 Transaction is permitted hereunder.
(b) In
connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:
(i) determining
compliance with any provision of this Agreement which requires the calculation of the Consolidated Net Leverage Ratio, the First Lien
Net Leverage Ratio or the Secured Net Leverage Ratio ; or
(ii) testing
baskets set forth in this Agreement (including baskets measured as a percentage of Total Assets or 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 Transaction, an “LCT Election”), the date
of determination of whether any such action is permitted hereunder, shall be deemed to be the date (i) the definitive agreement
for such Limited Condition Transaction is entered into, (ii) irrevocable notice of redemption, purchase, repurchase, defeasance,
satisfaction and discharge or repayment of Indebtedness, Disqualified Equity Interests or Preferred Stock is given, (iii) solely
in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, on which a “Rule 2.7
announcement” of a firm intention to make an offer is published on a regulatory information services in respect of a target of
a Limited Condition Transaction or (iv) of any declaration of a distribution or dividend in respect of, or irrevocable advance notice
of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value, any Equity Interests of the Borrower or any
parent entity, as applicable (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition
Transaction and the other transactions to be entered into in connection therewith (including any incurrence or discharge of Indebtedness
and the use of proceeds of such incurrence) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters
ending prior to the LCT Test Date for which consolidated financial statements of the Borrower are available, the Borrower could have
taken such action on the relevant LCT Test Date in compliance with such ratio, basket or amount, such ratio, basket or amount shall be
deemed to have been complied with; provided that (a) if such financial statements for one or more subsequent fiscal quarters
shall have become available, the Borrower may elect, in its sole discretion, to redetermine all such ratios, baskets or amounts (including
as to the absence of any continuing Default or Event of Default) on the basis of such financial statements, in which case, such date
of redetermination shall thereafter be deemed to be the applicable LCT Test Date for purposes of such ratios, baskets or amounts and
(b) except as contemplated in the foregoing clause (a), compliance with such ratios, baskets or amounts (and any related requirements
and conditions) (including as to the absence of any continuing Default or Event of Default) shall not be determined or tested at any
time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transactions being taken in connection
therewith (including any incurrence or discharge of Indebtedness and the use of proceeds of such incurrence). For the avoidance of doubt,
if the Borrower has made an LCT Election and any of the ratios, baskets or amounts for which compliance was determined or tested as of
the LCT Test Date is exceeded as a result of fluctuations in any such ratio, basket or amount, including due to fluctuations in Consolidated
EBITDA or Total Assets of the Borrower or the Person subject to such Limited Condition Transaction or any applicable currency exchange
rate, at or prior to the consummation of the relevant transaction or action, such baskets, ratios or amounts will not be deemed to have
been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then
in connection with any subsequent calculation of any ratio, basket or amount (other than the testing of any ratio for purposes of Section 6.10
and the definition of “Pricing Grid”) on or following the relevant LCT Test Date and prior to the earlier of the date on
which such Limited Condition Transaction is consummated or the definitive agreement for such Limited Condition Transaction is terminated
or expires without consummation of such Limited Condition Transaction, any such ratio, basket or amount shall be calculated on a pro
forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or discharge
of Indebtedness and the use of proceeds thereof) have been consummated.
SECTION 1.09 Interest
Rates; Benchmark Notification. The interest rate on a Loan denominated in Dollars or an Alternative Currency may be derived from
an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence
of a Benchmark Transition Event, Section 2.11(b) provides a mechanism for determining an alternative rate of interest. The
Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration,
submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or
successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any
such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the
existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance
or unavailability.
SECTION 1.10 Divisions.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable
event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the
subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired
on the first date of its existence by the holders of its Equity Interests at such time.
ARTICLE II
The Credits
SECTION 2.01 Commitments.
(a) Subject
to the terms and conditions hereof, from time to time during the Revolving Commitment Period, each Revolving Lender severally agrees
to make to the Borrower revolving credit loans denominated in Dollars or an Alternative Currency (“Revolving Loans”) in an
aggregate principal amount that will not result at the time of such Borrowing in the Dollar Amount of such Lender’s Outstanding
Revolving Credit under the Revolving Commitments exceeding such Lender’s Revolving Commitment. During the Revolving Commitment
Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be Term Benchmark Loans, RFR Loans
or, in the case of Revolving Loans in Dollars, ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance
with Sections 2.03 and 2.05. Each Revolving Loan under the Revolving Commitments shall be made as part of a Borrowing consisting of Revolving
Loans made by the Revolving Lenders thereunder ratably in accordance with their respective Revolving Commitments. The failure of any
Revolving Lender to make any Revolving Loan required to be made by it shall not relieve any other Revolving Lender of its obligations
hereunder; provided that the Revolving Commitments of the Revolving Lenders are several and no Revolving Lender shall be responsible
for any other Revolving Lender’s failure to make Revolving Loans as required. When more than one Class of Revolving Loans
exists, each Borrowing of Revolving Loans shall be made pro rata across each Class.
(b) Subject
to the terms and conditions hereof, each Term A Lender agrees to make a Term A Loan in Dollars to the Borrower on the Closing Date in
an aggregate principal amount equal to its Term A Commitment. The Term A Loans may be Term Benchmark Loans or ABR Loans. Term A Loans
that are repaid or prepaid may not be reborrowed.
(c) Subject
to the terms and conditions hereof, each Term B Lender severally agrees to make a Term B Loan in Dollars to the Borrower on any Business
Day on the Closing Date in an amount not to exceed such Term B Lender’s Term B Commitment. The Term B Loans may be Term Benchmark
Loans or ABR Loans. Term B Loans that are repaid or prepaid may not be reborrowed. Subject
to the terms and conditions hereof, each Term B-1 Lender severally agrees to make a Term B-1 Loan in Dollars to the Borrower on the Amendment
No. 1 Effective Date in an amount not to exceed such Term B-1 Lender’s Term B-1 Commitment. The Term B-1 Loans may be Term
Benchmark Loans or ABR Loans. Term B-1 Loans that are repaid or prepaid may not be reborrowed.
(d) Subject
to the terms and conditions set forth herein and in Amendment No. 1, each Rollover Term B Lender severally agrees to exchange its
Exchanged Term B Loans for a like principal amount of Term B-1 Loans on the Amendment No. 1 Effective Date. Subject to the terms
and conditions set forth herein and in Amendment No. 1, each Additional Term B-1 Lender severally agrees to make an Additional Term
B-1 Loan to the Borrower on the Amendment No. 1 Effective Date in the principal amount equal to its Additional Term B-1 Commitment
on the Amendment No. 1 Effective Date. The Borrower shall prepay the Non-Exchanged Term B Loans with a like amount of the gross
proceeds of the Additional Term B-1 Loans, concurrently with the receipt thereof. The Borrower shall pay to the Term B Lenders immediately
prior to the effectiveness of Amendment No. 1 all accrued and unpaid interest on the Term B Loans to, but not including, the Amendment
No. 1 Effective Date on such Amendment No. 1 Effective Date. The Term B-1 Loans shall have the same terms as the Term B Loans
as set forth herein and Loan Documents before giving effect to Amendment No. 1, except as modified by Amendment No. 1; it being
understood and confirmed that the Term B-1 Loans (and all principal, interest and other amounts in respect thereof) constitute “Obligations”
hereunder and under the other Loan Documents and shall have the same rights and obligations hereunder and under the Loan Documents as
the Term B Loans prior to the Amendment No. 1 Effective Date, except as modified by Amendment No. 1. As provided in Section 2.05
and subject to the terms hereof, the Borrower may elect that the Term B-1 Loans comprising the Borrowing hereunder of Term B-1 Loans
be either ABR Loans or Term Benchmark Loans.
(e) (d) At
the commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate principal amount that
is an integral multiple of $1,000,000 and not less than $5,000,000 (or comparable amounts determined by the Administrative Agent in the
case of Alternative Currency). At the time that each ABR Borrowing and/or RFR Borrowing is made, such Borrowing shall be in an aggregate
principal amount that is an integral multiple of the Dollar Amount of $1,000,000 and not less than the Dollar Amount of $5,000,000; provided
that an ABR Borrowing may be in an aggregate principal amount that is equal to the entire unused balance of the Commitments of any
Class. Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of 15 Term Benchmark Borrowings outstanding.
SECTION 2.02 Incremental
Revolving Commitments and Incremental Term Loans.
(a) The
Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental
Revolving Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans
are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental
Revolving Commitments are established (except, in each case, as set forth in Section 1.08) from one or more Incremental Term Lenders
and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate
in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender
in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the
case may be, in their sole discretion; provided that each Incremental Revolving Lender providing a commitment to make revolving
loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under
Section 9.05, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set
forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall
be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each
case, such lesser amount approved by the Administrative Agent) and (ii) the date on which such Incremental Term Loan Commitments
and/or Incremental Revolving Commitments are requested to become effective.
(b) The
Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an
Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative
Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving
Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental
Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any
Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or
mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms and pursuant to the same documentation
applicable to the Revolving Commitments,
(ii) the
Incremental Revolving Commitments and Incremental Term Loans shall not be guaranteed by any subsidiaries of the Borrower that do not
guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the
Obligations,
(iii) the
scheduled final maturity date of any Customary Term A Facility shall be no earlier than the Term A Loan Maturity Date and the scheduled
final maturity date of any other Incremental Term Facility shall be no earlier than the scheduled final maturity date of any then outstanding
Term Loans (in each case other than an earlier maturity date for customary bridge financings, which, subject to customary conditions,
would be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity
date than the dates specified above,
(iv) no
Incremental Facility (other than a Customary Term A Facility) shall require scheduled amortization payments (excluding the final installment
thereof) in excess of 1.00% per annum of the original aggregate principal amount thereof; and
(v) any
Incremental Term Facility (other than in the case of a Customary Term A Facility, which shall reflect market terms and conditions (taken
as a whole) for a term “A” loan at the time (as determined by the Borrower in good faith) and shall have no financial maintenance
covenant of a different type than the financial covenant set forth in Section 6.10, and no financial maintenance covenants that
are more restrictive to the Borrower than the financial covenant set forth in Section 6.10, as determined in good faith by the Borrower,
unless the Revolving Lenders shall also benefit from such financial maintenance covenant) shall be on terms (other than pricing, amortization,
maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Term B Facility or
otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no
financial maintenance covenants of a different type than the financial covenant set forth in Section 6.10, and no financial maintenance
covenants that are more restrictive than the financial covenant set forth in Section 6.10, as determined in good faith by the Borrower
and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than
those applicable to the Facilities as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such
terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this
Agreement for the benefit of all then existing Lenders (unless such terms are of the type customarily applicable only to term loans in
which case they will be incorporated for the benefit of existing Term Lenders only) (without further amendment requirements) or (II) become
applicable only after the Revolving Facility shall have matured or been terminated and any Loans existing on the date of the initial
incurrence of (or commitment in respect of) such Incremental Term Facility have been paid in full; provided, however, with
respect to any Incremental Term Loans (other than Incremental Term Loans in respect of a Customary Term A Facility), the All-in Yield
shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental
Term Loans that are incurred within six months of the Closing Date may exceed the All-in Yield in respect of the Term B Loans and
Term B-1 Loans by no more than 0.75%, or if such Incremental Term Loans incurred within six months of the Closing Date do exceed
such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Rate (or the “SOFR floor”
as provided in the following proviso) applicable to the Term B Loans and
Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed
0.75%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor”
being applicable to such Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential
to the extent such floor is greater than the Term Benchmark Rate in effect at such time, and, with respect to such excess, the “SOFR
floor” applicable to the outstanding Term B Loans and Term B-1 Loans
shall be increased to an amount not to exceed the “SOFR floor” applicable to such Incremental Term Loans prior to
any increase in the Applicable Rate applicable to such Term B Loans and
Term B-1 Loans then outstanding.
(c) Each
party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Document
(including any Collateral Document) shall be amended or amended and restated to the extent (but only to the extent) necessary to reflect
the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby as provided
for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to
effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Loans)
and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing
between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) [Reserved].
(e) Notwithstanding
the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.02
unless (i) subject to Section 1.08, no Event of Default shall exist after giving pro forma effect to such Incremental Term
Loan Commitment or Incremental Revolving Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; provided
that in the event that any tranche of Incremental Facilities that are used to finance an acquisition permitted hereunder, to the
extent the Lenders participating in such Incremental Facility (the “Incremental Lenders”) agree, the foregoing clause
(i) shall be tested at the time of the execution of the acquisition agreement related to such acquisition (provided that
such Incremental Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect
to such Incremental Facility); (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing
is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with
if a Borrowing is made on such date); and (iii) the Administrative Agent shall have received documents and legal opinions consistent
with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative
Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(f) Upon
each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately
prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing
a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate
outstanding participations hereunder in Letters of Credit held by each Lender (including each such Incremental Revolving Lender) will
equal such Lender’s Revolving Commitment Percentage and if, on the date of such increase, there are any Revolving Loans outstanding,
such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitments either be prepaid from the proceeds
of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, reflecting such Incremental
Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after
giving effect to such increase), which prepayment or assignment shall be accompanied by accrued interest on the Revolving Loans being
prepaid. 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. If there is a new Revolving Borrowing on such Incremental Revolving Commitment closing date, the Revolving Lenders
after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
SECTION 2.03 Procedure
for Borrowing.
(a) To
request a Revolving Borrowing, a Term A Loan Borrowing or ,
a Term B Loan Borrowing or a Term B-1 Loan Borrowing, on any
Business Day, the Borrower shall notify the Administrative Agent of such request (x) in the case of ABR Loans, by telephone or electronic
means (which notice must be received by the Administrative Agent prior to 12:00 noon, New York City time on the requested Borrowing Date)
or (y) (i) in the case of a Term Benchmark Borrowing denominated in Dollars, not later than 12:00 p.m., New York City time,
three Business Days before the date of the proposed Borrowing, (ii) in the case of an RFR Borrowing denominated in Dollars, not
later than 12:00 p.m., New York City time, five Business Days before the date of the proposed Borrowing, (iii) in the case of a
Term Benchmark Borrowing denominated in Euros or Yen, not later than 12:00 p.m., New York City time, three Business Days before the date
of the proposed Borrowing, (iv) in the case of an RFR Borrowing denominated in Sterling, not later than 12:00 p.m., New York City
time, five RFR Business Days before the date of the proposed Borrowing (each such request, a “Borrowing Request”).
Any Borrowing Request shall be irrevocable (but may be conditioned on the occurrence of any event if the borrowing request includes a
description of such event; provided that the relevant Lenders shall still be entitled to the benefits of Section 2.13) and
any telephonic Borrowing Request shall be confirmed promptly in writing. Each such telephonic and written Borrowing Request shall specify
the amount, currency and Type of Borrowing to be borrowed and the requested Borrowing Date. Upon receipt of such Borrowing Request, the
Administrative Agent shall promptly notify each relevant Lender thereof. For the avoidance of doubt, subject to Section 2.11, each
Borrowing shall be comprised entirely of ABR Loans, Term Benchmark Loan or RFR Loans as the Borrower may request in accordance herewith.
(b) If
no election as to the Type of Borrowing is specified for a Borrowing in Dollars, then the requested Borrowing shall be an ABR Borrowing.
If no Interest Period is specified with respect to any requested Term Benchmark Borrowing, then the Borrower shall be deemed to have
selected an Interest Period of one month’s duration. If no currency is specified for a Revolving Borrowing, the requested Borrowing
shall be in Dollars. In making any determination of the Dollar Amount for purposes of calculating the amount of Revolving Loans to be
borrowed from the respective Lenders on any date, the Administrative Agent shall use the relevant Exchange Rate in effect on the date
on which the Borrower delivers a Borrowing Request for such Revolving Loans pursuant to the provisions of Section 2.03(a).
SECTION 2.04 Funding
of Borrowings.
(a) Each
Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds (x) in
the case of any Loan denominated in Dollars, by 3:00 p.m. New York City time and (y) in the case of any Loan denominated in
an Alternative Currency, by 12:00 noon local time in the place of settlement for such Alternative Currency, in each case to the account
of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained
with the Administrative Agent in New York City or to any other account as shall have been designated by the Borrower in writing to the
Administrative Agent in the applicable Borrowing Request. Each Lender at its option may make any Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of
the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date
such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation
in the relevant currency or (ii) in the case of the Borrower, the interest rate applicable to such Loans in the case of a Loan in
Dollars or the interest rate applicable to such Borrowing in the case of a Revolving Loan in an Alternative Currency. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
(c) The
obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Sections
8.09 and 9.04(c) are several and not joint. The failure of any Lender to make any Loan or to fund any such participation or to make
any payment under Section 8.09 or 9.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and, other than pursuant to Section 2.18, no Lender shall be responsible for the failure of any
other Lender to so make its Loan or, to fund its participation or to make its payment under Section 8.09 or 9.04(c).
SECTION 2.05 Interest
Elections.
(a) Each
Borrowing initially shall be of the Type and currency specified in the applicable Borrowing Request, and each Term Benchmark Borrowing
in Dollars or an Alternative Currency shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert any Borrowing denominated in Dollars to a different Type or to continue such Borrowing as the same Type and may
elect successive Interest Periods for any Term Benchmark Borrowing in Dollars or, in the case of Revolving Loans, an Alternative Currency,
all as provided in this Section. The Borrower may elect different Types or Interest Periods, as applicable, with respect to different
portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the relevant Lenders holding the
Loans comprising the relevant portion of such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To
make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time
that a request for a Borrowing would be required under Section 2.03, if the Borrower were requesting a Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly in writing.
(c) Each
telephonic and written Interest Election Request shall specify (i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing), (ii) the effective date of the election made pursuant to such Interest Election Request, which shall
be a Business Day, (iii) in the case of a Borrowing denominated in Dollars, whether the resulting Borrowing is to be an ABR Borrowing,
a Term Benchmark Borrowing or, in the case of Revolving Loans, RFR Loans, and (iv) if the resulting Borrowing is a Term Benchmark
Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of the term “Interest Period.” If any such Interest Election Request requests a Term Benchmark Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each relevant Lender of the details thereof
and of such Lender’s portion of each resulting Borrowing.
(e) If
the Borrower fails to deliver a timely Interest Election Request with respect to a Term Benchmark Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing
shall be continued as such for an Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Borrowing in Dollars may be converted to or continued as a Term
Benchmark Borrowing and (ii) unless repaid, each Term Benchmark Borrowing and each RFR Borrowing, in each case denominated in Dollars,
shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (iii) each Term Benchmark Borrowing
and each RFR Borrowing, in each case, denominated in an Alternative Currency shall bear interest at the Central Bank Rate for the applicable
Alternative Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be
conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Agreed Currency cannot be determined, any
outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall either be (A) converted to an ABR Borrowing
denominated in Dollars (in an amount equal to the Dollar Amount of such Alternative Currency) at the end of the Interest Period, as applicable,
therefor or (B) prepaid at the end of the applicable Interest Period, as applicable, in full; provided that if no election
is made by the Borrower by the earlier of (x) the date that is three Business Days after receipt by the Borrower of such notice
and (y) the last day of the current Interest Period for the applicable Term Benchmark Loan, the Borrower shall be deemed to have
elected clause (A) above.
SECTION 2.06 Termination
and Reduction of Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative
Agent, to terminate the Commitments of any Class or, from time to time, to reduce the amount of the Commitments of any Class; provided
that no such termination or reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments
of the Revolving Loans made on the effective date thereof, the Outstanding Revolving Credits would exceed the Total Revolving Commitments.
Any such reduction shall be in an amount equal to an integral multiple of $1,000,000 and not less than $5,000,000 and shall reduce permanently
the Commitments of such Class then in effect; provided further, that the aggregate Term A Commitments and the aggregate Term
B Commitments, in each case, immediately prior to the Closing Date, shall each be automatically and permanently reduced to zero on the
Closing Date. ; provided
even further, that the aggregate Term B-1 Commitments immediately prior to the Amendment No. 1 Effective Date, shall be automatically
and permanently reduced to zero on the Amendment No. 1 Effective Date.
SECTION 2.07 Repayment
of Loans; Evidence of Debt.
(a) Any
Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to such Lender or its registered assigns and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.05) be represented by one or more promissory notes in such form payable to such payee or its registered assigns.
(b) The
Borrower unconditionally promises to pay the then unpaid principal amount of each Revolving Loan on the Revolving Termination Date.
(c) The
Borrower shall repay principal of outstanding Term A Loans on the last Business Day of each March, June, September and December of
each year (commencing on the applicable day of the first full fiscal quarter of the Borrower after the Closing Date) and on the Term
A Loan Maturity Date, in an aggregate principal amount of such Term A Loans equal to (A) in the case of quarterly payments due prior
to the Term A Loan Maturity Date, an amount equal to a percentage determined in accordance with the then Applicable Amortization Rate
of the aggregate principal amount of Term A Loans incurred on the Closing Date, and (B) in the case of such payment due on the Term
A Loan Maturity Date, an amount equal to the then unpaid principal amount of Term A Loans outstanding. The Borrower shall repay principal
of outstanding Term B Loans on the last Business Day of each March, June, September and December of each year (commencing on
the applicable day of the first full fiscal quarter of the Borrower after the Closing Date) and on the Term B Maturity Date, in an aggregate
principal amount of such Term AB
Loans equal to (A) in the case of quarterly payments due prior to the Term B Maturity Date, an amount equal to a per annum
rate of 1.00% the aggregate principal amount of Term B Loans incurred on the Closing Date, and (B) in the case of such payment due
on the Term B Maturity Date, an amount equal to the then unpaid principal amount of Term B Loans outstanding. The
Borrower shall repay principal of outstanding Term B-1 Loans on the last Business Day of each March, June, September and December of
each year (commencing on March 31, 2026) and on the Term B-1 Maturity Date, in an aggregate principal amount of such Term B-1 Loans
equal to (A) in the case of quarterly payments due prior to the Term B-1 Maturity Date, an amount equal to a per annum rate of 1.00%
of the aggregate principal amount of Term B-1 Loans incurred on the Amendment No. 1 Effective Date, and (B) in the case of
such payment due on the Term B-1 Maturity Date, an amount equal to the then unpaid principal amount of Term B-1 Loans outstanding.
(d) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(e) The
Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the currency and
Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become
due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the relevant Lenders and each relevant Lender’s share thereof.
(f) The
entries made in the accounts maintained pursuant to paragraph (c) or (d) of this Section shall be conclusive absent manifest
error of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement.
SECTION 2.08 Prepayments.
(a) The
Borrower may at any time and from time to time prepay Loans, in whole or in part, without premium or penalty (except as specifically
provided in the last sentence of this Section 2.08(a)), upon notice delivered to the Administrative Agent (1) no later than
12:00 noon, New York City, not less than three Business Days prior thereto in the case of Term Benchmark Loans, (2) no later than
12:00 noon, New York City time, on the date of such notice, in the case of ABR Loans, (3) no later than 12:00 noon, New York City,
not less than three Business Days prior thereto in the case of Term Benchmark Loans denominated in Euros or Yen, (4) no later than
12:00 noon, New York City, not less than five Business Days prior thereto in the case of RFR Loans denominated in Dollars and (5) no
later than 12:00 noon, New York City time, not less than five RFR Business Days prior thereto in the case of RFR Loans denominated in
Sterling, which notice shall specify the date and amount of prepayment and the Loans to be prepaid; provided that, if a Term Benchmark
Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.13. Each such notice may be conditioned on the occurrence of one or more events (it being understood
that the Administrative Agent and Lenders shall be entitled to assume that the Loans contemplated by such notice are to be made unless
the Administrative Agent shall have received written notice revoking such notice of prepayment on or prior to the date of such prepayment).
Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date
on the amount prepaid. Partial prepayments of Loans shall be in an aggregate principal amount that is an integral multiple of $1,000,000
and not less than $5,000,000 (or comparable amounts determined by the Administrative Agent in the case of Alternative Currency); provided
that, notwithstanding anything herein to the contrary, the Borrower may make a prepayment of any Term Loans in an amount equal to
the next succeeding quarterly amortization payment related to such Term Loan. In the case of each prepayment of Loans pursuant to this
Section 2.08(a), the Borrower may in its sole discretion select the Loans (of any Class) to be repaid, and such prepayment shall
be paid to the appropriate Lenders in accordance with their respective pro rata share of such Loans. If any Repricing Event occurs prior
to the date occurring 6 months after the ClosingAmendment
No. 1 Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with
Term B-1 Loans that are subject to such Repricing Event (including
any Lender which is replaced pursuant to Section 2.16(c) as a result of its refusal to consent to an amendment giving rise
to such Repricing Event), a fee in an amount equal to 1.00% of the aggregate principal amount of the Term B-1
Loans subject to such Repricing Event. Such fees shall be earned, due and payable upon the date of, and shall be subject to, the
occurrence of such Repricing Event.
(b) If
at any time for any reason the sum of the Dollar Amount of Outstanding Revolving Credit exceeds the Total Revolving Commitments, the
Borrower shall upon learning thereof, or upon the request of the Administrative Agent, immediately prepay the Revolving Loans in an aggregate
principal amount at least equal to the amount of such excess; provided that solely with respect to any excess resulting from currency
exchange rate fluctuations, this Section 2.08(b) shall not apply unless, on the last day of any fiscal quarter of the Borrower,
the Dollar Amount of Outstanding Revolving Credit exceeds the Total Revolving Commitments by more than 2.5% as a result of such fluctuations.
(c) The
Borrower shall apply (1) the Required Asset Sale Percentage of Net Proceeds (other than Net Proceeds of the kind described in the
following clause (2)) within five (5) Business Days after receipt thereof to prepay Term Loans in accordance with clauses (e) and
(f) below and (2) all Net Proceeds from any issuance or incurrence of Refinancing Term Loans and Replacement Revolving Facility
Commitments, no later than three (3) Business Days after the date on which such Refinancing Term Loans and/or Replacement Revolving
Facility Commitments are incurred, to prepay Term Loans and/or Revolving Commitments in accordance with Section 2.20. Notwithstanding
anything to the contrary herein, mandatory prepayments with respect to Net Proceeds received by a Foreign Subsidiary of the Borrower
pursuant to this clause (c) shall be (x) net of any additional Taxes paid, or estimated by the Borrower in good faith to be
payable, as a result of the repatriation of such proceeds, to the extent not already taken into account in the definition of “Net
Proceeds”, and (y) not required to the extent that the Borrower determines in good faith that such repatriation would result
in adverse Tax consequences that are not de minimis or would be prohibited or restricted by applicable Requirements of Law; provided
that, (i) the Borrower shall use commercially reasonable efforts to eliminate such Tax effects in respect of such repatriation
and (ii) once the repatriation of any such funds is permitted under the applicable Requirements of Law and no longer results in
adverse Tax consequences that are not de minimis, an amount equal to such Net Proceeds will be promptly applied (net of additional Taxes
payable or reserved against as a result thereof, to the extent not already taken into account in the definition of “Net Proceeds”)
to the prepayment of the Term Loans in accordance with this Section 2.08.
(d) Not
later than five (5) Business Days after the date on which the annual financial statements are, or are required to be, delivered
under Section 5.01(a) with respect to each Excess Cash Flow Period, the Borrower shall calculate Excess Cash Flow for such
Excess Cash Flow Period and, if and to the extent the amount of such Excess Cash Flow is greater than the
greater of (x) $80,000,000 and (y) 25% of Consolidated
EBITDA for the then most recently ended Test Period, the Borrower shall apply an amount to prepay Term Loans (other than the Term
A Loans) equal to (i) the Required ECF Percentage of Excess Cash Flow minus (ii) the sum of, without duplication, including
with respect to any amounts deducted in any prior Excess Cash Flow Period or deducted in the calculation of Excess Cash Flow (A) to
the extent not financed using the proceeds of funded Indebtedness, the amount of any voluntary payments of Term Loans and amounts used
to repurchase outstanding principal of Term Loans during such Excess Cash Flow Period (plus, without duplication of any amounts
previously deducted under this clause (ii), the amount of any such voluntary payments and amounts so used to repurchase principal of
Term Loans after the end of such Excess Cash Flow Period but before the date of prepayment under this clause (d)) pursuant to Sections
2.08(a) and 2.21 (it being understood that the amount of any such payments pursuant to Section 2.21 shall be calculated to
equal the amount of cash used to repay principal and not the principal amount deemed prepaid therewith), (B) to the extent not financed
using the proceeds of funded Indebtedness, the amount of any voluntary payments of Revolving Loans to the extent that Revolving Commitments
are terminated or reduced pursuant to Section 2.06 by the amount of such payments, (C) to the extent not financed using the
proceeds of funded Indebtedness, the amount of any voluntary prepayments, repurchases or redemptions (limited to the purchase price thereof
) of Other First Lien Debt and Junior Debt (in the case of revolving Indebtedness, to the extent accompanied by a permanent commitment
reduction) during such Excess Cash Flow Period (plus, without duplication of any amounts previously deducted under this clause
(ii), the amount of any such voluntary prepayments, repurchases or redemptions (limited to the purchase price thereof) of Other First
Lien Debt and Junior Debt (in the case of revolving Indebtedness, to the extent accompanied by a permanent commitment reduction) after
the end of such Excess Cash Flow Period but before the date of prepayment under this clause (d), (D) the amount of Capital Expenditures
or acquisitions of Intellectual Property made in cash during such period by the Borrower and its Restricted Subsidiaries to the extent
not financed using the proceeds of funded Indebtedness (other than under the Revolving Facility), (E) the aggregate amount of cash
consideration paid by the Borrower and the Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions)
made during such period pursuant to Section 6.11 to the extent not financed using the proceeds of funded Indebtedness (other than
under the Revolving Facility), and (F) the amount of Restricted Payments during such period (on a consolidated basis) by the Borrower
and its Restricted Subsidiaries made in compliance with Section 6.05 to the extent not financed using the proceeds of funded Indebtedness
(other than under the Revolving Facility). Such calculation will be set forth in an Officer’s Certificate delivered to the Administrative
Agent setting forth the amount, if any, of Excess Cash Flow for such Excess Cash Flow Period, the amount of any required prepayment in
respect thereof and the calculation thereof in reasonable detail.
(e) Amounts
to be applied in connection with prepayments of Term Loans pursuant to this Section 2.08 shall be applied to the prepayment of the
Term Loans in accordance with Section 2.15(b) until paid in full. In connection with any mandatory prepayments by the Borrower
of the Term Loans pursuant to this Section 2.08, such prepayments shall be applied on a pro rata basis to the then outstanding Term
Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Term Benchmark Loans; provided that with
respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (i) first to Term Loans that are
ABR Loans to the full extent thereof before application to Term Loans that are Term Benchmark Loans in a manner that minimizes the amount
of any payments required to be made by the Borrower pursuant to Section 2.13 and (ii) on a pro rata basis with respect to each
Class of Term Loans except to the extent any Incremental Assumption Agreement, Extension Amendment or Refinancing Amendment provides
that the Class of Term Loans incurred thereunder is to receive less than its pro rata share, in which case such prepayment shall
be allocated to such Class of Term Loans as set forth in such Incremental Assumption Agreement, Extension Amendment or Refinancing
Amendment and to the other Classes of Term Loans on a pro rata basis. Each prepayment of the Term Loans under this Section 2.08
shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(f) The
Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Section 2.08(c)(1) or
2.08(d) at least four (4) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such
prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify
each Term Lender of the contents of any such prepayment notice and of such Term Lender’s ratable portion of such prepayment (based
on such Lender’s pro rata share of each relevant Class of the Term Loans). Any Term Lender (a “Declining Term Lender,”
and any Term Lender which is not a Declining Term Lender, an “Accepting Term Lender”) may elect, by delivering written notice
to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Term Lender’s
receipt of notice from the Administrative Agent regarding such prepayment, that the full amount of any mandatory prepayment otherwise
required to be made with respect to the Term Loans held by such Term Lender pursuant to Section 2.08(c)(1) or 2.08(d) not
be made (the aggregate amount of such prepayments declined by the Declining Term Lenders, the “Declined Prepayment Amount”).
If a Term Lender fails to deliver notice setting forth such rejection of a prepayment to the Administrative Agent within the time frame
specified above or such notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed
an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Prepayment Amount shall be retained by the
Borrower. For the avoidance of doubt, the Borrower may, at its option, apply any amounts retained in accordance with the immediately
preceding sentence to prepay loans in accordance with Section 2.08(a).
(g) Any
prepayment of Term Loans of any Class shall be applied (i) in the case of prepayments made pursuant to Section 2.08(a),
to reduce the subsequent scheduled repayments of the Term Loans of such Class to be made pursuant to Section 2.07 as directed
by the Borrower, or as otherwise provided in any Extension Amendment, any Incremental Assumption Agreement or Refinancing Amendment,
and (ii) in the case of prepayments made pursuant to Section 2.08(c) or Section 2.08(d), to reduce the subsequent
scheduled repayments of the Term Loans of such Class to be made pursuant to this Section in direct order of maturity, or as
otherwise provided in any Extension Amendment, any Incremental Assumption Agreement or Refinancing Amendment.
SECTION 2.09 Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee in Dollars for the period
from and including the Closing Date to the last day of the Revolving Commitment Period, computed at the applicable Commitment Fee Rate
on the average daily Dollar Amount of the Available Revolving Commitment of such Revolving Lender during the period for which payment
is made, payable quarterly in arrears on each Revolving Fee Payment Date, commencing on December 31, 2021.
(b) The
Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable
to Term Benchmark Loans on the average daily Dollar Amount of such Revolving Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the
date on which such Revolving Lender’s Revolving Commitment terminates and the date on which such Revolving Lender ceases to have
any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the average
daily Dollar Amount of the LC Exposure of the Letters of Credit issued by it (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any such LC Exposure, as well as the fees agreed by the Issuing Bank and
the Borrower with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees will be payable in Dollars quarterly in arrears on each Revolving Fee Payment Date, commencing on
December 31, 2021; provided that any such fees accruing after the date on which the Revolving Commitments terminate shall
be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand.
All participation fees and fronting fees shall be computed on the basis of a year of 365/366 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates as set forth in any fee agreements with the
Administrative Agent and to perform any other obligations contained therein.
(d) All
fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution to
the applicable Lenders. Fees paid shall not be refundable under any circumstances. All per annum fees shall be computed on the
basis of a year of 365/366 days for actual days elapsed; provided that commitment fees shall be computed on the basis of a year
of 360 days.
SECTION 2.10 Interest.
(a) The
Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate. The Loans comprising each
RFR Borrowing shall bear interest at the applicable Adjusted Daily Simple RFR plus the Applicable Rate.
(b) The
Loans comprising each Term Benchmark Borrowing in any currency shall bear interest at the Adjusted Term SOFR Rate, Adjusted EURIBOR Rate
or Adjusted TIBOR Rate, as applicable, for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment,
at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus
the rate applicable to ABR Loans as provided in paragraph (a) of this Section (in the case of such other amount in Dollars)
or 2% plus the daily weighted average rate of all Loans in the relevant Alternative Currency (in the case of any such other amount in
such Alternative Currency).
(d) Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in addition, in the case of Revolving
Loans, upon termination of the Revolving Commitments; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any
conversion of any Term Benchmark Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(e) Interest
computed by reference to the Term SOFR Rate, the EURIBOR Rate or Daily Simple RFR with respect to Dollars hereunder shall be computed
on the basis of a year of 360 days. Interest computed by reference to the Daily Simple RFR with respect to Sterling, the TIBOR Rate or
the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of
365 days (or 366 days in a leap year). In each case interest shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). All interest hereunder on any Loan shall be computed on a daily basis based upon the outstanding principal
amount of such Loan as of the applicable date of determination. The applicable Alternate Base Rate, Adjusted Term SOFR Rate, Adjusted
EURIBOR Rate, EURIBOR Rate, Adjusted TIBOR Rate, TIBOR Rate, Adjusted Daily Simple RFR or Daily Simple RFR shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.11 Alternate
Rate of Interest.
(a) Subject
to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
| (i) | the Administrative Agent determines (which determination shall be
conclusive absent manifest error) (A) prior to the commencement of any Interest Period
for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining
the Adjusted Term SOFR Rate, the Term SOFR Rate, the Adjusted EURIBOR Rate, the EURIBOR Rate,
the Adjusted TIBOR Rate or the TIBOR Rate, as applicable (including because the Relevant
Screen Rate is not available or published on a current basis), for the applicable Agreed
Currency and such Interest Period; provided that no Benchmark Transition Event in respect
of such Agreed Currency shall have occurred at such time or (B) at any time, that adequate
and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple RFR,
Daily Simple RFR or RFR for the applicable Agreed Currency; provided that no Benchmark Transition
Event in respect of such Agreed Currency shall have occurred at such time; or |
| (ii) | the Administrative Agent is advised by the Required Lenders that
(A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing,
the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the Adjusted TIBOR Rate, as applicable,
for the applicable Agreed Currency and such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for the applicable Agreed Currency and such Interest Period
or (B) at any time, the applicable Adjusted Daily Simple RFR for the applicable Agreed
Currency will not adequately and fairly reflect the cost to such Lenders (or Lender) of making
or maintaining their Loans (or its Loan) included in such Borrowing for the applicable Agreed
Currency; |
then the Administrative Agent shall give notice thereof to the Borrower
and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies
the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark
(A) for Loans denominated in Dollars, (1) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Borrowing shall
instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, (x) an RFR Borrowing denominated in
Dollars so long as the Adjusted Daily Simple RFR for Dollar Borrowings is not also the subject of Section 2.11(a)(i) or (ii) above
or (y) an ABR Borrowing if the Adjusted Daily Simple RFR for Dollar Borrowings also is the subject of Section 2.11(a)(i) or
(ii) above, at the Borrower’s election, and (2) any Borrowing Request that requests an RFR Borrowing shall instead be
deemed to be a Borrowing Request for an ABR Borrowing and (B) for Loans denominated in an Alternative Currency, any Interest Election
Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and any Borrowing
Request that requests a Term Benchmark Borrowing or an RFR Borrowing, in each case, for the relevant Benchmark, shall be ineffective;
provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings
shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Borrower’s
receipt of the notice from the Administrative Agent referred to in this Section 2.11 with respect to a Relevant Rate applicable
to such Term Benchmark Loan or RFR Loan, as applicable, then until (x) the Administrative Agent notifies the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers
a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms
of Section 2.03, (A) for Loans denominated in Dollars, any Term Benchmark Loan shall, on the last day of the Interest Period
applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent
to, and shall constitute, at the Borrower’s election, (x) an RFR Borrowing denominated in Dollars so long as the Adjusted
Daily Simple RFR for Dollar Borrowings is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR
Loan if the Adjusted Daily Simple RFR for Dollar Borrowings also is the subject of Section 2.11(a)(i) or (ii) above on
such day, and (B) for Loans denominated in an Alternative Currency, any Term Benchmark Loan shall, on the last day of the Interest
Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day) bear interest at the Central Bank
Rate for the applicable Alternative Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which
determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Alternative Currency
cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at the Borrower’s
election prior to such day, either: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating
the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Alternative Currency shall be deemed
to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans
denominated in Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for the applicable Alternative
Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and
binding absent manifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, any outstanding
affected RFR Loans denominated in any Alternative Currency, at the Borrower’s election, shall either (A) be converted into
ABR Loans denominated in Dollars (in an amount equal to the Dollar Amount of such Alternative Currency) immediately or (B) be prepaid
in full immediately.
(b) Notwithstanding
anything to the contrary herein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document”
for purposes of this Section 2.11), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior
to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined
in accordance with clause (1) of the definition of “Benchmark Replacement” with respect to Dollars for such Benchmark
Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect
of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party
to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of
the definition of “Benchmark Replacement” with respect to any Agreed Currency for such Benchmark Replacement Date, such Benchmark
Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at
or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided
to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document
so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders
comprising the Required Lenders.
(c) Notwithstanding
anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement
Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments
implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party
to this Agreement or any other Loan Document.
(d) The
Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the
implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the
removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of
any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable,
any Lender (or group of Lenders) pursuant to this Section 2.11, including any determination with respect to a tenor, rate or adjustment
or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or
any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent
from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding
anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark
Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate, EURIBOR Rate or TIBOR Rate) and either
(A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to
time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator
of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will
be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark
settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant
to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark
Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark
(including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all
Benchmark settings at or after such time to reinstate such previously removed tenor.
(f) Upon
the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request
for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, either (x) the Borrower will be deemed to have converted any request
for (1) a Term Benchmark Borrowing denominated in Dollars into a request for a Borrowing of or conversion to (A) an RFR Borrowing
denominated in Dollars so long as the Adjusted Daily Simple RFR for Dollar Borrowings is not the subject of a Benchmark Transition Event
or (B) an ABR Borrowing or (y) any Term Benchmark Borrowing or RFR Borrowing denominated in an Alternative Currency shall be
ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available
Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in
any determination of ABR. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the
Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable
to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement for such Agreed Currency is implemented pursuant
to this Section 2.11, (A) for Loans denominated in Dollars (1) any Term Benchmark Loan denominated in Dollars shall, on
the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day),
be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing denominated in Dollars so long as the Adjusted
Daily Simple RFR for Dollar Borrowings is not the subject of a Benchmark Transition Event or (y) an ABR Loan on such day and (2) any
RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan and (B) for Loans
denominated in an Alternative Currency, (1) any Term Benchmark Loan shall, on the last day of the Interest Period applicable to
such Loan (or the next succeeding Business Day if such day is not a Business Day) bear interest at the Central Bank Rate for the applicable
Alternative Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be
conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined,
any outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at the Borrower’s election prior to
such day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable
to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Alternative Currency shall be deemed to be a Term Benchmark
Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars
at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for the applicable Alternative Currency plus the
CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent
manifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, any outstanding affected RFR
Loans denominated in any Alternative Currency, at the Borrower’s election, shall either (A) be converted into ABR Loans denominated
in Dollars (in an amount equal to the Dollar Amount of such Alternative Currency) immediately or (B) be prepaid in full immediately.
SECTION 2.12 Increased
Costs.
(a) If
any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (including any reserve for eurocurrency funding that may be established
or reestablished under Regulation D of the Board);
(ii) impose
on any Lender any Taxes other than (A) Indemnified Taxes or Other Taxes indemnified under Section 2.14 or (B) Excluded
Taxes; or
(iii) impose
on any Lender or the London interbank market any other condition affecting this Agreement or Term Benchmark Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost
to such Lender of making, continuing, converting into or maintaining any Term Benchmark Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then
the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred
or reduction suffered.
(b) If
any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the
rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts
as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c) A
certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure
or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s
right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for
any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided,
further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.13 Break
Funding Payments. (a) With respect to Loans that are not RFR Loans, in the event of (i) the payment of any principal of
any Term Benchmark Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default
or an optional prepayment of Loans), (ii) the conversion of any Term Benchmark Loan other than on the last day of the Interest Period
applicable thereto, (iii) the failure to borrow, convert, continue or prepay any Term Benchmark Loan on the date specified in any
notice delivered pursuant hereto or (iv) the assignment of any Term Benchmark Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section 2.03, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth any amount
or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt
thereof.
(b) With respect to RFR Loans, in the event
of (i) the payment of any principal of any RFR Loan other than on the Interest Payment Date applicable thereto (including as a result
of an Event of Default or an optional prepayment of Loans), (ii) the failure to borrow or prepay any RFR Loan on the date specified
in any notice delivered pursuant hereto or (iii) the assignment of any RFR Loan other than on the Interest Payment Date applicable
thereto as a result of a request by the Borrower pursuant to Section 2.03, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth any amount or amounts
that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.14 Taxes.
(a) All
payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear
of and without deduction for any Taxes unless required by applicable Requirements of Law; provided that if any applicable withholding
agent shall be required by applicable Requirements of Law to deduct any Taxes in respect of any such payments, then (i) if such
Tax is an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Loan Party as necessary so that after all
required deductions (including deductions applicable to additional sums payable under this Section 2.14) have been made the applicable
Lender (or, in the case of a payment made to the Administrative Agent for its own account, the Administrative Agent) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the applicable withholding agent shall make such
deductions and (iii) the applicable withholding agent shall pay the full amount deducted to the relevant Governmental Authority
in accordance with applicable Requirements of Law.
(b) In
addition, without duplication of any obligation set forth in Section 2.14(a), the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Requirements of Law.
(c) Without
duplication of any obligation set forth in Section 2.14(a) or (b), the Loan Parties shall indemnify the Administrative Agent
and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Administrative
Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of any Loan Party hereunder
or under any other Loan Document and any Other Taxes paid by the Administrative Agent or such Lender (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14) and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. If the Borrower
determines that there is a reasonable basis to contest any Indemnified Tax or Other Tax for which it is responsible hereunder, without
limiting Borrower’s indemnification obligations hereunder, such Administrative Agent or Lender (as applicable) shall reasonably
cooperate in pursuing a refund of such tax (at Borrower’s expense) so long as pursuing such refund would not, in the sole reasonable
determination of such Administrative Agent or Lender, result in any additional unreimbursed costs or expenses or be otherwise disadvantageous
to the Administrative Agent or such Lender. This Section 2.14(c) shall not be construed to require the Administrative Agent
or Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower
or any other Person.
(d) As
soon as practicable after any payment of any Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.14,
the Borrower shall deliver to the Administrative Agent a copy, or if reasonably available to the Borrower a certified copy, of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
(e) (i)
Each Lender shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or
the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative
Agent as will permit such payments to be made without withholding Tax or at a reduced rate of withholding.
(ii) Without
limiting the generality of the foregoing,
(A) any
U.S. Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two
properly executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;
(B) any
Non-U.S. Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent on or prior
to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), whichever of the following is applicable to establish such Non-U.S. Lender’s
entitlement to a reduced rate of, or exemption from, withholding:
(1) two
properly executed originals of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding
Tax pursuant to an income tax treaty to which the United States is a party;
(2) two
properly executed originals of IRS Form W-8ECI;
(3) (x) two
properly executed originals of a certificate substantially in the form of Exhibit G-1 to the effect that such Non-U.S. Lender is
not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder”
of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation”
described in Section 881(c)(3)(C) of the Code, and that no payments to be received by such Lender will be effectively connected
income (a “U.S. Tax Compliance Certificate”) and (y) two properly executed originals of IRS Form W-8BEN
or W-8BEN-E; or
(4) to
the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership, or has sold a participation), two properly
executed originals of IRS Form W-8IMY, accompanied by properly executed IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E,
a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other
certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership (and
not a participating Lender), and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest
exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf
of such direct and indirect partner(s); and
(5) any
Non-U.S. Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any
other documentation prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law
to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.
(iii) If
a payment made to a Lender under this Agreement or the other Loan Documents would be subject to U.S. federal withholding Tax imposed
by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower or Administrative Agent, at the time or times prescribed
by applicable Requirements of Law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation
prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower or the Administrative
Agent to comply with its obligations under FATCA, to determine whether such Lender has or has not complied with such Lender’s obligations
under FATCA and, as necessary, to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this
Section 2.14(e)(iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each
Lender agrees that if any documentation it previously delivered pursuant to this Section 2.14(e) expires or becomes obsolete
or inaccurate in any respect, it shall promptly update such documentation or promptly notify the Borrower and the Administrative Agent
in writing of its legal ineligibility to do so. Notwithstanding any other provision of this Section 2.14(e), a Lender shall not
be required to deliver any documentation under this Section 2.14(e) that such Lender is not legally eligible to deliver.
(v) Each
Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation
provided by such Lender to the Administrative Agent pursuant to this Section 2.14(e).
(f) If
the Administrative Agent or a Lender determines, in its reasonable discretion, that it has received a refund of any Taxes or Other Taxes
as to which it has been indemnified by a Loan Party or with respect to which the Loan Party has paid additional amounts pursuant to this
Section 2.14, it shall pay over such refund to the Loan Party (but only to the extent of indemnity payments made, or additional
amounts paid, by the Loan Party under this Section 2.14 with respect to the Taxes or Other Taxes giving rise to such refund), net
of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Loan Party shall
repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority)
to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section 2.14(f) shall not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(g) For
the avoidance of doubt, the term “Lender” shall, for purposes of this Section 2.14, include any Issuing Bank.
SECTION 2.15 Pro
Rata Treatment and Payments.
(a) Each
borrowing of Revolving Loans by the Borrower from the Revolving Lenders and any reduction of the Revolving Commitments of the Revolving
Lenders shall be made pro rata according to the respective Revolving Commitments then held by the Revolving Lenders. Each payment by
the Borrower on account of any commitment fee or any letter of credit fee shall be paid ratably to the Revolving Lenders entitled thereto.
(b) Each
prepayment by the Borrower (other than any prepayment pursuant to Section 2.21) on account of principal of any Loans of any
Class shall be made pro rata according to the respective outstanding principal amounts of Loans of such Class then
held by the Lenders entitled to such payment (subject in the case of Term B Loans
to Section 2.08(f)). All repayments of principal of any Loans at stated maturity or upon acceleration shall be allocated pro
rata according to the respective outstanding principal amounts of the matured or accelerated Loans then held by the relevant
Lenders. All payments of interest in respect of any Loans shall be allocated pro rata according to the outstanding interest
payable then owed to the relevant Lenders. Notwithstanding the foregoing, (A) any amount payable to a Defaulting Lender under
this Agreement (whether on account of principal, interest, fees or otherwise but excluding any amount that would otherwise be
payable to such Defaulting Lender pursuant to Section 2.16 and Section 9.05) shall, in lieu of being distributed to such
Defaulting Lender, be retained by the Administrative Agent in a segregated interest-bearing account and, subject to any applicable
Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent: (1) first, to the
payment of any amounts owing by such Defaulting Lender to the Administrative Agent and the Issuing Bank hereunder (including amounts
owed under Section 2.09(b) or 9.04(c)), (2) second, to the funding of any Loan or LC Disbursement required by this
Agreement, as determined by the Administrative Agent, (3) third, if so determined by the Administrative Agent and Borrower,
held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement,
(4) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of such Defaulting
Lender’s breach of its obligations under this Agreement and (5) fifth, to such Defaulting Lender or as otherwise directed
by a court of competent jurisdiction, and (B) if such payment is a prepayment of the principal amount of Loans, such payment
shall be applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata (based on the amounts owing to each) prior to
being applied to the prepayment of any Loan of any Defaulting Lender.
(c) All
payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise,
shall be made without setoff or counterclaim and shall be made prior to 2:00 p.m., New York City time (or as specified in the next sentence
in the case of Loans in an Alternative Currency), on the date when due. Except as otherwise expressly provided herein, all payments by
the Borrower hereunder with respect to principal and interest on Loans in an Alternative Currency shall be made on the dates specified
herein for the pro rata account of the relevant Lenders to which such payment is owed, in such Alternative Currency and in immediately
available funds not later than the Applicable Time specified by the Administrative Agent to the Borrower by the same time at least one
Business Day prior to, the date when due. All payments received by the Administrative Agent (i) after 2:00 p.m., New York City time,
in the case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments
in an Alternative Currency, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest and fees thereon. All such payments shall be made to the Administrative Agent at its
offices at 500 Stanton Christiana Road, NCC5, 1st Floor, Newark, Delaware except that
payments pursuant to Sections 2.12, 2.13, 2.14 and 9.04 shall be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as received. If any payment hereunder becomes
due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. In the case of
any extension of any payment of principal, interest thereon shall be payable at the then Applicable Rate during such extension.
(d) If
at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest
and fees then due hereunder, such funds shall be applied (subject to the rights of the Administrative Agent to hold and apply amounts
to be paid to a Defaulting Lender in accordance with Section 2.15(b)) (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal then due to such parties. To the extent necessary, the Administrative Agent shall enter into foreign currency
exchange transactions on customary terms to effect any such ratable payment and the payments made by the Administrative Agent following
such transactions shall be deemed to be payments made by or on behalf of the Borrower hereunder.
(e) If
any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest
on any of its Loans or participations in LC Disbursements of a given Class resulting in such Lender receiving payment of a greater
proportion of the aggregate principal amount of its Loans and participations in LC Disbursements of such Class and accrued interest
thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash
at face value) participations in the Loans and participations in LC Disbursements of such Class of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Loans and participations in LC Disbursements of such Class; provided that (i) if
any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall
be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower or any other Loan Party pursuant to and in accordance with the express
terms of this Agreement and the other Loan Documents or any payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans to any assignee or participant.
SECTION 2.16 Mitigation
Obligations; Replacement of Lenders.
(a) If
any Lender requests compensation under Section 2.12, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.14 or mitigate the applicability of Section 2.21
or any event that gives rise to the operation of Section 2.21, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.12 or 2.14, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment. Each Lender may designate a different lending
office for funding or booking its Loans hereunder or assign its rights and obligations hereunder to another of its offices, branches
or affiliates; provided that the exercise of this option shall not affect the obligations of the Borrower to repay the Loan in
accordance with the terms of this Agreement.
(b) If
any Lender requests compensation under Section 2.12 or gives notice under Section 2.21, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, or if
any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.05), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received
the prior written consent of the Administrative Agent (and if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal
of its Loans and participations in unreimbursed LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.12
or payments required to be made pursuant to Section 2.14, such assignment will result in a reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
(c) If
any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, discharge
or termination which pursuant to the terms of Section 9.02 requires the consent of all of the Lenders affected and with respect
to which the Required Lenders shall have granted their consent, then the Borrower shall have the right (unless such Non-Consenting Lender
grants such consent) to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans, and its Revolving
Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent, provided that: (a) all
amounts owing to such Non-Consenting Lender being replaced (other than principal and interest) shall be paid in full to such Non-Consenting
Lender concurrently with such assignment, and (b) the replacement Lender (each such Lender, a “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. In connection with any such assignment the Borrower, Administrative Agent, such Non-Consenting Lender and the Replacement
Lender shall otherwise comply with Section 9.05.
(d) Notwithstanding
anything herein to the contrary, each party hereto agrees that any assignment pursuant to the terms of Section 2.16(c) may
be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the
Lender making such assignment need not be a party thereto.
SECTION 2.17 Letters
of Credit.
(a) General.
Subject to the terms and conditions set forth herein, the Borrower may request that standby letters of credit denominated in Dollars
or an Alternative Currency be issued under this Agreement for its own account or the account of any Restricted Subsidiary, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time during the Revolving Commitment
Period. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension, but in any event no later than three Business Days (or in
the case of Letters of Credit denominated in an Alternative Currency, five Business Days) prior to such date unless otherwise agreed
by the Issuing Bank and the Administrative Agent) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business
Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount and
currency of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall
be issued, amended, renewed or extended only if, after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $125,000,000, (ii) the Dollar Amount of the total Outstanding Revolving Credits shall not exceed the Total
Revolving Commitments, (iii) [reserved], (iv) with respect to such Issuing Bank, the sum of the aggregate face amount of Letters
of Credit issued by such Issuing Bank, when aggregated with the outstanding Revolving Loans funded by such Issuing Bank, shall not exceed
its Revolving Commitment and (v) with respect to such Issuing Bank, the sum of the aggregate face amount of Letters of Credit issued
by such Issuing Bank, when aggregated with the outstanding and unreimbursed LC Disbursements funded by such Issuing Bank, shall not exceed
its LC Commitment Amount (unless in the case of this clause (iii) such Issuing Bank agrees to do so in its sole discretion); provided
that no Issuing Bank shall be obligated to issue any trade or commercial Letters of Credit unless such Issuing Bank agrees to do
so in its sole discretion. If the Borrower so requests in any applicable letter of credit application, the Issuing Bank may, in its sole
discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank 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 Issuing Bank, the Borrower shall not be required to make
a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving
Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit expiration date referenced in clause (c) below; provided,
however, that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank 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, or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days
before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such
extension or (2) from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
The Issuing Bank shall not be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law
applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally
or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Issuing
Bank in good faith deems material to it or (B) the issuance of the Letter of Credit would violate one or more policies of the Issuing
Bank applicable to letters of credit generally.
(c) Expiration
Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Revolving Termination Date.
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action
on the part of the Issuing Bank or the Revolving Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each Revolving
Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Revolving
Commitment Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance
of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Revolving Lender’s Revolving Commitment Percentage of each LC Disbursement made by the Issuing Bank and
not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required
to be refunded to the Borrower for any reason. Such payment by the Revolving Lenders shall be made (i) if the currency of the applicable
LC Disbursement or reimbursement payment shall be Dollars, then in the currency of such LC Disbursement and (ii) subject to clause
(l) of this Section, if the currency of the applicable LC Disbursement or reimbursement payment shall be an Alternative Currency,
in Dollars in an amount equal to the Dollar Amount of such LC Disbursement or reimbursement payment, calculated by the Administrative
Agent using the Exchange Rate on the applicable LC Participation Calculation Date. Each Revolving Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement.
If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent in the currency of such LC Disbursement an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the Borrower prior to
such time on such date, then not later than 12:00 noon, New York City time, on the Business Day immediately following the day that the
Borrower receives such notice; provided that if such LC Disbursement is denominated in Dollars and is not less than $1,000,000,
the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment
be financed with an ABR Revolving Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to
make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to make such payment
when due, (A) if such payment relates to a Letter of Credit denominated in an Alternative Currency, automatically and no further
action required, the obligations of the Borrower to reimburse the applicable LC Disbursement shall be permanently converted into an obligation
to reimburse the Dollar Amount, calculated using the Exchange Rate on the applicable LC Participation Calculation Date, of such LC Disbursement
and (B) in the case of each LC Disbursement, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Revolving Lender’s Revolving Commitment Percentage thereof.
Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Revolving Commitment Percentage
of the payment then due from the Borrower, in the same manner as provided in Section 2.04 with respect to Loans made by such Revolving
Lender (and Section 2.04 shall apply, mutatis mutandis, to such payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by
the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Bank, then to such Revolving Lenders and the Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant
to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Loans as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement. If the Borrower’s
reimbursement of, or obligation to reimburse, any amounts in any Alternative Currency would subject the Administrative Agent, the Issuing
Bank or any Revolving Lender to any stamp duty, ad valorem charge or similar Tax that would not be payable if such reimbursement were
made or required to be made in Dollars, such Borrower shall pay the amount of any such Tax requested by the Administrative Agent, the
Issuing Bank or such Revolving Lender.
(f) Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any
and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing
Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of
Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder; provided that, subject to the penultimate sentence of this clause (f), reimbursement obligations of the
Borrower with respect to a Letter of Credit may be subject to avoidance by the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered
by the Borrower or any Restricted Subsidiary that are caused by the Issuing Bank’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the terms thereof. Neither the Administrative Agent, the Revolving
Lenders nor the Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery
of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing
Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent
of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree
that, in the absence of gross negligence, bad faith or willful misconduct on the part of the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance
of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear
on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either
accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information
to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms
of such Letter of Credit.
(g) Disbursement
Procedures. The Issuing Bank shall, within the period stipulated by the terms and conditions of the Letter of Credit, following its
receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. After such examination,
the Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand
for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the Revolving Lenders with respect to
any such LC Disbursement.
(h) Interim
Interest. If the Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full
on the date set forth in paragraph (e) of this Section 2.17, the unpaid amount thereof shall bear interest, for each day from
and including the date such LC Disbursement is required to be reimbursed to but excluding the date that the Borrower reimburses such
LC Disbursement, at the rate per annum set forth in Section 2.10(c)(ii). Interest accrued pursuant to this paragraph shall be for
the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph
(e) of this Section to reimburse the Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.
(i) Replacement
of the Issuing Bank. The Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.09(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to include such
successor and any previous Issuing Bank, or such successor and all previous Issuing Banks, as the context shall require. After the replacement
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required
to issue additional Letters of Credit.
(j) Additional
Issuing Banks. From time to time, the Borrower may by notice to the Administrative Agent designate any Revolving Lender (in addition
to the initial Issuing Bank) which agrees (in its sole discretion) to act in such capacity and is reasonably satisfactory to the Administrative
Agent as an Issuing Bank. Each such additional Issuing Bank shall execute a counterpart of this Agreement upon the approval of the Administrative
Agent (which approval shall not be unreasonably withheld) and shall thereafter be an Issuing Bank hereunder for all purposes.
(k) Cash
Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure demanding the deposit
of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Revolving Lenders, an amount in Dollars equal to 102% of the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that (i) the amount payable in respect of any Letter of
Credit or LC Disbursement shall be payable in the currency of such Letter of Credit or LC Disbursement, except that LC Disbursements
in an Alternative Currency in respect of which the Borrower’s reimbursement obligations have been converted in Dollars as provided
in paragraph (e) or (l) of this Section and interest accrued thereon shall be payable in Dollars, and (ii) the obligation
to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or
(i) of Section 7.01. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of
the obligations of the Borrower under this Agreement with respect to the Revolving Facility. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower
for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement with respect to the Revolving Facility. If the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured or waived.
(l) Conversion.
In the event that the Loans become immediately due and payable on any date pursuant to Section 7.01, all amounts (i) that the
Borrower are at the time or become thereafter required to reimburse or otherwise pay to the Administrative Agent in respect of LC Disbursements
made under any Letter of Credit denominated in an Alternative Currency, (ii) that the Revolving Lenders are at the time or become
thereafter required to pay to the Administrative Agent (and the Administrative Agent is at the time or becomes thereafter required to
distribute to the Issuing Bank) pursuant to paragraph (e) of this Section in respect of unreimbursed LC Disbursements made
under any Letter of Credit denominated in an Alternative Currency and (iii) of each Revolving Lender’s participation in any
Letter of Credit denominated in an Alternative Currency under which an LC Disbursement has been made shall, automatically and with no
further action required, be converted into the Dollar Amount, calculated using the Exchange Rate on such date (or in the case of any
LC Disbursement made after such date, on the date such LC Disbursement is made), of such amounts. On and after such conversion, all amounts
accruing and owed to the Administrative Agent, the Issuing Bank or any Revolving Lender in respect of the obligations described in this
paragraph shall accrue and be payable in Dollars at the rates otherwise applicable hereunder.
(m) Applicability
of ISP; Limitation of Liability. Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter of Credit is
issued, the rules of the ISP shall apply to each standby Letter of Credit. Notwithstanding the foregoing, the Issuing Bank shall
not be responsible to the Borrower for, and the Issuing Bank’s rights and remedies against the Borrower shall not be impaired by,
any action or inaction of the Issuing Bank required or permitted under any law, order, or practice that is required or permitted to be
applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the Issuing Bank or the beneficiary
is located, the practice stated in the ISP, 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.
(n) Conflict
with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Letter of Credit or related document,
the terms hereof shall control.
(o) Existing
Letters of Credit. The Existing Letters of Credit will be deemed to be Letters of Credit issued under this Agreement on the Closing
Date.
SECTION 2.18 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 Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.09(a).
(b) The
Commitments, Loans and Outstanding Revolving Credit of such Defaulting Lender shall not be included in determining whether the Required
Lenders or Required Financial Covenant Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver
or other modification pursuant to Section 9.02 or Section 9.03); provided that this Section 2.18(b) shall
not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification effecting (i) an increase
or extension of such Defaulting Lender’s Revolving Commitment or (ii) the reduction or excuse of principal amount of, or interest
or fees payable on, such Defaulting Lender’s Loans or the postponement of the scheduled date of payment of such principal amount,
interest or fees to such Defaulting Lender.
(c) If
any Letters of Credit exist at the time such Lender becomes a Defaulting Lender then:
(i) Such
Defaulting Lender’s LC Exposure shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective
Revolving Commitment Percentages (but excluding the Revolving Commitments of all the Defaulting Lenders from both the numerator and the
denominator) but only to the extent (x) the sum of all the Outstanding Revolving Credits owed to all Non-Defaulting Lenders does
not exceed the total of all Non-Defaulting Lenders’ Available Revolving Commitments, (y) the representations and warranties
of each Loan Party set forth in the Loan Documents to which it is a party are true and correct at such time, except to the extent that
any such representation and warranty relates to an earlier date (in which case such representation and warranty shall be true and correct
as of such earlier date), and (z) no Default shall have occurred and be continuing at such time;
(ii) If
the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within two Business
Days following notice by the Administrative Agent, cash collateralize for the benefit of the Issuing Bank such Defaulting Lender’s
LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as any Letters of Credit
are outstanding;
(iii) If
the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower
shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.09(b) with respect to such Defaulting
Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized by the Borrower;
(iv) If
LC Exposures of the Non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Revolving
Lenders pursuant to Section 2.09(a) and Section 2.09(b) shall be adjusted to reflect such Non-Defaulting Lenders’
LC Exposure as reallocated; and
(v) If
any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to clauses (i) or (ii) above,
then, without prejudice to any rights or remedies of the Issuing Bank or any Revolving Lender hereunder, all letter of credit fees payable
under Section 2.09(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until
such LC Exposure is cash collateralized and/or reallocated.
(d) So
long as such Defaulting Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter
of Credit, unless it is satisfied that the related LC Exposure will be 100% covered by the Available Revolving Commitments of the Non-Defaulting
Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.18(c)(ii), and the participating interests
in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and
such Defaulting Lender shall not participate therein).
The rights and remedies against a Defaulting Lender
under this Agreement are in addition to other rights and remedies that Borrower may have against such Defaulting Lender with respect
to any funding default and that the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any funding
default. In the event that the Administrative Agent, the Borrower and the Issuing Bank each agrees that a Defaulting Lender has adequately
remedied all matters that caused such Lender to be a Defaulting Lender, then the Total Revolving Exposure shall be readjusted to reflect
the inclusion of such Lender’s Available Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving
Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause such outstanding
Revolving Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Revolving 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 LC Exposure of
such Lender reallocated pursuant to the requirements above 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. Except to the extent otherwise expressly agreed by the affected parties, and subject to Section 9.19, no reallocation hereunder
shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having
become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased
exposure following such reallocation.
SECTION 2.19 Extensions
of Commitments.
(a) Notwithstanding
anything to the contrary in this Agreement, pursuant to one or more offers made from time to time by the Borrower to all Lenders of any
Class of Term Loans and/or Revolving Commitments on a pro rata basis (based, in the case of an offer to the Lenders under
any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders
under any Revolving Facility, on the aggregate outstanding Revolving Commitments under such Revolving Facility, as applicable), and on
the same terms to each such Lender (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions
with individual Lenders that agree to such transactions from time to time to extend the maturity date of such Lender’s Loans and/or
Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant
to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in
respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s
Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in
the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to
be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same
and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Commitments of such Facility
are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension
are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending
Lender”) will be established under this Agreement by implementing a Term Loan for such Lender if such Lender is extending an
existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Extended Revolving Commitment for such
Lender if such Lender is extending an existing Revolving Commitment (such extended Revolving Commitment, an “Extended Revolving
Commitment,” and any Revolving Loan made pursuant to such Extended Revolving Commitment, an “Extended Revolving Loan”).
Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or the
proposed Extended Revolving Commitment shall become effective, which shall be a date not earlier than five (5) Business Days after
the date on which the Pro Rata Extension Offer is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative
Agent in its reasonable discretion).
(b) The
Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an amendment to this Agreement (an “Extension
Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term
Loans and/or Extended Revolving Commitments of such Extending Lender. Each Extension Amendment shall specify the terms of the applicable
Extended Term Loans and/or Extended Revolving Commitments; provided that (i) except as to interest rates, fees and any other
pricing terms, and amortization, final maturity date and participation in prepayments and commitment reductions (which shall be determined
by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall, subject to clauses (ii) and (iii) of
this proviso, have (x) the same terms as the existing Class of Term Loans from which they are extended or (y) such other
terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall
be no earlier than the Latest Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of
any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which
such offer relates, (iv) except as to interest rates, fees, any other pricing terms and final maturity (which shall be determined
by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Commitment shall have (x) the same terms
as the existing Class of Revolving Commitments from which they are extended or (y) have such other terms as shall be reasonably
satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank,
such terms as shall be reasonably satisfactory to such Issuing Bank, (v) any Extended Term Loans may participate on a pro rata
basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term Loans in any mandatory prepayment
thereunder and (vi) such Extended Term Loans shall not have at any time (x) any financial maintenance covenants of a different
type than the financial covenant set forth in Section 6.10, or any financial maintenance covenants that are more restrictive than
the financial covenant set forth in Section 6.10 or (y) negative covenants and/or default provisions that, taken as a whole,
are materially more restrictive than those applicable to the Facilities as determined in good faith by the Borrower unless, in each case
of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative
Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements) for so
long as any such Extended Term Loans are outstanding or (II) become applicable only after the Revolving Facility shall have matured
or been terminated and any Loans existing on the date of the initial incurrence of (or commitment in respect of ) such Extended Term
Loans have been paid in full. Upon the effectiveness of any Extension Amendment, this Agreement shall be amended to the extent (but only
to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Commitments evidenced
thereby as provided for in Section 9.02(c). Any such deemed amendment may be memorialized in writing by the Administrative Agent
with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Extension
Amendment with respect to any Extended Revolving Commitments, and with the consent of each Issuing Bank, participations in Letters of
Credit shall be reallocated to lenders holding such Extended Revolving Commitments in the manner specified in such Extension Amendment,
including upon effectiveness of such Extended Revolving Commitment or upon or prior to the maturity date for any Class of Revolving
Commitments.
(c) Upon
the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended
Term Loan and/or such Extending Lender’s Revolving Commitment will be automatically designated an Extended Revolving Commitment.
For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending
Lender will be deemed to have a Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending
a Revolving Commitment, such Extending Lender will be deemed to have a Revolving Commitment having the terms of such Extended Revolving
Commitment.
(d) Notwithstanding
anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.19),
(i) the aggregate amount of Extended Term Loans and Extended Revolving Commitments will not be included in the calculation of clause
(a) of the definition of Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Commitment is required to be
in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or
Revolving Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation)
(including the extension of any Extended Term Loan and/or Extended Revolving Commitment), (iv) there shall be no condition to any
Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension
and the terms of the Extended Term Loan or Extended Revolving Commitment implemented thereby, (v) all Extended Term Loans, Extended
Revolving Commitments and all obligations in respect thereof shall be Obligations of the relevant Loan Parties under this Agreement and
the other Loan Documents that rank equally and ratably in right of security with all other Obligations of the Class being extended,
(vi) no Issuing Bank shall be obligated to issue Letters of Credit under such Extended Revolving Commitments unless it shall have
consented thereto and (vii) there shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors)
in respect of any such Extended Term Loans or Extended Revolving Commitments.
(e) Each
Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the
Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures
with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
SECTION 2.20 Refinancing
Amendments.
(a) Notwithstanding
anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional
tranches of term loans under this Agreement (such loans, “Refinancing Term Loans”) to refinance in whole or in part
any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which
the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not earlier than five (5) Business Days
after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative
Agent in its sole discretion); provided that:
(i) before
and after giving effect to the Borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions set
forth in Section 4.02 shall be satisfied;
(ii) the
final maturity date of the Refinancing Term Loans shall be no earlier than the maturity date of the refinanced Term Loans;
(iii) the
Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to
Maturity of the refinanced Term Loans;
(iv) the
aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans
plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) all
other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees,
interest rates and any,
other pricing terms (and optional
prepayment or mandatory prepayment or redemption terms, which
shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) taken as a whole shall (as determined
by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries
than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other
terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative
Agent);
(vi) there
shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors) in respect of such Refinancing
Term Loans;
(vii) Refinancing
Term Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral;
(viii) Refinancing
Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata
basis) in any mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.08(c))
hereunder, as specified in the applicable Refinancing Amendment;
(ix) Refinancing
Term Loans shall not at any time have (x) any financial maintenance covenants of a different type than the financial covenant set
forth in Section 6.10, or any financial maintenance covenant that is more restrictive than the financial covenant set forth in Section 6.10
or (y) negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable
to the Facilities as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such terms (I) (if
favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit
of all then existing Lenders (without further amendment requirements) for so long as any such Refinancing Term Loans are outstanding
or (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Loans existing on the
date of the initial incurrence of (or commitment in respect of) such Refinancing Term Loans have been paid in full; and
(x) Refinancing
Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata
basis) in any mandatory prepayments hereunder, if any, as specified in the applicable Refinancing Amendment.
(b) The
Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all
or a portion of the Refinancing Term Loans; provided that any Lender offered or approached to provide all or a portion of the
Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made
on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Agreement; provided,
further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing
Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding
anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional
Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving
Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace
in whole or in part any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement
Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall
become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to
the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided
that:
(i) before
and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility
Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) after
giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount
of any other Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount of the Revolving
Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees,
premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(iii) no
Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior
to the Revolving Termination Date for the Revolving Commitments being replaced;
(iv) all
other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other
pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and
the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under
such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving
Facility Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Facility Commitments)
taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower
and its Restricted Subsidiaries than, those, taken as a whole, applicable to the Revolving Commitments so replaced (except to the extent
such covenants and other terms apply solely to any period after the Revolving Termination Date or are otherwise reasonably acceptable
to the Administrative Agent);
(v) there
shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors) in respect of such Replacement
Revolving Facility; and
(vi) Replacement
Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries
other than the Collateral.
In addition, the Borrower may establish Replacement Revolving Facility
Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with
the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments
does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums,
costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement
Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would
be a permitted assignee hereunder) so long as:
(i) before
and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility
Effective Date each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the relevant agreement
governing such Replacement Revolving Facility Commitments,
(ii) [reserved],
(iii) the
final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the scheduled final maturity date of
the refinanced Term Loans,
(iv) there
shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors) in respect of such Replacement
Revolving Facility; and
(v) all
other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other
pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and
the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline
commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement
Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Facility
Commitments) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive
to the Borrower and its Restricted Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except
to the extent such covenants and other terms apply solely to any period after the latest scheduled final maturity date of any Loans then
outstanding or are otherwise reasonably acceptable to the Administrative Agent).
Solely to the extent that an Issuing Bank is not a replacement issuing
bank, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank shall not be required
to issue any letters of credit under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank to
withdraw as an Issuing Bank, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal
shall be on terms and conditions reasonably satisfactory to such Issuing Bank, as the case may be, in its sole discretion. The Borrower
agrees to reimburse each Issuing Bank, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost
or expense attributable to such withdrawal.
(d) The
Borrower may approach any Lender or any other person that would be a permitted assignee of a Revolving Commitment pursuant to Section 9.05
to provide all or a portion of the Replacement Revolving Facility Commitments; provided that any Lender offered or approached
to provide all or a portion of the Replacement Revolving Facility Commitments may elect or decline, in its sole discretion, to provide
a Replacement Revolving Facility Commitment. Any Replacement Revolving Facility Commitment made on any Replacement Revolving Facility
Effective Date shall be designated an additional Class of Revolving Commitments for all purposes of this Agreement; provided
that any Replacement Revolving Facility Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated
as an increase in any previously established Class of Revolving Commitments.
(e) The
Borrower and each Lender providing the applicable Refinancing Term Loans or Replacement Revolving Facility Commitments, as applicable,
shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and
such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement
Revolving Facility Commitments. For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing
Term Loan, such Lender will be deemed to have a Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is
providing a Replacement Revolving Facility Commitment, such Lender will be deemed to have a Revolving Commitment having the terms of
such Replacement Revolving Facility Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan
Document (including without limitation this Section 2.20), (i) the aggregate amount of Refinancing Term Loans and Replacement
Revolving Facility Commitments will not be included in the calculation of clause (a) of the definition of Incremental Amount, (ii) no
Refinancing Term Loan or Replacement Revolving Facility Commitment is required to be in any minimum amount or any minimum increment,
(iii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Facility Commitment at
any time or from time to time other than those set forth in clause (a) or (c) above, as applicable and (iv) all Refinancing
Term Loans, Replacement Revolving Facility Commitments and all obligations in respect thereof shall be Obligations under this Agreement
and the other Loan Documents that rank equally and ratably in right of security with the Term Loans and other Obligations.
(f) Each
party hereto hereby agrees that, upon the Refinancing Effective Date of any Refinancing Term Loans or Replacement Revolving Facility
Commitments, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the
Refinancing Term Loans or Replacement Revolving Facility Commitments evidenced thereby as provided for in Section 9.02. Any amendment
to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.20 (including, without
limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be deemed
“Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished
to the other parties hereto.
(g) No
term loan (other than a Customary Term A Facility) established and outstanding under this Agreement pursuant to (i) any of Section 2.02,
2.19 or 2.20 or (ii) an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders shall at any time have (x) any financial maintenance covenants
of a different type than the financial covenants set forth in Section 6.10, or any financial maintenance covenants that are more
restrictive than the financial covenants set forth in Section 6.10 or (y) have negative covenants and/or default provisions
that, taken as a whole, are materially more restrictive than those applicable to the Facilities as determined in good faith by the Borrower
unless, in each case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation
with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment
requirements) for so long as any such term loans are outstanding or (II) become applicable only after the Revolving Facility shall
have matured or been terminated and any Loans existing on the date of the initial incurrence of (or commitment in respect of) such term
loan have been paid in full. This Section 2.20(g) shall not be waived, amended, amended and restated or modified except pursuant
to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative
Agent with the consent of the Required Lenders.
SECTION 2.21 Illegality.
If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after
the Closing Date that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund any Term Benchmark Loans,
or to determine or charge interest rates based upon the Adjusted Term SOFR Rate, Adjusted EURIBOR Rate or Adjusted TIBOR Rate, as applicable,
or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits
of, Dollars in the London interbank market then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any
obligations of such Lender to make or continue Term Benchmark Loans or to convert ABR Borrowings to Term Benchmark Borrowings shall be
suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which
is determined by reference to the Term SOFR Rate component of the ABR, the interest rate on which ABR Loans of such Lender shall, if
necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR Rate component of the
ABR, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, (x) the Borrower shall upon demand from such Lender (with a copy to the Administrative
Agent), at the Borrower’s determination, either (a) prepay all Term Benchmark Borrowings of such Lender or (b) convert
all Term Benchmark Borrowings of such Lender to ABR Borrowings (the interest rate on such ABR Loans of such Lender shall, if necessary
to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR Rate component of the ABR), in
each case, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term Benchmark
Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans and (y) if such notice asserts
the illegality of such Lender determining or charging interest rates based upon the Term SOFR Rate, the Administrative Agent shall during
the period of such suspension compute the ABR applicable to such Lender without reference to the Term SOFR Rate component thereof until
the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest
rates based upon the Term SOFR Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount
so prepaid or converted.
SECTION 2.22 Loan
Repurchases.
(a) Subject
to the terms and conditions set forth or referred to below, the Borrower may from time to time, at its discretion, (x) make privately
negotiated and/or open market purchases of Loans and Commitments on a non-pro rata basis or (y) conduct modified Dutch auctions
in order to purchase its Term Loans of one or more Classes (as determined by the Borrower) (each, a “Purchase Offer”),
each such Purchase Offer to be managed exclusively by the Administrative Agent (or such other financial institution chosen by the Borrower
and reasonably acceptable to the Administrative Agent) (in such capacity, the “Auction Manager”), so long as, in the
case of clause (x), the following conditions set forth in clauses (ii), (iv) and (ix) are satisfied and, in the case
of clause (y), each of the following conditions are satisfied):
(i) each
Purchase Offer shall be conducted in accordance with the procedures, terms and conditions set forth in this Section 2.22 and the
Auction Procedures;
(ii) no
Event of Default shall have occurred and be continuing on the date of the delivery of each notice of an auction and at the time of (and
immediately after giving effect to) the purchase of any Term Loans in the open market or in connection with any Purchase Offer;
(iii) the
principal amount (calculated on the face amount thereof) of each and all Classes of Term Loans that the Borrower offers to purchase in
any such Purchase Offer shall be no less than $25,000,000 (unless another amount is agreed to by the Administrative Agent) (across all
such Classes);
(iv) the
aggregate principal amount (calculated on the face amount thereof) of all Term Loans of the applicable Class or Classes so purchased
by the Borrower shall automatically be cancelled and retired by the Borrower on the settlement date of the relevant purchase (and may
not be resold) (without any increase to Consolidated EBITDA as a result of any gains associated with cancellation of debt), and in no
event shall the Borrower be entitled to any vote hereunder in connection with such Term Loans;
(v) no
more than one Purchase Offer with respect to any Class may be ongoing at any one time;
(vi) the
Borrower represents and warrants that no Loan Party shall have any material non-public information with respect to the Loan Parties or
their subsidiaries, or with respect to the Loans or the securities of any such person, that (A) has not been previously disclosed
in writing to the Administrative Agent and the Lenders (other than because such Lender does not wish to receive such material non-public
information) prior to such time and (B) could reasonably be expected to have a material effect upon, or otherwise be material to,
a Lender’s decision to participate in the Purchase Offer;
(vii) at
the time of each purchase of Term Loans through a Purchase Offer, the Borrower shall have delivered to the Auction Manager an officer’s
certificate of an officer certifying as to compliance with the preceding clause (vi);
(viii) any
Purchase Offer with respect to any Class shall be offered to all Term Lenders holding Term Loans of such Class on a pro rata
basis; and
(ix) no
purchase of any Term Loans shall be made from the proceeds of any Revolving Loan.
(b) The
Borrower must terminate any Purchase Offer if it fails to satisfy one or more of the conditions set forth above which are required to
be met at the time which otherwise would have been the time of purchase of Term Loans pursuant to such Purchase Offer. If the Borrower
commences any Purchase Offer (and all relevant requirements set forth above which are required to be satisfied at the time of the commencement
of such Purchase Offer have in fact been satisfied), and if at such time of commencement the Borrower reasonably believes that all required
conditions set forth above which are required to be satisfied at the time of the consummation of such Purchase Offer shall be satisfied,
then the Borrower shall have no liability to any Lender for any termination of such Purchase Offer as a result of its failure to satisfy
one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of consummation
of such Purchase Offer, and any such failure shall not result in any Default or Event of Default hereunder. With respect to all purchases
of Term Loans of any Class or Classes made by the Borrower pursuant to this Section 2.22, (x) the Borrower shall pay on
the settlement date of each such purchase all accrued and unpaid interest (except to the extent otherwise set forth in the relevant offering
documents), if any, on the purchased Term Loans of the applicable Class or Classes up to the settlement date of such purchase and
(y) such purchases (and the payments made by the Borrower and the cancellation of the purchased Loans, in each case in connection
therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.08 hereof.
(c) The
Administrative Agent and the Lenders hereby consent to the Purchase Offers and the other transactions effected pursuant to and in accordance
with the terms of this Section 2.22; provided, that notwithstanding anything to the contrary contained herein, no Lender
shall have an obligation to participate in any such Purchase Offer. For the avoidance of doubt, it is understood and agreed that the
provisions of Sections 2.13, 2.15 and 9.05 will not apply to the purchases of Term Loans pursuant to Purchase Offers made pursuant to
and in accordance with the provisions of this Section 2.22. The Auction Manager acting in its capacity as such hereunder shall be
entitled to the benefits of the provisions of Article VIII and Section 9.04 to the same extent as if each reference therein
to the “Agents” were a reference to the Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager
as reasonably requested by the Auction Manager in order to enable it to perform its responsibilities and duties in connection with each
Purchase Offer.
Notwithstanding anything herein to the contrary,
this Section 2.22 shall supersede any provisions in Section 2.15.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders
that:
SECTION 3.01 Organization;
Powers. Each of the Borrower and its Material Subsidiaries is duly organized, validly existing and, if applicable, in good standing
under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted
and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except, in each
case, where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.02 Authorization;
Enforceability. The Transactions (excluding use of proceeds) are within the corporate or other organizational powers of the Loan
Parties and have been duly authorized by all necessary corporate or other organizational action. This Agreement has been and each other
Loan Document will be duly executed and delivered by each Loan Party party thereto. This Agreement constitutes, and each other Loan Document
when executed and delivered will constitute a legal, valid and binding obligation of each Loan Party party thereto, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
or remedies generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03 Governmental
Approvals; No Conflicts. The Transactions (excluding use of proceeds) (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full
force and effect or those which the failure to obtain would not be reasonably expected to result in a Material Adverse Effect, (ii) the
filing of Uniform Commercial Code financing statements, (iii) filings with the United States Patent and Trademark Office and the
United States Copyright Office, (iv) [reserved] and (v) any other filings or registrations required to perfect Liens created
by the Collateral Documents, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any other Loan Party or any order of any Governmental Authority except where any such violation would not
reasonably expected to result in a Material Adverse Effect, (c) will not violate or result in a default under any indenture, agreement
or other instrument binding upon the Borrower or any other Loan Party or its assets except as would not reasonably expected to result
in a Material Adverse Effect, and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Material Subsidiaries (other than any Permitted Lien).
SECTION 3.04 Financial
Position. The Borrower has heretofore furnished to the Lenders (a) the combined balance sheet and combined statements of operations,
comprehensive operations, parent’s equity and cash flows for Dotdash, of and for the fiscal years ended December 31, 2020
and 2019 reported on by Ernst & Young LLP, independent public accountants, (b) Dotdash combined balance sheet, combined
statement of operations, comprehensive operations, parent’s equity and cash flows as of and for the nine months ended September 30,
2021, (c) the combined balance sheet and combined statements of loss, comprehensive loss, equity (deficit) and cash flows of the
Target as of and for the fiscal years ended December 31, 2020 and 2019 reported on by KPMG LLP, independent public accountants and
(d) the combined balance sheet and combined statements of loss, comprehensive loss, equity (deficit) and cash flows of the Target
as of and for the nine months ended September 30, 2021. Such financial statements present fairly, in all material respects, the
combined financial position and combined results of operations and cash flows of Dotdash or the Target, as applicable, in each case as
of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments referred to in clauses (b) and
(d) above. The Pro Forma Financial Information has been prepared in good faith, based on assumptions believed by the Borrower to
be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated financial
position of the Borrower and its Subsidiaries for the period covered thereby.
SECTION 3.05 Properties.
(a) Each
of the Borrower and its Material Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title and Permitted Liens that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes or as, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect.
(b) Each
of the Borrower and its Material Subsidiaries owns, or is validly licensed to use, all Intellectual Property used or held for use by
such entities or necessary to operate their respective businesses as currently conducted and contemplated to be conducted, and the operation
of their respective businesses by the Borrower and its Material Subsidiaries does not infringe upon or otherwise violate the rights of
any other Person, except for any such Intellectual Property or infringements or violations that, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06 Litigation
and Environmental Matters.
(a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened in writing against or affecting the Borrower or any of its Restricted Subsidiaries (i) that would reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) on the Closing Date, that involve
this Agreement or the Transactions (excluding use of proceeds).
(b) Except
with respect to any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Restricted Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received written notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis reasonably likely to result in Environmental Liability.
SECTION 3.07 Compliance
with Laws and Agreements. Each of the Borrower and its Material Subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.08 Investment
Company Status. No Loan Party is an “investment company” as defined in, or subject to regulation under, the Investment
Company Act of 1940. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and X.
SECTION 3.09 Taxes.
Each of the Borrower and its Material Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested
in good faith by appropriate proceedings and for which the Borrower or such Material Subsidiary, as applicable, has set aside on its
books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so would not reasonably be expected
to, individually or in the aggregate, result in a Material Adverse Effect.
SECTION 3.10 ERISA.
No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes of Accounting Standards Codification Topic 715) did not,
as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan
by an amount which, if it were to become due, would cause a Material Adverse Effect.
SECTION 3.11 Disclosure.
As of the Closing Date, to the best of the Borrower’s knowledge, neither the Information Memorandum nor any of the other reports,
financial statements, certificates or other written information (other than the Projections, forward looking information and information
of a general economic or industry specific nature) furnished by or on behalf of the Borrower to the Administrative Agent or any Lender
in connection with the negotiation of this Agreement (as modified or supplemented by other information so furnished), taken as a whole,
contained any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading as of the date furnished; provided that with respect to projected
financial information and other forward looking information and information of a general economic nature (collectively, “Projections”),
the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the
time.
SECTION 3.12 Collateral
Documents.
(a) Each
Collateral Document is effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) a legal, valid and
enforceable security interest in the Collateral described therein and proceeds thereof. As of the Closing Date, in the case of the Pledged
Collateral described in the Security Agreement, when certificates or promissory notes, as applicable, representing such Pledged Collateral
and required to be delivered under the Security Agreement are delivered to the Collateral Agent, and in the case of the other Collateral
described in the Security Agreement (other than the Intellectual Property), when financing statements and other filings specified in
the Perfection Certificate are filed in the offices specified in the Perfection Certificate, the Collateral Agent (for the benefit of
the Secured Parties) shall have a fully perfected Lien (subject to all Permitted Liens) on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and, subject to Section 9-315 of the New York Uniform Commercial Code, the proceeds
thereof, as security for the Obligations to the extent perfection can be obtained by filing Uniform Commercial Code financing statements
or possession.
(b) When the Security Agreement or an ancillary document thereunder
is properly filed and recorded in the United States Patent and Trademark Office and the United States Copyright Office, and, with respect
to Collateral in which a security interest cannot be perfected by such filings, upon the proper filing of the financing statements referred
to in clause (a) above, the Collateral Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties thereunder in the material United States Intellectual Property
included in the Collateral listed in such ancillary document (it being understood that subsequent recordings in the United States Patent
and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks and patents,
trademark and patent applications and registered copyrights acquired by the Loan Parties after the Closing Date).
(c) Notwithstanding
anything herein (including this Section 3.12) or in any other Loan Document to the contrary, neither the Borrower nor any other
Loan Party makes any representation or warranty as to the effects of perfection or non-perfection, the priority or the enforceability
of any pledge of or security interest in any Equity Interests of any Foreign Subsidiary, or as to the rights and remedies of the Administrative
Agent, Collateral Agent or any Lender with respect thereto, under foreign law.
SECTION 3.13 No
Change. Since December 31, 20202023,
there has been no event that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
SECTION 3.14 Guarantors.
Set forth on Schedule 3.14 is a list of all Subsidiary Guarantors on the Closing Date, together with the jurisdiction of organization,
and ownership and ownership percentages of Equity Interests held by each such Subsidiary Guarantor in each direct subsidiary of such
Subsidiary Guarantor as of the Closing Date.
SECTION 3.15 Solvency.
Immediately after the consummation of the Transactions to occur on the Closing Date, including the making of each Loan to be made on
the Closing Date and the application of the proceeds of such Loans, and after giving effect to the rights of subrogation and contribution
under the Guarantee Agreement, (a) the fair value of the assets of the Borrower and its subsidiaries on a consolidated basis will
exceed their debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the assets of
the Borrower and its subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability
on their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and
matured, (c) the Borrower and its subsidiaries on a consolidated basis will be able to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured and (d) the Borrower and its subsidiaries on
a consolidated basis will not have unreasonably small capital with which to conduct the business in which they are engaged, as such business
is now conducted and is proposed to be conducted following the Closing Date.
SECTION 3.16 No
Default. No Default or Event of Default has occurred and is continuing.
SECTION 3.17 Anti-Corruption
Laws and Sanctions. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by
the Borrower, its subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions,
and the Borrower and its subsidiaries and to their knowledge their respective officers, directors and employees are in compliance with
Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower or any subsidiary or (b) to
the knowledge of the Borrower, any director, officer or employee of the Borrower or any subsidiary that will act in any capacity in connection
with or benefit from the credit facility established hereby, is a Sanctioned Person. No proceeds of the Loans and no Letter of Credit
shall be used by the Borrower in violation of any Anti-Corruption Law or for the purpose of funding or financing any activities, business
or transaction of or with any Sanctioned Person, or in any Sanctioned Country in violation of Sanctions. No representation is made under
this Section 3.17 with respect to any of the end-user individuals of the internet services provided by the Borrower or any of its
subsidiaries.
ARTICLE IV
Conditions
SECTION 4.01 Closing
Date. The obligations of the Lenders to make the initial Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The
Administrative Agent (or its counsel) shall have received (including by telecopy or email transmission) from each Loan Party party to
the relevant Loan Document, a counterpart of such Loan Document signed on behalf of such Loan Party.
(b) The
Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders as of the
Closing Date and dated the Closing Date) of (i) Wachtell, Lipton, Rosen & Katz, counsel for the Borrower and certain of
the Loan Parties and (ii) local counsel in each jurisdiction in which a Loan Party (other than Allrecipes.com, Inc.) is organized
and the laws of which are not covered by the opinion referred to in (i) above, in each case in form and substance reasonably satisfactory
to the Administrative Agent and its counsel.
(c) The
Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions (excluding use of
proceeds) and any other legal matters relating to the Loan Parties, this Agreement or the Transactions (excluding use of proceeds), including
a certificate of each Loan Party substantially in the form of Exhibit E, all in form and substance reasonably satisfactory
to the Administrative Agent and its counsel.
(d) The
Administrative Agent shall have received a certificate, dated the Closing Date and signed by the Chief Executive Officer, a Vice President,
a Financial Officer of the Borrower or any other officer of the Borrower who has specific knowledge of the Borrower’s financial
matters and is satisfactory to the Administrative Agent, confirming that (i) as of the Closing Date, no Default has occurred and
is continuing and (ii) the condition set forth in clause (n) has been satisfied.
(e) There
shall have been delivered to the Administrative Agent an executed Perfection Certificate.
(f) The
Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit I, dated the Closing Date and
signed by the chief financial officer of the Borrower.
(g) The
Administrative Agent, the Lead Arrangers, the Co-Documentation Agents, the Senior Co-Managers, the Co-Managers and the Lenders shall
have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced at least
two business days prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses (including fees of legal counsel
to the Administrative Agent, the Lead Arrangers, the Co-Documentation Agents, the Senior Co-Managers, the Co-Managers and the Lenders)
required to be reimbursed or paid by the Borrower.
(h) There
shall not have been a Company Material Adverse Effect (as defined in the Merger Agreement as in effect as of October 6, 2021) since
the date of the Merger Agreement.
(i) The
Administrative Agent shall have received the results of a recent Lien search with respect to each Loan Party, and such search shall reveal
no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.02 or discharged on or prior to the Closing
Date pursuant to documentation satisfactory to the Administrative Agent.
(j) To
the extent required to be satisfied on the Closing Date, the Collateral and Guarantee Requirement shall be satisfied (or waived in accordance
with Section 9.03) as of the Closing Date.
(k) Each
Loan Party shall have provided the documentation and other information requested by the Lenders that is required by regulatory authorities
under applicable “know your customer” and anti-money-laundering rules and regulations, including without limitation,
the Act, in each case, at least three Business Days prior to the Closing Date so long as requested at least ten Business Days prior to
the Closing Date.
(l) The
Administrative Agent shall have received an executed promissory note payable to each Lender or its registered assigns that requested
such promissory note at least five Business Days prior to the Closing Date and in a form approved by the Administrative Agent.
(m) [Reserved].
(n) The
Merger Agreement Target Representations shall be true and correct in all respects on the Closing Date and the Specified Representations
shall be true and correct in all material respects.
(o) Substantially
concurrently with the funding of the Term Loans, the Merger shall have been consummated in all material respects in accordance with the
Merger Agreement without giving effect to any amendment, modification or waiver or consent by the Borrower or any of its subsidiaries
thereunder, in each case, that is materially adverse to the Lenders, in their capacities as such, (including, for the avoidance of doubt,
any such materially adverse amendment pursuant to Section 7.12(b) of the Merger Agreement) without the prior written consent
of the Lead Arrangers, the Co-Documentation Agents, the Senior Co-Managers and the Co-Managers (such consent not to be unreasonably withheld,
delayed or conditioned), it being understood and agreed that (i) any increase or decrease in the acquisition consideration under
the Merger Agreement in accordance with the terms of the Merger Agreement as of October 6, 2021, (ii) any other decrease in
the acquisition consideration under the Merger Agreement that is accompanied by a dollar-for-dollar reduction in commitments in respect
of the Bridge Facility, (iii) any amendment or change to, or waiver, consent or approval by the Borrower or any of its subsidiaries
in respect of, the definition of Company Material Adverse Effect (as defined in the Merger Agreement as in effect on October 6.
2021) and (iv) any other increase or decrease in the cash portion of the Merger consideration since October 6, 2021 which does
not exceed 10% of the purchase price, in each case shall be deemed not to be materially adverse to the Lenders.
(p) The
Administrative Agent shall have received a borrowing notice in accordance with Section 2.03.
The Administrative Agent shall notify the Borrower and the Lenders
of the Closing Date, and such notice shall be conclusive and binding. It is understood that the Closing Date has occurred.
SECTION 4.02 Each
Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing (other than a continuation or conversion
of an existing Borrowing or pursuant to an Incremental Assumption Agreement) after the Closing Date and the obligation of the Issuing
Bank to issue any Letter of Credit after the Closing Date is subject to the satisfaction of the following conditions:
(a) The
representations and warranties of each Loan Party set forth in this Agreement shall be true and correct in all material respects (except
to the extent that any such representation and warranty is qualified by materiality or Material Adverse Effect, in which case such representation
and warranty shall be true and correct in all respects) on and as of the date of such Borrowing, except to the extent that any such representation
and warranty relates to an earlier date (in which case such representation and warranty shall have been true and correct in all material
respects (except to the extent that any such representation and warranty is qualified by materiality or Material Adverse Effect, in which
case such representation and warranty shall be true and correct in all respects) as of such earlier date); provided that in the
case of any Incremental Term Facility used to finance an acquisition permitted hereunder, to the extent the Lenders participating in
such Incremental Term Facility agree, this Section 4.02(a) shall require only the Specified Representations (or customary specified
representations for transactions of such type at such time) and customary “specified acquisition agreement representations”
(i.e., those representations of the seller or the target (as applicable) in the applicable acquisition agreement that are material to
the interests of the Lenders and only to the extent that the Borrower or its applicable subsidiary has the right to terminate its obligations
under the applicable acquisition agreement as a result of the failure of such representations to be accurate) be true and correct in
all material respects (except to the extent that any such representation and warranty is qualified by materiality or Material Adverse
Effect, in which case such representation and warranty shall be true and correct in all respects).
(b) At
the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing.
(c) The
Administrative Agent or Issuing Bank shall have received a borrowing notice in accordance with Section 2.03 or a Letter of Credit
request in accordance with Section 2.17(b), as applicable.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower or other applicable Loan Party on the date thereof as to the matters specified in paragraphs (a) and (b) of
this Section.
ARTICLE V
Affirmative Covenants
Until the Revolving Commitments have expired or
been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters
of Credit have expired or been cash collateralized, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01 Financial
Statements; Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) (i) within
90 days after the end of each fiscal year of the Borrower (or with respect to the fiscal year ending December 31, 2021, no later
than 150 days after the end of such fiscal year), its audited consolidated and/or combined balance sheet and related statements of operations,
stockholders’ or parent’s equity and cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by Ernst & Young LLP or other independent public accountants
of recognized national standing (without a “going concern” or like qualification or exception,
and without any qualification or exception as to the scope of such audit except as to the effectiveness of internal control over
financial reporting with respect to any subsidiary acquired during such fiscal year in accordance with Regulation S-X under the Exchange
Act, as interpreted by the implementation guidance of the U.S. Securities Exchange Commission) to the effect that such consolidated financial
statements present fairly in all material respects the financial position and results of operations of the Borrower and its consolidated
subsidiaries and/or combined entities on a consolidated or combined basis in accordance with GAAP consistently applied (except as approved
by such accountants and disclosed therein), and (ii) an unaudited schedule eliminating Unrestricted Subsidiaries and reconciling
to the financial statements in reasonable detail, as determined by the Borrower if requested by the Administrative Agent (on its own
behalf or at the request of any Lender);
(b) within
45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or with respect to the fiscal quarter
ending March 31, 2022, 90 days after the end of such fiscal quarter), its consolidated balance sheet and related statement of operations
as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year and the statements of stockholders’
equity and cash flows for the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified
by one of its Financial Officers as presenting fairly in all material respects the financial position and results of operations of the
Borrower and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as approved by
such officer and disclosed therein), subject to normal year-end audit adjustments, and a schedule eliminating Unrestricted Subsidiaries
and reconciling to the financial statements in reasonable detail as determined by the Borrower if requested by the Administrative Agent
(on its own behalf or at the request of any Lender);
(c) within
90 days after the end of each fiscal year of the Borrower, forecasts of the cash and cash equivalents and long-term debt line items on
the consolidated balance sheets and forecasts of the statements of operations and cash flows, in each case of the Borrower and the Restricted
Subsidiaries on a quarterly basis for the then current fiscal year, in each case prepared by management of Borrower and substantially
in the form as the forecasts delivered by the Borrower to the Lead Arrangers, the Co-Documentation Agents, the Senior Co-Managers and
the Co-Managers prior to the Closing Date;
(d) concurrently
with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance
with Section 6.10 (whether or not the Testing Condition is satisfied), (iii) stating whether any change in GAAP or in the application
thereof that materially affects such financial statements has occurred since the date of the audited financial statements referred to
in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying
such certificate, (iv) setting forth a description of any change in the jurisdiction of organization of the Borrower or any Material
Domestic Subsidiary since the date of the most recent certificate delivered pursuant to this paragraph (d) (or, in the case of the
first such certificate so delivered, since the Closing Date) and (v) setting forth a calculation in reasonable detail indicating
which Domestic Subsidiaries are Material Domestic Subsidiaries;
(e) concurrently
with any delivery of financial statements under clause (a)(i) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by accounting rules or guidelines and may be limited to accounting
matters and disclaim responsibility for legal interpretations);
(f) at
any time the Borrower or any ERISA Affiliate participates in any Multiemployer Plan, promptly following receipt thereof, copies of any
documents described in Section 101(k) or 101(l) of ERISA that the Borrower or any ERISA Affiliate may request with respect
to any Multiemployer Plan; provided that if the Borrower and/or any ERISA Affiliate has not requested such documents or notices
from the administrator or sponsor of the applicable Multiemployer Plan then, upon reasonable request of the Administrative Agent, the
Borrower and/or its ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and
the Borrower shall provide copies of such documents and notices to the Administrative Agent (on behalf of each requesting Lender) promptly
after receipt thereof;
(g) concurrently
with the delivery of financial statements under clause (a) above, an updated Perfection Certificate reflecting all changes since
the date of the information most recently received pursuant to this clause (g) or Section 5.09(c) (or a certificate of
a manager, executive officer or Financial Officer of the Borrower or any other officer or similar official thereof responsible for the
administration of the obligations of such person in respect of this Agreement, or any other duly authorized employee or signatory of
the Borrower certifying as to the absence of any changes to the previously delivered update, if applicable); and
(h) promptly
following any reasonable request therefor, such other information regarding the operations, business affairs and financial position of
the Borrower or any Restricted Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent (on its own behalf
or at the request of any Lender) may reasonably request.
Notwithstanding the foregoing, the obligations
in clauses (a) and (b) of this Section 5.01 may be satisfied with respect to the consolidated financial information of
the Borrower by furnishing the consolidated financial information of any parent of the Borrower that, directly or indirectly, holds all
of the Equity Interests of the Borrower that would be required by clauses (a) and (b) of this Section 5.01 with all references
to the “Borrower” therein being deemed to refer to such parent and all references to “Financial Officer” therein
being deemed to refer to a comparable officer of such parent; provided that such financial statements are accompanied by a schedule
(the “Reconciliation”) eliminating (A) such parent of the Borrower and any of such parent’s subsidiaries
other than the Borrower and its subsidiaries and (B) Unrestricted Subsidiaries and reconciling to the financial statements in reasonable
detail as determined by the Borrower if requested by the Administrative Agent (on its own behalf or at the request of any Lender).
Information required to be delivered pursuant
to this Section 5.01 shall be deemed to have been delivered if such information (including, in the case of certifications required
pursuant to clause (b) above, the certifications accompanying any such quarterly report pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002), or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent
on IntraLinks or a similar site to which the Lenders have been granted access or shall be available on the website of the SEC at http://www.sec.gov;
provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting
of such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e. soft copies) of such documents.
Information required to be delivered pursuant to this Section 5.01 may also be delivered by electronic communications pursuant to
procedures approved by the Administrative Agent. In the event any financial statements delivered under clause (a) or (b) above
shall be restated, the Borrower shall deliver, promptly after such restated financial statements become available, revised completed
certificates with respect to the periods covered thereby that give effect to such restatement, signed by a Financial Officer.
The Borrower acknowledges and agrees that all
financial statements furnished pursuant to paragraphs (a) and (b) above (but not any Reconciliation unless it is marked “PUBLIC”
by the Borrower) are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as
contemplated by Section 9.18 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC”
in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery
thereof).
SECTION 5.02 Notices
of Material Events. The Borrower will furnish to the Administrative Agent for delivery to each Lender prompt written notice of the
following:
(a) the
occurrence of any Default;
(b) the
filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against the Borrower or
any Restricted Subsidiary thereof as to which there is a reasonable likelihood of an adverse determination that would reasonably be expected
to result in a Material Adverse Effect;
(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to
result in liability of the Borrower or its Restricted Subsidiaries in an amount which would constitute a Material Adverse Effect; and
(d) any
other development that results in, or would reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall
be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth the details of the event
or development requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03 Existence;
Conduct of Business. The Borrower will, and will cause each of its Restricted Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business except in each case (i) where the failure to do so would not reasonably be expected
to result in a Material Adverse Effect or (ii) as such action is not prohibited under Section 6.03, 6.04 or 6.05.
SECTION 5.04 Payment
of Obligations. The Borrower will, and will cause each of its Restricted Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect before the
same shall become delinquent or in default except where (a) the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest would not reasonably be expected to, individually
or in the aggregate, result in a Material Adverse Effect.
SECTION 5.05 Maintenance
of Properties; Insurance.
(a) The
Borrower will, and will cause each of its Restricted Subsidiaries to (i) keep and maintain all property material to the conduct
of its business in good working order and condition, ordinary wear and tear excepted, (ii) maintain (including pursuant to a policy
of a member of any entity that is a direct or indirect parent of Borrower), with financially sound and reputable insurance companies
insurance (subject to customary deductibles and retentions, as determined by the Borrower) in such amounts and against such risks as
are customarily maintained by similarly situated companies engaged in the same or similar businesses operating in the same or similar
locations, and within thirty (30) days after the Closing Date (or such later date as the Collateral Agent may agree in its reasonable
discretion), cause the Collateral Agent to be listed as a co-loss payee on property policies with respect to tangible personal property
and assets constituting Collateral located in the United States of America and as an additional insured on all general liability policies,
and (iii) and use commercially reasonable efforts to maintain, prosecute and enforce its Material Intellectual Property, in each
case except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect. Notwithstanding the foregoing,
the Borrower and its Restricted Subsidiaries may (or any entity that is a direct or indirect parent of Borrower may) (i) maintain
all such insurance with any combination of primary and excess insurance, (ii) maintain any or all such insurance pursuant to master
or so-called “blanket policies” insuring any or all Collateral and/or other Real Property which does not constitute Collateral
(and in such event the co-payee endorsement shall be limited or otherwise modified accordingly), and/or (iii) self-insure with respect
to such risks with respect to which similarly situated companies engaged in the same or similar businesses operating in the same or similar
locations usually self-insure, as determined by the Borrower.
(b) In
connection with the covenants set forth in this Section 5.05, it is understood and agreed that:
(i) the
Administrative Agent, the Collateral Agent, the Lenders and their respective agents or employees shall not be liable for any loss or
damage insured by the insurance policies required to be maintained under this Section 5.05, it being understood that (A) the
Loan Parties shall look solely to their insurance companies or any other parties other than the aforesaid parties for the recovery of
such loss or damage and (B) such insurance companies shall have no rights of subrogation against the Administrative Agent, the Collateral
Agent, the Lenders or their agents or employees. If, however, the insurance policies, as a matter of the internal policy of such insurer,
do not provide waiver of subrogation rights against such parties, as required above, then the Borrower, on behalf of itself and behalf
of each of its Subsidiaries, hereby agrees, to the extent permitted by law, to waive, and further agrees to cause each of their Subsidiaries
to waive, its right of recovery, if any, against the Administrative Agent, the Collateral Agent, the Lenders and their agents and employees;
(ii) the
designation of any form, type or amount of insurance coverage by the Collateral Agent (including acting in the capacity as the Collateral
Agent) under this Section 5.05 shall in no event be deemed a representation, warranty or advice by the Collateral Agent or the Lenders
that such insurance is adequate for the purposes of the business of the Borrower and the Subsidiaries or the protection of their properties;
and
(iii) the
amount and type of insurance that the Borrower and its Restricted Subsidiaries have in effect as of the Closing Date and the certificates
listing the Collateral Agent as a co-loss payee or additional insured, as the case may be, satisfy for all purposes the requirements
of this Section 5.05.
SECTION 5.06 Books
and Records; Inspection Rights. The Borrower will, and will cause each of its Restricted Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in all material respects are made of all dealings and transactions in relation to
its business and activities. The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any representatives designated
by the Administrative Agent or any Lender to visit and inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and independent accountants all at such reasonable times and as
often as reasonably requested; provided that such visits, inspections, examinations and discussions shall, so long as no Default
or Event of Default has occurred and is continuing, take place no more often than one time per fiscal year on a date to be determined
by, and shall be coordinated by, the Borrower and the Administrative Agent.
SECTION 5.07 Compliance
with Laws. The Borrower will, and will cause each of its Restricted Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08 Use
of Proceeds.
(a) On
and after the Closing Date, the proceeds of the Revolving Loans will be used to finance the working capital needs and for general corporate
purposes of the Borrower and its subsidiaries.
(b) The
Borrower will use the proceeds of the Term Loans incurred on the Closing Date to finance a portion of the Transactions and for general
corporate purposes (including for working capital purposes and for capital expenditures).
SECTION 5.09 Subsidiary
Guarantors and Collateral.
(a) On
the Closing Date (A) each Restricted Subsidiary (other than an Excluded Subsidiary) will become a party to the Guarantee Agreement
and (B) each Restricted Subsidiary (other than an Excluded Subsidiary) will become a party to the Security Agreement and pledge
all of the Equity Interests of any Restricted Subsidiary (other than Excluded Securities) directly owned by such Restricted Subsidiary
and any other shares, stock certificates, options, interests or rights of any nature whatsoever in respect of the Equity Interests of
any Restricted Subsidiary (other than Excluded Securities) that may be issued or granted to, or held by, such Restricted Subsidiary while
this Agreement is in effect; provided that such Restricted Subsidiary shall not be required to take any action (including entry
into any foreign pledge agreement or similar document) other than those actions expressly set forth in this clause (B) and deliver
to the Collateral Agent any and all certificates representing such Equity Interests (to the extent certificated), accompanied by undated
stock powers or other appropriate instruments of transfer executed in blank.
(b) If
any asset (other than Real Property) is acquired by the Borrower or any Subsidiary Guarantor after the Closing Date or owned by an entity
at the time it becomes a Subsidiary Guarantor (in each case other than (x) assets constituting Collateral under a Collateral Document
that automatically become subject to the Lien of such Collateral Document upon acquisition thereof and (y) assets constituting Excluded
Collateral (as defined in the Security Agreement)), the Borrower or such Subsidiary Guarantor, as applicable, will (i) notify the
Collateral Agent of such acquisition or ownership and (ii) cause such asset to be subjected to a Lien (subject to any Permitted
Liens) securing the Obligations by, and take, and cause the Subsidiary Guarantors to take, such actions as shall be reasonably requested
by the Collateral Agent to satisfy the Collateral and Guarantee Requirement with respect to such asset, including actions described in
clause (a) of this Section 5.09, all at the expense of the Loan Parties, subject to the last paragraph of this Section 5.09.
(c) [Reserved].]
(d) If
any additional direct or indirect Subsidiary of the Borrower is formed, acquired or ceases to constitute an Excluded Subsidiary following
the Closing Date and such Subsidiary is (1) a Material Domestic Subsidiary of the Borrower that is not an Excluded Subsidiary or
(2) any other Domestic Subsidiary of the Borrower that may be designated by the Borrower in its sole discretion, within sixty (60)
days after the date such Subsidiary is formed or acquired or meets such criteria (or first becomes subject to such requirement) (or such
longer period as the Collateral Agent may agree in its sole discretion), Borrower shall notify the Collateral Agent thereof and, within
sixty (60) days after the date such Subsidiary is formed or acquired or meets such criteria (or first becomes subject to such requirement)
or such longer period as the Collateral Agent may agree in its sole discretion, cause such Subsidiary to become a Subsidiary Guarantor
and cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest
in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject to the last paragraph of this Section 5.09.
Notwithstanding anything to the contrary herein, in no circumstance shall an Excluded Subsidiary become a Subsidiary Guarantor unless
designated as a Subsidiary Guarantor by the Borrower in its sole discretion.
(e) Borrower
shall furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s corporate or organization
name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification
number (to the extent relevant in the applicable jurisdiction of organization) and (D) in any Loan Party’s jurisdiction of
organization; provided that the Borrower shall not effect or permit any such change unless all filings have been made, or will
have been made within sixty (60) days following such change (or such longer period as the Collateral Agent may agree in its sole discretion),
under the Uniform Commercial Code (or its equivalent in any applicable jurisdiction) that are required in order for the Collateral Agent
to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which
a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(f) In
addition, in no event shall (1) control agreements or control, lockbox or similar agreements or arrangements be required with respect
to deposit accounts, securities accounts or commodities accounts, (2) landlord, mortgagee and bailee waivers or subordination agreements
be required, (3) notices be required to be sent to account debtors or other contractual third parties unless an Event of Default
has occurred and is continuing and (4) foreign-law governed security documents or perfection under foreign law be required.
SECTION 5.10 Further
Assurances. Promptly upon the reasonable request by the Administrative Agent, or any Lender through the Administrative Agent, the
Borrower shall, or shall cause the Subsidiary Guarantors to (i) correct any material defect or error that may be discovered in the
execution, acknowledgment, filing or recordation of any Loan Document, and (ii) do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative
Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (x) carry out the purposes
of the Loan Documents, (y) satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement
to be and remain satisfied and (z) perfect and maintain the validity and effectiveness of the Collateral Documents and any of the
Liens created thereunder. Notwithstanding anything herein to the contrary, (A) the Collateral Agent may grant extensions of time
or waiver or modification of requirement for the creation or perfection of security interests in or the obtaining of insurance (including
title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security
interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection
or obtaining of such items cannot reasonably be accomplished without undue effort or expense or is otherwise impracticable by the time
or times at and/or in the form or manner in which it would otherwise be required by this Agreement or the other Loan Documents and (B) Liens
required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the
Collateral Documents shall be subject to exceptions and limitations set forth in the Collateral Documents.
SECTION 5.11 Ratings.
The Borrower shall use commercially reasonable efforts to obtain and to maintain public ratings from Moody’s and Standard &
Poor’s for the Term Loans; provided, however, that the Borrower shall not be required to obtain or maintain any specific
rating.
SECTION 5.12 Post-Closing
Matters. Within the applicable time period set forth in Schedule 5.12 (or such later dates as the Administrative Agent may agree
in its sole discretion), furnish to the Administrative Agent each document required pursuant to Schedule 5.12.
ARTICLE VI
Negative Covenants
Until the Revolving Commitments have expired or
terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit
have expired or have been cash collateralized, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness.
The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness
incurred under the Loan Documents and any Refinancing Indebtedness thereof;
(b) Indebtedness
in respect of Permitted Ratio Debt and any Refinancing Indebtedness thereof;
(c) (i) Indebtedness
of the Borrower or any other subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets (provided
that such Indebtedness is incurred or assumed prior to or within 270 days after such acquisition or the completion of such construction
or improvement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed
or capital assets) in an aggregate amount under this clause (c) not to exceed the greater of (x) $224,000,000 and (y) 50.0%
of Consolidated EBITDA for the then most recently ended Test Period; provided that no Default shall have occurred and be continuing
and (ii) any Refinancing Indebtedness thereof;
(d) (i) Indebtedness
of Foreign Subsidiaries in an aggregate principal amount at any time outstanding under this clause (d) not to exceed the greater
of (x) $112,000,000 and (y) 25.0% of Consolidated EBITDA for the then most recently ended Test Period and (ii) any Refinancing
Indebtedness thereof;
(e) (i) Indebtedness
of any Non-Loan Party in an aggregate principal amount not to exceed the greater of (x) $112,000,000 and (y) 25.0% of Consolidated
EBITDA for the then most recently ended Test Period and (ii) any Refinancing Indebtedness thereof;
(f) Guarantees
of any Indebtedness permitted pursuant to this Section 6.01 and any Refinancing Indebtedness thereof, so long as in the case of
clause (b), the Loans are guaranteed by such Restricted Subsidiary to at least the same extent;
(g) [Reserved];
(h) (x) Indebtedness
of the Borrower owed to any Restricted Subsidiary or of a Restricted Subsidiary owed to any other Restricted Subsidiary or the Borrower
and (y) Guarantees by any Restricted Subsidiary or the Borrower of any Indebtedness of the Borrower or any other Restricted Subsidiary;
provided, however, that upon any such Indebtedness being owed to any Person other than the Borrower or a Restricted Subsidiary
or any such guarantee being of Indebtedness of any Person other than the Borrower or a Restricted Subsidiary, as applicable, the Borrower
or such Restricted Subsidiary, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (h);
(i) Indebtedness
outstanding on the Closing Date and set forth on Schedule 6.01 and any Refinancing Indebtedness thereof;
(j) (i) Indebtedness
of any Person that becomes a Restricted Subsidiary after the Closing Date or is merged with or into or consolidated or amalgamated with
the Borrower or any Restricted Subsidiary after the Closing Date and Indebtedness expressly assumed in connection with the acquisition
of an asset or assets from any other Person; provided that (A) such Indebtedness existed at the time such Person became a
Restricted Subsidiary or of such merger, consolidation, amalgamation or acquisition and was not created in anticipation thereof and (B) immediately
after such Person becomes a Restricted Subsidiary or such merger, consolidation, amalgamation or acquisition, (x) no Default shall
have occurred and be continuing, and (y) the Borrower shall be in pro forma compliance with Section 6.10 (whether or not the
Testing Condition is satisfied) and (ii) any Refinancing Indebtedness of such Indebtedness described in clause (i);
(k) Indebtedness
constituting Investments not prohibited under Section 6.11 (other than Section 6.11(g));
(l) Indebtedness
in respect of bid, performance, surety bonds or completion bonds issued for the account of the Borrower or any Restricted Subsidiary
in the ordinary course of business, including guarantees or obligations of the Borrower or any Restricted Subsidiary with respect to
letters of credit supporting such bid, performance, surety or completion obligations;
(m) Indebtedness
owed to any officers or employees of the Borrower or any Restricted Subsidiary; provided that the aggregate principal amount of
all such Indebtedness shall not exceed $15,000,000 at any time outstanding;
(n) Indebtedness
arising or incurred as a result of or from the adjudication or settlement of any litigation or from any arbitration or mediation award
or settlement, in any case involving the Borrower or any Restricted Subsidiary, provided that the judgment, award(s) and/or
settlements to which such Indebtedness relates would not constitute an Event of Default under Section 7.01(j);
(o) indemnification,
adjustment of purchase price, deferred purchase price, contingent consideration or other compensation or similar obligations, in each
case, incurred or assumed in connection with the acquisition or disposition of any business or assets of the Borrower or any Restricted
Subsidiary or Equity Interests of a Restricted Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all
or any portion of such business, assets or Equity Interests for the purpose of financing or in contemplation of any such acquisition;
provided that, in the case of a disposition, the maximum aggregate liability in respect of all such obligations incurred or assumed
in connection with such disposition outstanding under this clause (o) shall at no time exceed the gross proceeds (including Fair
Market Value of noncash proceeds measured at the time such noncash proceeds are received) actually received by the Borrower and the Restricted
Subsidiaries in connection with such disposition;
(p) unsecured
Indebtedness in respect of obligations of the Borrower or any of its Restricted Subsidiaries 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 (which require that all such payments be made within 60 days after
the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money;
(q) letters
of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of
credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(r) Indebtedness
arising (A) 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; provided, however, that such Indebtedness is extinguished within five Business
Days of incurrence, (B) under any customary cash pooling or cash management agreement with a bank or other financial institution
in the ordinary course of business or (C) from Cash Management Obligations;
(s) Indebtedness
representing deferred compensation incurred in the ordinary course of business;
(t) Indebtedness
arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(u) Indebtedness
supported by a letter of credit, bank guarantee or similar instrument, in principal amount not in excess of the stated amount of such
letter of credit, bank guarantee or similar instrument;
(v) the
disposition of accounts receivable in connection with receivables factoring arrangements in the ordinary course of business;
(w) (i) Indebtedness
of the Borrower consisting of obligations for the payment of letters of credit in commitment amounts under this clause (w) not to
exceed $30,000,000 in the aggregate at the time of incurrence, excluding any commitment amounts for letters of credit issued pursuant
to Indebtedness incurred under any other clause of this Section 6.01 and (ii) any Refinancing Indebtedness thereof;
(x) any
guarantee by the Borrower or any of its Restricted Subsidiaries, in the ordinary course of business, of obligations of suppliers, customers,
franchisees and licensees of the Borrower or any of its Restricted Subsidiaries;
(y) (i) Indebtedness
of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures or Unrestricted Subsidiaries in an aggregate
principal amount under this clause (y) not to exceed the greater of (x) $112,000,000 and (y) 25.0% of Consolidated EBITDA
for the then most recently ended Test Period and (ii) any Refinancing Indebtedness thereof;
(z) unsecured
intercompany Indebtedness owed by the Borrower or any of its Restricted Subsidiaries to a member of the IAC Group (the “IAC
Debt Facility”), so long as (I) in respect of each borrowing, on a pro forma basis after giving effect thereto and the
use of proceeds thereof the Consolidated Net Leverage Ratio is equal to or less than 4.25 to 1.00 (excluding any cash constituting proceeds
of such Indebtedness), (II) no Default or Event of Default shall have occurred and be continuing or would exist after giving effect
thereto, (III) such Indebtedness (w) has a scheduled final maturity date of at least 90 days after the then Latest Maturity
Date and any then outstanding Incremental Facility and such Indebtedness shall not require any mandatory prepayments other than in connection
with a change of control, (x) shall not require scheduled amortization payments, (y) shall have no financial maintenance covenants
of a different type than the financial covenant set forth in Section 6.10, and no financial maintenance covenants that are more
restrictive than the financial covenant set forth in Section 6.10, and (z) does not have negative covenants and/or default
provisions that are, taken as a whole, materially more restrictive than those applicable to this Agreement as determined in good faith
by the Borrower and (VI) no subsidiary of the Borrower other than a Subsidiary Guarantor shall be an obligor under such Indebtedness;
(aa) (i) Indebtedness
of Loan Parties in an aggregate principal amount under this clause (aa) not to exceed the greater of (x) $336,000,000 and (y) 75.0%
of Consolidated EBITDA for the then most recently ended Test Period; provided
that any Indebtedness Incurred pursuant to the Cash Capped Amount in reliance upon the Reallocated General Basket Amount utilizing the
amounts available pursuant to this Section 6.01(aa)(i) that remains outstanding under such Cash Capped Amount shall reduce
the amounts available pursuant to this Section 6.01(aa)(i) and (ii) any Refinancing Indebtedness thereof; and
(bb) (i) Indebtedness
arising, directly or indirectly and whether pursuant to the Current Deed of Guarantee, any replacement of it, any order of any Governmental
Authority or otherwise in relation to the UK Scheme in existence on the Closing Date and (ii) Refinancing Indebtedness thereof.;
(cc)
(i) to the extent constituting Indebtedness, obligations incurred in connection with
any Permitted Securitization (including in respect of any Standard Securitization Undertakings) and (ii) any Refinancing Indebtedness
thereof; and
Accrual of interest, the accretion of accreted value
and the payment of interest in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes
of this Section 6.01. For purposes of determining compliance with this Section 6.01, (i) Indebtedness need not be incurred
solely by reference to one category of described in this Section 6.01 but may be incurred under any combination of such categories
(including in part under one such category and in part under any other such category) and (ii) in the event that Indebtedness incurred
pursuant to this Section 6.01 meets the criteria of more than one of the types of Indebtedness described in this Section 6.01,
the Borrower, in its sole discretion, shall classify, or later divide, classify or reclassify (as if incurred at such later time) such
item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of this Section 6.01
(including in part under one such clause and in part under another such clause).
SECTION 6.02 Liens.
The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) Permitted
Encumbrances;
(b) any
Lien on any property or asset of the Borrower or any Restricted Subsidiary (or any improvements or accession thereto or proceeds therefrom)
existing on the Closing Date and set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any other property
or asset of the Borrower or any Restricted Subsidiary and (ii) such Lien shall secure only those obligations which it secures on
the Closing Date and any Refinancing Indebtedness in respect thereof;
(c) any
Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary or existing on any
property or asset of any Person that becomes a Restricted Subsidiary after the Closing Date prior to the time such Person becomes a Restricted
Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such
Person becoming a Restricted Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the
Borrower or any Restricted Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Restricted Subsidiary, as the case may be, and any Refinancing Indebtedness in respect
thereof;
(d) Liens
securing Indebtedness of the Borrower or any Restricted Subsidiary incurred pursuant to Section 6.01(c); provided that (i) such
Liens are incurred prior to or within 270 days after such acquisition or the completion of such construction and improvement with the
acquisition of such fixed or capital assets, and (ii) such Liens do not at any time encumber any of its existing property other
than the property financed by such Indebtedness;
(e) deposits,
reserves and other Liens securing credit card operations of the Borrower and its Restricted Subsidiaries;
(f) Liens
created by the Collateral Documents or otherwise securing the Obligations;
(g) Liens
on the Collateral securing Permitted Secured Ratio Debt;
(h) Liens
securing Indebtedness or other obligations of the Borrower or any Restricted Subsidiary (including any Guarantees thereof) in an aggregate
principal amount not to exceed the greater of (x) $336,000,000 and (y) 75.0% of Consolidated EBITDA for the then most recently
ended Test Period;
(i) Liens
securing Guarantees of Permitted Secured Ratio Debt and Indebtedness permitted pursuant to Section 6.01(a); provided that,
with respect to any such Liens securing Guarantees of Permitted Secured Ratio Debt an intercreditor agreement reasonably satisfactory
to the Administrative Agent with respect to such Liens is in effect atsubstantially
concurrently with the incurrence of such timeIndebtedness;
(j) Liens
that do not secure Indebtedness and do not interfere with the material operations of the Borrower and the Restricted Subsidiaries and
do not individually or in the aggregate materially impair the value of the assets of the Borrower and the Restricted Subsidiaries;
(k) Liens
deemed to secure Capital Lease Obligations incurred in connection with any sale and leaseback transaction permitted by Section 6.08;
(l) licenses,
sublicenses, leases or subleases that do not interfere in any material respect with the business of the Borrower or any Restricted Subsidiary;
(m) any
interest or title of a lessor or sublessor under, and Liens arising from Uniform Commercial Code financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions) relating to, leases and subleases permitted hereunder;
(n) normal
and customary rights of setoff upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision
relating to bankers liens, rights of setoff or similar rights in favor of banks or other depository institutions and not securing any
Indebtedness;
(o) Liens
of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection;
(p) Liens
solely on any cash earnest money deposits made by the Borrower or any Restricted Subsidiary in connection with any letter of intent or
purchase agreement in respect of any acquisition or other investment by the Borrower or any Restricted Subsidiary;
(q) Liens
on assets of Non-Loan Parties securing Indebtedness permitted pursuant to Sections 6.01(d) and (e);
(r) any
extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clause (b),
(c), (d), (f), (g), (h) (without refreshing the availability
of such clause), (i) or (q); provided that with respect to clauses
(b), (c), (d), (f) and (h), (x) the obligations
secured thereby shall be limited to the obligations secured by the Lien so extended, renewed or replaced (and, to the extent provided
in such clauses, extensions, renewals and replacements thereof) plus, in the case of clauseclauses
(f) and (h), the amount of accrued and unpaid interest on the Indebtedness or other obligations being refinanced, any premium
(including tender premiums) paid to the holders of the Indebtedness
or other obligations being refinanced and other costs and expenses (including fees anddefeasance
costs, commissions, underwriting discounts, fees and other expenses)
incurred in connection with the incurrence of the Indebtedness or other obligations being refinanced and (y) such Lien shall be
limited to all or a part of the assets that secured the Lien so extended, renewed or replaced;
(s) Liens
encumbering deposits made to secure obligations arising from common law, statutory, regulatory, contractual or warranty requirements
of the Borrower or any Restricted Subsidiary, including rights of offset and setoff;
(t) Liens
securing Hedging Obligations entered into for bona fide hedging purposes of the Borrower or any Restricted Subsidiary not for
the purpose of speculation;
(u) Liens
in favor of a Loan Party;
(v) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods and Liens in the ordinary course of business in favor of issuers of performance and surety bonds or bid bonds or with respect
to health, safety and environmental regulations (other than for borrowed money) or letters of credit or bank guarantees issued to support
such bonds or requirements pursuant to the request of and for the account of such Person in the ordinary course of business;
(w) Interests
of vendors in inventory arising out of such inventory being subject to a “sale or return” arrangement with such vendor or
any consignment by any third party of any inventory;
(x) Liens
securing Indebtedness owed by (a) a Restricted Subsidiary to the Borrower or to any other Restricted Subsidiary that is a Subsidiary
Guarantor or (b) the Borrower to a Subsidiary Guarantor;
(y) Liens
securing obligations pursuant to cash management agreements and treasury transactions; and
(z) Liens
arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect
of goods supplied to the Borrower and its Restricted Subsidiaries in the ordinary course of trading and on the supplier’s standard
or usual terms; and
(aa) Liens
in respect of Permitted Securitizations on (i) Securitization Assets to be sold, transferred or otherwise Disposed (or sold, transferred
or otherwise Disposed or purported to be sold, transferred or otherwise Disposed) to a Securitization Subsidiary in connection with a
Securitization, (ii) deposit or other accounts into which obligors of Securitization Assets remit payment and (iii) Equity
Interests of Securitization Subsidiaries;
provided
that, at any time, no voluntary Lien shall be created, incurred, assumed or permitted to exist on any Equity Interests of
any Restricted Subsidiary required to be pledged to secure the Obligations hereunder other than (i) Permitted Encumbrances described
in clauses (a), (b) and (e) of the definition of “Permitted Encumbrances,” (ii) Liens securing the Obligations
and (iii) Liens securing Permitted Secured Ratio Debt (and Liens securing Guarantees thereof permitted by Section 6.02(i)).
For purposes of determining compliance with this
Section 6.02, (i) any Lien need not be incurred solely by reference to one category of described in this Section 6.02
but may be incurred under any combination of such categories (including in part under one such category and in part under any other such
category) and (ii) in the event that any Lien incurred pursuant to this Section 6.02 meets the criteria of more than one of
the types of Lien described in this Section 6.02, the Borrower, in its sole discretion, shall classify, or later divide, classify
or reclassify (as if incurred at such later time), such Lien and may include the amount and type of such Lien in one or more of the clauses
of this Section 6.02 (including in part under one such clause and in part under another such clause).
SECTION 6.03 Fundamental
Changes. The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or otherwise Dispose of (in one transaction or in a series of related
transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Restricted Subsidiaries
(in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing:
(i) any
Person may merge or be consolidated with or into the Borrower in a transaction in which the Borrower is the continuing or surviving Person;
(ii) any
Person (other than the Borrower) may merge or consolidate with or into any Restricted Subsidiary in a transaction in which the surviving
entity is or becomes a Restricted Subsidiary; provided that, if such Person is a Subsidiary Guarantor, the surviving entity is
the Borrower or is or substantially concurrently becomes a Subsidiary Guarantor;
(iii) any
merger, consolidation, Disposition, liquidation or dissolution not prohibited by Sections 6.04, 6.05 and 6.11 shall be permitted;
(iv) any
Restricted Subsidiary may Dispose of all or substantially all of its assets, or all or substantially all of the stock of its Restricted
Subsidiaries, in each case to the Borrower or to another Restricted Subsidiary or to any Person who becomes a Restricted Subsidiary in
connection with such Disposition, and the Borrower may Dispose of substantially all of its assets, or substantially all of the stock
of its Restricted Subsidiaries, in each case to any Restricted Subsidiary or to any Person who becomes a Restricted Subsidiary in connection
with such Disposition;
(v) any
Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the
Borrower may (x) merge into or consolidate with any other Person, or (y) Dispose of substantially all (as determined by the
Borrower) of its assets, or substantially all (as determined by the Borrower) of the stock of its direct subsidiaries to, any Restricted
Subsidiary; provided, in each case, that the Person formed by or surviving such consolidation or merger or to which such Disposition
is made (such Person, the “Successor Borrower”) is an entity organized and existing under the laws of any State of
the United States of America or the District of Columbia, and the Successor Borrower expressly assumes, by a Joinder and Reaffirmation
Agreement, all of the obligations of the Borrower under this Agreement and each other Loan Document to which the Borrower is a party
and takes all actions required by the Collateral Documents to perfect the Liens on the Collateral owned by the Successor Borrower; provided,
further, that as of the date of such assumption pursuant this clause (vi),
(A) on
a pro forma basis after giving effect to such assumption, the Consolidated Net Leverage Ratio of the Successor Borrower is equal to or
less than 5.50 to 1.00,
(B) each
other Loan Party shall have reaffirmed such Loan Party’s obligations under the Loan Documents to which it is a party by executing
and delivering a Joinder and Reaffirmation Agreement,
(C) the
Administrative Agent shall have received a certificate, dated the date of such assumption and signed by the Chief Executive Officer,
a Vice President, a Financial Officer of the Successor Borrower or any other executive officer of the Successor Borrower who has specific
knowledge of the Successor Borrower’s financial matters and is reasonably satisfactory to the Administrative Agent, confirming
that (x) after giving effect to such assumption, no Default or Event of Default has occurred and is continuing, (y) after giving
effect to such assumption, the representations and warranties of each Loan Party set forth in the Credit Agreement and the Collateral
Documents are true and correct in all material respects (except to the extent that any such representation and warranty is qualified
by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects)
as of the date of such assumption, except to the extent that any such representation and warranty relates to an earlier date (in which
case such representation and warranty shall have been true and correct in all material respects (except to the extent that any such representation
and warranty is qualified by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and
correct in all respects) as of such earlier date and (z) such merger, consolidation or Disposition complies with this Agreement,
(D) the
Administrative Agent shall have received (x) a certificate of the Successor Borrower substantially in the form of Exhibit E,
including all annexes, exhibits and other attachments thereto and (y) if requested by the Administrative Agent, an opinion of counsel
covering such matters, and in a form, substantially the same as previously provided to the Administrative Agent under Section 4.03(b) to
the extent applicable,
(E) the
Borrower shall have provided any documentation and other information about the Successor Borrower as shall have been reasonably requested
in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory
authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III
of the Act and the Beneficial Ownership Regulation, and
(F) in
the case of a Disposition under clause (y) of this clause (vi), any assets of the Borrower that are not transferred to the Successor
Borrower shall be deemed to be a Restricted Payment by the Successor Borrower, and such Restricted Payment shall be subject to compliance
with Section 6.05;
provided
that Section 6.03(vi) shall not apply to a Disposition pursuant to clause (y) above unless the Borrower notifies
the Administrative Agent that it has elected to rely on this Section 6.03(vi) to transfer the obligations of the “Borrower”
hereunder and the other Loan Documents to a Successor Borrower. Upon any consolidation, merger or Disposition with respect to which this
Section 6.03(vi) applies, the Successor Borrower shall succeed to, and be substituted for, and may exercise every right and
power of, the Borrower under this Agreement and the other Loan Documents, with the same effect as if such Successor Borrower had been
named as the Borrower herein and therein, and with respect to any such Disposition the entity succeeded as Borrower shall be released
from the obligation to pay the principal of and interest on the Loans and all of the Borrower’s other obligations and covenants
under this Agreement and the other Loan Documents; and
(vii) the
Borrower and its Restricted Subsidiaries may consummate any merger, consolidation, Disposition, liquidation or dissolution in connection
with the consummation of the Transactions.
SECTION 6.04 Disposition
of Property. The Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset
Sale (other than Asset Sales in connection with any sale and leaseback transaction permitted by Section 6.08) unless at the time
of such transaction and after giving effect thereto and to the use of proceeds thereof (i) no Default shall have occurred and be
continuing and (ii) the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the
Fair Market Value of the assets sold or otherwise Disposed of, and (iii) in the case of an Asset Sale other than an Asset Swap if
after giving pro forma effect to such Asset Sale the Consolidated Net Leverage Ratio is greater than 5.50 to 1.00, at least 75%
of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents; provided that the amount of:
(i) any
liabilities (as reflected in the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes
thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Borrower’s
or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on the
date of such balance sheet) of the Borrower or such Restricted Subsidiary other than liabilities that are by their terms subordinated
in right of payment to the Loans, that are assumed by the transferee of any such assets and for which the Borrower and all of its Restricted
Subsidiaries have been validly released by all creditors in writing,
(ii) any
securities, notes or other similar 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 so converted) within 180 days following the
closing of such Asset Sale, and
(iii) any
Designated Noncash Consideration received by the Borrower or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (iii) that is at that time
outstanding, not to exceed an amount equal to the greater of (x) $112,000,000 and (y) 25.0% of Consolidated EBITDA for the
then most recently ended Test Period at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value
of each item of Designated Noncash 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 for purposes of this
provision and for no other purpose.
Notwithstanding anything to the contrary in this Section 6.04,
the Borrower and the Restricted Subsidiaries shall not, directly or indirectly, sell or otherwise transfer any Material Intellectual
Property to any Unrestricted Subsidiary.
SECTION 6.05 Restricted
Payments. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly,
any Restricted Payment, except:
(i) the
payment by the Borrower or any Restricted Subsidiary of any dividend or the consummation of any irrevocable redemption within 60 days
after the date of declaration thereof or giving the notice of the redemption, if on the date of declaration or notice the payment would
have complied with the provisions of this Agreement (assuming, in the case of redemption, the giving of the notice would have been deemed
to be a Restricted Payment at such time and such deemed Restricted Payment would have been permitted at such time);
(ii) the
Borrower may declare or make a Restricted Payment with respect to its Equity Interest payable solely in Qualified Equity Interests or
redeem any of its Equity Interests in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified
Equity Interests or through accretion or accumulation of such dividends on such Equity Interests; provided that the issuance of
such Equity Interests shall not be duplicative of any such issuance of such Equity Interests included in any determination of the Available
Amount;
(iii) repurchase,
redemption or other acquisition for value by the Borrower of, Equity Interests of the Borrower or any publicly traded entity that is
a direct or indirect parent of Borrower held by officers, directors or employees or former officers, directors or employees of the
Borrower or any publicly traded entity that is a direct or indirect parent of Borrower and any Restricted Subsidiary (or their
transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of
employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed the
greater of $10,000,000 and 2.5% of Consolidated EBITDA during any twelve consecutive months (with unused amounts in any period being
carried over to succeeding periods); provided, further, that cancellation of Indebtedness owing to the Borrower or any
Restricted Subsidiary from any current or former officer, director or employee (or any permitted transferees thereof) of the
Borrower or any of its Restricted Subsidiaries (or any direct or indirect parent company thereof), in connection with a repurchase
of Equity Interests of such entity from such Persons will not be deemed to constitute a Restricted Payment for purposes of this
covenant or any other provisions of this Agreement;
(iv) (A) repurchases
of Equity Interests of the Borrower or any other entity that is a direct or indirect parent of Borrower (a) deemed to occur upon
the exercise of stock options, warrants, or similar rights if the Equity Interests represent all or a portion of the exercise price thereof,
(b) in connection with the satisfaction of any withholding Tax obligations incurred relating to the vesting or exercise of stock
options, warrants, restricted stock units or similar rights or (c) prior to the date, if any, that the Borrower is no longer a Subsidiary
of the IAC Group, solely to offset the dilution of the IAC Group’s Equity Interests in the Borrower as a result of the exercise
of stock options, warrants, restricted stock units or similar rights after the date hereof and for the purpose of maintaining tax consolidation
with the IAC Group (as determined by the Borrower); provided that, with respect to this clause (c), immediately prior to and after
giving effect to any such repurchase, the IAC Group shall own not less than 80% by vote and value and not greater than 83% by vote and
value of the Equity Interests of the Borrower that are treated as “stock” for purposes of Section 1504(a)(2) of
the Code and (B) to the extent constituting Restricted Payments, any
distribution or other payment from the Borrower to IAC, or any other entity that is a direct or indirect parent of the Borrower, to reimburse
IAC (or any such parent entity) for the value of the Equity Interests of IAC (or any such parent entity) issued in connection with the
employee compensation programs described in the foregoing clauses (a) and (b) and other employee compensation programs (including
programs in respect of stock options, warrants, restricted stock units and similar rights), including any Taxes, costs and expenses incurred
by IAC (or any such parent entity);
(v) any
Restricted Payment made out of the net cash proceeds of the substantially concurrent sale of, or made by exchange for, Qualified Equity
Interests of the Borrower (other than Qualified Equity Interests issued or sold to a Restricted Subsidiary of the Borrower or an employee
stock ownership plan or to a trust established by the Borrower or any of its Restricted Subsidiaries for the benefit of their employees)
or a substantially concurrent cash capital contribution received by the Borrower from its stockholders; provided that such net
cash proceeds shall not be duplicative of any such net cash proceeds included in the determination of the Available Amount;
(vi) payments
or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or
transfer of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries that complies with the provisions
of Section 6.03;
(vii) any
Restricted Subsidiary may declare or make a Restricted Payment with respect to the Equity Interests of such Restricted Subsidiary to
the Borrower or any other Restricted Subsidiary (and, in the case of a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to
each owner of Equity Interests of such Restricted Subsidiary such that the Borrower or Restricted Subsidiary receives at least its pro
rata share of such dividend or distribution);
(viii) Restricted
Payments in an aggregate amount not to exceed the greater of (x) $112,000,000 and (y) 25.0% of Consolidated EBITDA for the
then most recently ended Test Period;
(ix) Restricted
Payments in connection with the Transactions;
(x) Restricted
Payments so long as after giving effect thereto on a pro forma basis, (i) the Consolidated Net Leverage Ratio is equal to or less
than 4.00 to 1.00 and (ii) no Default shall have occurred and be continuing;
(xi) the
Borrower and its Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower:
(A) the
proceeds of which will be used to pay the consolidated, combined or similar income tax liability of such parent’s income tax group
that is attributable to the income of the Borrower or its subsidiaries; provided that (x) no such payments with respect to
any taxable period shall exceed the amount of such income tax liability that would have been imposed on the Borrower and/or the applicable
subsidiaries for such taxable period had such entity(ies) filed as a stand-alone corporation or a stand-alone consolidated tax group,
as applicable, for all applicable taxable periods and (y) any such payments attributable to an Unrestricted Subsidiary shall be
limited to the amount of any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose;
(B) the
proceeds of which shall be used to pay such equity holder’s operating costs and expenses, other overhead costs and expenses and
fees, in each case, which are directly attributable to the ownership or operations of the Borrower and its subsidiaries; or
(C) the
proceeds of which shall be used to pay customary salary, bonus and other benefits payable to, and indemnities provided on behalf of,
officers and employees of any direct or indirect parent of the Borrower to the extent such salaries, bonuses, other benefits and indemnities
are directly attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(xii) any
Junior Debt Restricted Payments; provided that, at the time of, and after giving effect thereto on a pro forma basis (x) the
Consolidated Net Leverage Ratio is equal to or less than 4.00 to 1.00 and (y) no Default shall have occurred and be continuing;
(xiii) following
the consummation of a Qualified IPO, Restricted Payments in an annual amount for each fiscal year of the Borrower not to exceed 6.00%
of the net proceeds received by or contributed to the Borrower from any such Qualified IPO; provided that no Default shall have
occurred and be continuing;
(xiv) Restricted
Payments in an amount not to exceed the portion of the Available Amount on the date of such election that the Borrower elects to apply
to this Section 6.05(xiv); provided that after giving effect thereto on a pro forma basis no Default or Event of Default
shall have occurred and be continuing; and
(xv) Restricted
Payments made with the proceeds of Indebtedness permitted under Section 6.01 in an aggregate amount not to exceed $1,600,000,000
less the greater of (x) the unfunded portion of the $850,000,000 bridge facility of the IAC Group on the Closing Date and (y) the
funded Indebtedness of the Borrower on the Closing Date.
For purposes of determining compliance with this
Section 6.05, (i) any Restricted Payment need not be made solely by reference to one category of described in this Section 6.05
but may be made under any combination of such categories (including in part under one such category and in part under any other such
category) and (ii) in the event that Restricted Payments made pursuant to this Section 6.05 meets the criteria of more than
one of the categories of Restricted Payments described in this Section 6.05, the Borrower, in its sole discretion, shall classify,
or later divide, classify or reclassify (as if incurred at such later time) such Restricted Payment and may include the amount and type
of such Restricted Payment in one or more of the clauses of this Section 6.05 (including in part under one such clause and in part
under another such clause).
SECTION 6.06 Transactions
with Affiliates. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions
(including amendments or modifications to prior or existing transactions) with, any of its Affiliates involving payment or consideration
in excess of the greater of (x) $26,880,000 and (y) 6.0% of Consolidated EBITDA for the then most recently ended Test Period,
except:
(a) for
transactions at prices and on terms and conditions not less favorable to the Borrower or such Restricted Subsidiary than could be obtained
on an arm’s-length basis from unrelated third parties, as determined by the Borrower (or
in the event there are no comparable transactions involving persons who are not Affiliates of the Borrower or the relevant Restricted
Subsidiary to apply for comparative purposes, on terms that, taken as a whole, the Borrower has determined to be fair to the Borrower
or the relevant Restricted Subsidiary);
(b) transactions
between or among the Borrower and its Restricted Subsidiaries not involving any other Affiliate;
(c) pursuant
to, as determined by the Borrower, reasonable director, officer and employee compensation (including bonuses) and other benefits (including
retirement, health, and stock compensation plans) and indemnification arrangements and performance of such arrangements;
(d) any
Restricted Payment permitted by Section 6.05 and any transaction permitted by Sections 6.04 and 6.03;
(e) ordinary
course overhead arrangements in which any Restricted Subsidiary or Unrestricted Subsidiary participates;
(f) any
Investment permitted by Section 6.11;
(g) (x) any
agreement or arrangement in effect on the Closing Date and any amendment or replacement thereof that is not more disadvantageous to the
Lenders in any material respect than the agreement or arrangement in effect on the Closing Date, as determined in good faith by the Borrower;
(y) any agreement or arrangement between the Borrower or any of its Restricted Subsidiaries on the one hand and any direct or indirect
parent of Borrower on the other hand of a type that is customarily entered into by a publicly traded entity or its subsidiaries and a
publicly traded parent of such entity (or a subsidiary of such publicly traded parent), as determined in good faith by the Borrower,
or (z) any transaction pursuant to any agreement or arrangement referred to in the immediately preceding clause (x) or clause
(y);
(h) any
transaction with a joint venture or similar entity which would be subject to this Section 6.06 solely because the Borrower or a
Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity;
(i) any
transaction entered into by a Person prior to the time such Person becomes a Restricted Subsidiary or is merged or consolidated with
or into the Borrower or a Restricted Subsidiary;
(j) any
transaction with an Affiliate where the only consideration paid by the Borrower or any Restricted Subsidiary is Qualified Equity Interests;
(k) the
issuance or sale of any Qualified Equity Interests;
(l) any
issuance of securities, or other payments, awards or grants in cash, securities or otherwise, in each case pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans in the ordinary course of business; and
(m) any
employment agreements entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business and the transactions
pursuant thereto; and
(n) transactions
related to any Permitted Securitization.
SECTION 6.07 Changes
in Fiscal Periods. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, change its fiscal year to end
on a day other than December 31 or change its method of determining fiscal quarters.
SECTION 6.08 Sales
and Leasebacks. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter into any arrangement with
any Person (other than the Borrower or a Restricted Subsidiary) providing for the leasing by the Borrower or any Restricted Subsidiary
of real or personal property that has been or is to be sold or transferred by the Borrower or any Restricted Subsidiary to such Person
or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations
of the Borrower or any Restricted Subsidiary unless (i) the lease in such arrangement is a capital lease and such capital lease
may be entered into at such time pursuant to Sections 6.01 and 6.02 or (ii) the lease in such arrangement is not a capital lease
and either (a) the aggregate proceeds from such arrangement and other such arrangements since the Closing Date do not exceed the
greater of (x) $48,000,000 and (y) 10.0% of Consolidated EBITDA for the then most recently ended Test Period after giving effect
thereto on a pro forma basis or (b) the property in such arrangement was owned by the Target on the Closing Date and located in
Des Moines, Iowa.
SECTION 6.09 Clauses
Restricting Subsidiary Distributions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on or in respect of its Equity Interests held by the Borrower or
a Restricted Subsidiary, (b) make loans or advances or pay any Indebtedness or other obligation owed to the Borrower or any Subsidiary
Guarantor or (c) transfer any of its assets to the Borrower or any Subsidiary Guarantor, except for such encumbrances or restrictions
existing under or by reason of:
(i) any
encumbrances or restrictions existing under this Agreement and the other Loan Documents;
(ii) encumbrances
or restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into in connection with
the Disposition of all or substantially all of the capital stock or assets of such Restricted Subsidiary;
(iii) encumbrances
or restrictions under any agreement governing Capital Lease Obligations secured by Liens permitted by Section 6.02, so long as such
restrictions apply only to the assets subject to such Liens or relating to such Capital Lease Obligations, as the case may be;
(iv) encumbrances
or restrictions under any agreement listed on Schedule 6.09 as in effect on the Closing Date;
(v) encumbrances
or restrictions under any agreement of any Person that becomes a Restricted Subsidiary after the Closing Date that existed prior to the
time such Person became a Restricted Subsidiary; provided that such restrictions are not created in contemplation of or in connection
with such acquisition;
(vi) any
other instrument or agreement entered into after the Closing Date that contains encumbrances and restrictions that, as determined by
the Borrower, will not materially adversely affect the Borrower’s ability to make payments on the Loans;
(vii) encumbrances
or restrictions existing under or by reason of applicable law, regulation or order;
(viii) non-assignment
provisions of any contract or lease entered into in the ordinary course of business;
(ix) encumbrances
or restrictions imposed under any agreement to sell assets, including Qualified Equity Interests of such Restricted Subsidiary, permitted
under this Agreement to any Person pending the closing of such sale;
(x) encumbrances
or restrictions relating to any Lien permitted under this Agreement imposed by the holder of such Lien that limit the right of the relevant
obligor to transfer assets that are subject to such Lien;
(xi) encumbrances
or restrictions relating to any Lien on any asset or property at the time of acquisition of such asset or property by the Borrower or
any Restricted Subsidiary;
(xii) customary
provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements, shareholder
agreements and other similar agreements that restrict the transfer of ownership interests in such partnership, limited liability company,
joint venture, corporation or similar Person;
(xiii) encumbrances
or restrictions on cash or other deposits or net worth imposed by suppliers, customers or landlords under contracts entered into in the
ordinary course of business;
(xiv) Indebtedness
incurred in compliance with Section 6.01(c) that imposes restrictions of the nature described in clause (c) above on the
assets acquired;
(xv) with
respect to clause (c) only, any encumbrance or restriction consisting of customary nonassignment provisions in leases governing
leasehold interests, licenses, joint venture agreements and agreements similar to any of the foregoing to the extent such provisions
restrict the transfer of the property subject to such leases, licenses, joint venture agreements or similar agreements;
(xvi) with
respect to clause (c) only, any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of
a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security
agreements or mortgages;
(xvii) any
encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements
or refinancings of the contracts, agreements, instruments or obligations referred to in this Section 6.09; provided that,
as determined by the Borrower, such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements
or refinancings (a) are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such
amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings or (b) will
not materially adversely affect the Borrower’s ability to make payments on the Loans; and
(xviii) any
encumbrances or restrictions in connection with any pension scheme of the Target and its Subsidiaries as of the Closing Date;
and
(xix) any
encumbrances or restrictions in agreements arising as a result of or related to any Permitted Securitization (including in respect of
Standard Securitization Undertakings).
SECTION 6.10 Consolidated
Net Leverage Ratio. As of the last day of any Test Period ending on or after March 31, 2022, if the Testing Condition is satisfied,
then the Borrower will not permit the Consolidated Net Leverage Ratio as of the last day of such Test Period to exceed 5.50 to 1.00;
provided that, subject to the limitations set forth in the definition of Qualifying Material Acquisition (including the delivery
of a QMA Notice within the required time period set forth in the definition of Qualifying Material Acquisition), such ratio shall be
increased to 6.00 to 1.00 for four consecutive full fiscal quarters (and no other fiscal quarters) commencing with, and including, the
fiscal quarter in which the relevant Qualifying Material Acquisition is consummated (such period, the “Financial Covenant Increase
Period”); provided, further, that upon a return to a maximum Consolidated Net Leverage Ratio of 5.50 to1.00
after any such election, such level must be maintained for at least two full fiscal quarters before the Borrower can make an election
for the commencement of a new Financial Covenant Increase Period; provided, further, that there shall be no more than
two Financial Covenant Increase Periods during the life of the Facilities since the Closing Date.
SECTION 6.11 Investments.
The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any advance, loan, extension of credit (by way
of Guarantee or otherwise) or capital contribution to, or purchase any Equity Interests, bonds, notes, debentures or other debt securities
of, or any assets constituting a business unit of, or incur any Unrestricted Subsidiary Support Obligations with respect to, any other
Person (all of the foregoing, “Investments”) except:
(a) extensions
of trade credit and credit to customers in the ordinary course of business;
(b) Investments
in cash and Cash Equivalents and Investments that were Cash Equivalents when made;
(c) loans
and advances to directors, employees and officers of the Borrower or any Restricted Subsidiary in the ordinary course of business (including
for travel, entertainment and relocation expenses) in an aggregate principal amount for the Borrower and its Restricted Subsidiaries
not to exceed the greater of $10,000,000 and 2.5% of Consolidated EBITDA at any one time outstanding;
(d) Investments
made by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary or any Person who becomes a Restricted
Subsidiary in connection with such Investment;
(e) Investments
made at any time if, after giving pro forma effect thereto, (i) the Consolidated Net Leverage Ratio is equal to or less than 4.00
to 1.00 and (ii) no Event of Default shall have occurred and be continuing;
(f) any
Investment (x) existing on the Closing Date or (y) made pursuant to binding commitments existing on the Closing Date and, in
the case of clause (y), disclosed to the Lenders in writing on the Closing Date;
(g) Investments
not prohibited by Section 6.05;
(h) Investments
in Unrestricted Subsidiaries in an aggregate amount not to exceed (I) $85,000,000 plus (II) $45,000,000 in any fiscal
year (with unused amounts pursuant to this clause (II) permitted to be carried over to succeeding fiscal years up to an aggregate
total amount in any fiscal year not to exceed $125,000,000); provided that after giving pro forma effect to each such Investment,
no default shall have occurred and be continuing;
(i) Guarantees
not prohibited by Section 6.01;
(j) Investments
to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower; provided that the issuance
of such Equity Interests shall not be duplicative of any such issuance of such Equity Interests included in any determination of the
Available Amount;, chattel paper and notes receivable arising from the sale or lease of goods or the performance of services in the ordinary
course of business;
(k) Investments
received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, suppliers and customers arising in the ordinary course of business;
(l) Investments,
including in joint ventures of the Borrower or any Restricted Subsidiary, in an amount not to exceed at any one time outstanding the
greater of (x) $224,000,000 or (y) 50.0% of Consolidated EBITDA for the then most recently ended Test Period;
(m) Investments
arising out of the receipt by the Borrower or a Restricted Subsidiary of noncash consideration for the sale of assets permitted under
Section 6.04;
(n) Guarantees
by the Borrower or any Restricted Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that
do not constitute Indebtedness, in each case entered into by the Borrower or Restricted Subsidiary in the ordinary course of business;
(o) lease,
utility and other similar deposits in the ordinary course of business;
(p) Investments
by the Borrower and its Restricted Subsidiaries, if the Borrower or any Restricted Subsidiary would otherwise be permitted to make a
Restricted Payment under Section 6.05(viii) or (ix) in such amount; provided that the amount of any such Investment
shall be deemed to be a Restricted Payment under the applicable clause for all purposes under this Agreement;
(q) Investments
in Unrestricted Subsidiaries (i) arising in the ordinary course of business related to cash management, payroll, accounts payable,
insurance and other similar expenses, which in the Borrower’s good faith determination will be promptly reimbursed by such Unrestricted
Subsidiaries or (ii) consisting of the Equity Interests or assets of an Unrestricted Subsidiary; provided that any such Investment
made in reliance on this clause (ii) shall not increase availability under Section 6.11(h), (l) or (s) if the original
Investment in such Unrestricted Subsidiary was made in reliance on Section 6.11(h), (l) or (s);
(r) to
the extent constituting Investments, the Transactions; and
(s) Investments
in an amount not to exceed the portion of the Available Amount on the date of such election that the Borrower elects to apply to this
Section 6.11(s); provided that after giving effect thereto on a pro forma basis no Default or Event of Default shall have
occurred and be continuing; and
(t) Investments
(i) consisting of Dispositions of Securitization Assets or arising as a result of or in connection with any Permitted Securitization
or (ii) that are captured by, added to the value of or consisting of the Seller’s Retained Interests in connection with any
Permitted Securitization.
For purposes of determining compliance with this
Section 6.11, (i) any Investment need not be made solely by reference to one category of described in this Section 6.11
but may be made under any combination of such categories (including in part under one such category and in part under any other such
category) and (ii) in the event that Investments made pursuant to this Section 6.11 meets the criteria of more than one of
the categories of Investments described in this Section 6.11, the Borrower, in its sole discretion, shall classify, or later divide,
classify or reclassify (as if incurred at such later time) such Investments and may include the amount and type of such Investments in
one or more of the clauses of this Section 6.11 (including in part under one such clause and in part under another such clause).
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Borrower’s
option, but not below zero) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received
in respect of such Investment.
Notwithstanding anything to the contrary in this
Section 6.11, the Borrower and the Restricted Subsidiaries shall not, directly or indirectly, sell or otherwise transfer
any Material Intellectual Property to any Unrestricted Subsidiary.
ARTICLE VII
Events of Default
SECTION 7.01 Events
of Default. If any of the following events (“Events of Default”) shall occur:
(a) the
Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of
this Section 7.01) payable under this Agreement, when and as the same shall become due and payable, and such failure shall continue
unremedied for a period of five Business Days;
(c) any
representation or warranty made or deemed made by or on behalf of the Borrower or any other Loan Party in this Agreement or any other
Loan Document or any amendment, modification or waiver in respect thereof, or in any certificate furnished pursuant to this Agreement
or any other Loan Document or any amendment, modification or waiver in respect thereof, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) any
Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03 (with respect
to the Borrower’s existence) or 5.08 or in Article VI; provided that unless any Incremental Term Facility expressly
provides otherwise, the Borrower’s failure to perform or observe the covenant set forth in Section 6.10 shall not constitute
an Event of Default for purposes of any Term Facilities (other than the Term A Facility) unless and until the Required Financial Covenant
Lenders have actually declared all such obligations to be immediately due and payable in accordance with the Loan Documents and such
declaration has not been rescinded on or before the date on which the Lenders in respect of the Term Facilities (other than the Term
A Facility) declare an Event of Default in connection therewith pursuant to another clause of this Section 7.01 (the “Term
B Loan Standstill Period”);
(e) any
Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document
to which it is a party (other than those specified in clause (a), (b), (c) or (d) of this Section 7.01), and such failure
shall continue unremedied for a period of 30 days after written notice thereof from the Administrative Agent to the Borrower (which notice
will be given at the request of any Lender);
(f) the
Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable after any applicable grace period therefor;
(g) any
event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits
(with or without the giving of notice) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf
to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(i) the
Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of
this Section 7.01, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) one
or more judgments for the payment of money in an aggregate amount in excess of $80,000,000 (to the extent not adequately covered by insurance)
shall be rendered against the Borrower, any Material Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 60 consecutive days during which execution shall not be effectively stayed;
(k) an
ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, would reasonably be expected
to result in a Material Adverse Effect;
(l) at
any time, any Collateral Document shall cease, for any reason, to be in full force and effect, or any Loan Party shall so assert in writing,
or any security interest purported to be created by any Collateral Document and to extend to assets that constitute a material portion
of the Collateral shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected
security interest (perfected as required by this Agreement or the relevant Collateral Document and subject to such limitations and restrictions
as are set forth herein and therein) in the securities, assets or properties covered thereby, except to the extent that any such loss
of perfection results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in
Foreign Subsidiaries or the application thereof, or from (A) the Collateral Agent no longer having possession of certificates actually
delivered to it representing securities pledged under the Security Agreement or (B) a Uniform Commercial Code filing having lapsed
because a Uniform Commercial Code continuation statement was not filed in a timely manner (except, in each case, as permitted under the
Loan Documents); provided that, in the case of any failure of a security interest to be valid and perfected, no Event of Default
shall occur under this Section 7.01(l) if (i) a valid security interest shall be perfected on such Collateral within five
Business Days and (ii) following such five Business Day period, the rights, powers and privileges of the Secured Parties shall not
be materially adversely affected by such failure;
(m) this
Agreement or the Guarantee Agreement shall cease, for any reason, to be in full force and effect, or any Loan Party shall so assert in
writing, except as permitted under the Loan Documents; or
(n) Change
of Control shall occur;
then, and in every such event (other than an event with respect to
the Borrower described in clause (h) or (i) of this Section 7.01), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request of the Required Lenders (or, unless any Incremental Term Facility provides
otherwise, to the extent such Event of Default solely comprises an Event of Default arising from the Borrower’s failure to perform
or observe the covenant set forth in Section 6.10, prior to the expiration of the Term B Loan Standstill Period, at the request
of the Required Financial Covenant Lenders only, and in such case only with respect to the Revolving Commitments, Revolving Loans, any
Letters of Credit and any Term A Loans) shall, by notice to the Borrower, take any or all of the following actions, at the same or different
times: (i) terminate the Revolving Commitments, and thereupon the Revolving Commitments shall terminate immediately, (ii) declare
the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable
may thereafter be declared to be due and payable during the continuation of such event) by the Borrower, and thereupon the principal
of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind (other
than notice from the Administrative Agent), all of which are hereby waived by the Borrower and (iii) require all outstanding Letters
of Credit to be cash collateralized in accordance with Section 2.17(k); provided, that neither the Administrative Agent nor,
for the avoidance of doubt, any Lender, may exercise any remedies or otherwise take any other action with respect to any Default or Event
of Default for which notice has been provided to the Administrative Agent or Lenders, or otherwise reported publicly, more than two years
prior to such exercise of remedies or other action; provided, further that such two year limitation shall not apply if
(i) the Administrative Agent has commenced any remedial action in respect of any such Event of Default or (ii) any Loan Party
has actual knowledge of such Default or Event of Default and failed to notify the Administrative Agent as required hereby; and in case
of any event with respect to the Borrower described in clause (h) or (i) of this Section 7.01, the Revolving Commitments
shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
Notwithstanding anything to the contrary herein,
in connection with any determination as to whether the Required Lenders have (A) consented (or not consented) to any amendment or
waiver of any provision of this Agreement or any other Loan Document or any departure by any Loan Party therefrom, (B) otherwise
acted on any matter related to any Loan Document, or (C) directed or required the Administrative Agent or any Lender to undertake
any action (or refrain from taking any action) with respect to or under any Loan Document, any Lender (other than a Regulated Bank or
a Revolving Lender) that, as a result of its interest in any total return swap, total rate of return swap, credit default swap or other
derivative contract (other than any such total return swap, total rate of return swap, credit default swap or other derivative contract
entered into pursuant to bona fide market making activities), has a net short position with respect to the Loans and/or Commitments (each,
a “Net Short Lender”) shall have no right to vote any of its Loans and Commitments and shall be deemed to have voted
its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders
who are not Net Short Lenders (in each case unless otherwise agreed to by the Borrower). For purposes of determining whether a Lender
has a “net short position” on any date of determination: (i) derivative contracts with respect to the Loans and Commitments
and such contracts that are the functional equivalent thereof shall be counted at the notional amount thereof in Dollars, (ii) notional
amounts in other currencies shall be converted to the dollar equivalent thereof by such Lender in a commercially reasonable manner consistent
with generally accepted financial practices and based on the prevailing conversion rate (determined on a mid-market basis) on the date
of determination, (iii) derivative contracts in respect of an index that includes any of the Borrower or other Loan Parties or any
instrument issued or guaranteed by any of the Borrower or other Loan Parties shall not be deemed to create a short position with respect
to the Loans and/or Commitments, so long as (x) such index is not created, designed, administered or requested by such Lender and
(y) the Borrower and other Loan Parties and any instrument issued or guaranteed by any of the Borrower or other Loan Parties, collectively,
shall represent less than 5% of the components of such index, (iv) derivative transactions that are documented using either the
2014 ISDA Credit Derivatives Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”)
shall be deemed to create (1) a short position with respect to the Loans and/or Commitments if such Lender is a protection buyer
or the equivalent thereof for such derivative transaction or (2) (x) a long position with respect to the Loans and/or Commitments
if such Lender is a protection seller or the equivalent thereof for such derivative transaction and (x) the Loans or the Commitments
are a “Reference Obligation” under the terms of such derivative transaction (whether specified by name in the related documentation,
included as a “Standard Reference Obligation” on the most recent list published by Markit, if “Standard Reference Obligation”
is specified as applicable in the relevant documentation or in any other manner), (y) the Loans or the Commitments would be a “Deliverable
Obligation” under the terms of such derivative transaction or (z) any of the Borrower, other Loan Parties, Vimeo Holdings
(or any other publicly traded entity that is a direct or indirect parent of Borrower) (or any of their successors) is designated as a
“Reference Entity” under the terms of such derivative transactions and (v) credit derivative transactions or other derivatives
transactions not documented using the ISDA CDS Definitions shall be deemed to create (x) a short position with respect to the Loans
and/or Commitments if such transactions are functionally equivalent to a transaction that offers the Lender protection in respect of
the Loans or the Commitments, or as to the credit quality of any of the Borrower, other Loan Parties, or Vimeo Holdings (or any other
publicly traded entity that is a direct or indirect parent of Borrower) and (y) a long position with respect to the Loans and/or
Commitments if such transactions are functionally equivalent to a transaction pursuant to which the Lender provides protection in respect
to the Loans or the Commitments, or as to the credit quality of any of the Borrower, other Loan Parties, or Vimeo Holdings (or any other
publicly traded entity that is a direct or indirect parent of Borrower), other than, in each case, as part of an index so long as (1) such
index is not created, designed, administered or requested by such Lender and (2) the Borrower, other Loan Parties, or Vimeo Holdings
(or any other publicly traded entity that is a direct or indirect parent of Borrower) and any instrument issued or guaranteed by any
of the Borrower, other Loan Parties, or Vimeo Holdings (or any other publicly traded corporation that is a direct or indirect parent
of Borrower) collectively, shall represent less than 5% of the components of such index.
In connection with any such determination, each
Lender (other than a Regulated Bank or a Revolving Lender) shall promptly notify the Administrative Agent in writing that it is a Net
Short Lender, or shall otherwise be deemed to have represented and warranted to the Borrower and the Administrative Agent that it is
not a Net Short Lender (it being understood and agreed that the Administrative Agent shall be entitled to conclusively rely on each such
representation and deemed representation and shall have no duty to (x) inquire as to or investigate the accuracy of any such representation
or deemed representation, (y) verify any statements in any officer’s certificates delivered to it or (z) otherwise ascertain
or monitor whether any Lender or prospective Lender is a Net Short Lender or make any calculations, investigations or determinations
with respect to any derivative contracts and/or net short positions). Without limiting the foregoing, the Administrative Agent shall
not (A) be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with
the provisions hereof relating to the Net Short Lenders or (B) have any liability with respect to or arising out of any assignment
or participation of Loans to any Net Short Lender.
ARTICLE VIII
The Administrative Agent and the Collateral
Agent
SECTION 8.01 Appointment
and Authorization. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders hereby
irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Collateral Agent by the terms hereof and the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. All references in this Article VIII to the Administrative Agent shall include the
Collateral Agent.
SECTION 8.02 Administrative
Agent and Affiliates. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Restricted Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
SECTION 8.03 Action
by Administrative Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein
and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or
9.03), and (c) except as expressly set forth herein, the Administrative Agent shall not 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 Restricted Subsidiaries that is communicated
to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or 9.03) or otherwise, in the
absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered under or in connection with this Agreement or any other Loan Document, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, the other Loan Documents or any other agreement, instrument or document, (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent or (vi) the existence of any Collateral or validity, perfection
or priority of any Liens thereon.
SECTION 8.04 Consultation
with Experts. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable
for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 8.05 Delegation
of Duties. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or
more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties
and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
SECTION 8.06 Successor
Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph,
the Administrative Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall
be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this
Article VIII and Section 9.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.
SECTION 8.07 Credit
Decision. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, any Lead Arranger,
any Co-Documentation Agent, any Senior Co-Manager, any Co-Manager or any other Lender or any of their respective Related Parties and
based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Lead Arranger, any
Co-Documentation Agent, any Senior Co-Manager, any Co-Manager or any other Lender or any of their respective Related Parties and based
on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder
or thereunder. Each Lender further acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters
of credit and not investments in a business enterprise or securities.
SECTION 8.08 Lead
Arrangers; Co-Documentation Agents; Senior Co-Managers; Co-Managers. Notwithstanding anything to the contrary herein, none of the
Lead Arrangers, Co-Documentation Agents, Senior Co-Managers or Co-Managers shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, if applicable, as the Administrative Agent, the Collateral Agent,
a Lender or an Issuing Bank. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lead Arrangers, Co-Documentation
Agents, Senior Co-Managers or Co-Managers in deciding to enter into this Agreement or any other Loan Document or in taking or not taking
any action hereunder or thereunder.
SECTION 8.09 Tax
Indemnification by the Lenders. To the extent required by any applicable Requirements of 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 provisions of
Section 2.14, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect
thereof within 10 days after demand therefor, all Taxes and all related losses, claims, liabilities and expenses (including fees, charges
and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the Internal
Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from
any amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was
not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance
that rendered the exemption from, or reduction of withholding Tax ineffective), whether or not such Tax was correctly or legally imposed
or asserted. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be
conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at
any time owing to such Lender under this Agreement or any other Loan Document or from any other sources against any amount due the Administrative
Agent under this Section 8.09. The agreements in this Section 8.09 shall survive the resignation and/or replacement of the
Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the commitments and the repayment,
satisfaction or discharge of all other Obligations. For the avoidance of doubt, the term “Lender” shall, for purposes of
this Section 8.09, include any Issuing Bank.
SECTION 8.10 Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following
is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the Revolving Commitments or this Agreement;
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement;
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Loans, the Letters of Credit, the Revolving Commitments and this Agreement, (C) the entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement
satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of
such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance
into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement;
or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or
(2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately
preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto,
to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party
hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any
other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and
this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement,
any Loan Document or any documents related hereto or thereto).
SECTION 8.11 Acknowledgements
of Lenders and Issuing Banks.
(a) Each
Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility,
(ii) it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be
applicable to such Lender or Issuing Bank, in each case in the ordinary course of business, and not for the purpose of purchasing, acquiring
or holding any other type of financial instrument (and each Lender and each Issuing Bank agrees not to assert a claim in contravention
of the foregoing), (iii) it has, independently and without reliance upon the Administrative Agent, any Lead Arranger, any Co-Documentation
Agent, Senior Co-Manager, Co-Manager or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and
based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement
as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire
and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank,
and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide
such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each
Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Lead
Arranger, any Co-Documentation Agent, Senior Co-Manager, Co-Manager or any other Lender or Issuing Bank, or any of the Related Parties
of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning
of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue
to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder.
(b) Each
Lender, by delivering its signature page to this Agreement on the Closing Date, or delivering its signature page to an Assignment
and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged
receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by
or satisfactory to, the Administrative Agent or the Lenders on the Closing Date.
(c) (i) Each
Lender and Issuing Bank hereby agrees that (x) if the Administrative Agent notifies such Lender or Issuing Bank in writing that
the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from the Administrative
Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually
and collectively, a “Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to
such Lender or Issuing Bank), and demands the return of such Payment (or a portion thereof), such Lender or Issuing Bank shall promptly,
but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion
thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including
the date such Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to the Administrative
Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender or Issuing Bank
shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment
with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without
limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any
Lender under this Section 8.11(c) shall be conclusive, absent manifest error.
(ii) Each
Lender and Issuing Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that
is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or
any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied
by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender
and Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in
error, such Lender or Issuing Bank shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative
Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any
such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of
each day from and including the date such Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount
is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation from time to time in effect.
(iii) Each
party hereto hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender or
Issuing Bank that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all
the rights of such Lender or Issuing Bank with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay,
discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party.
(iv) Each
party’s obligations under this Section 8.11(c) shall survive the resignation or replacement of the Administrative Agent
or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction
or discharge of all Obligations under any Loan Document.
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices.
(a) All
notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy) (unless
otherwise specifically permitted in this Agreement), and, unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered, or three Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy
or telephone notice, when received, addressed as follows in the case of the Borrower and the Administrative Agent, and as set forth in
an Administrative Questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other address as may be
hereafter notified by the respective parties hereto:
| Borrower: |
Dotdash Meredith, Inc. |
| |
555 West 18th225
Liberty Street, 5th Floor |
| |
New York, New York 1001110281 |
| |
Attn: General Counsel |
| |
Telephone: [Intentionally omitted] |
| |
Fax: [Intentionally omitted] |
| |
Email: [Intentionally omitted] |
| |
With a copy to: |
Dotdash Media Inc. |
|
28 Liberty Street, 7th Floor |
|
New York, NY 10005 |
|
Attn: General Counsel |
|
Telephone: [Intentionally omitted] |
|
Email: [Intentionally omitted] |
| |
| Administrative Agent: |
JPMorgan Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5 / 1st Floor |
| |
Newark, DE 19713 |
| |
| |
Attn: Loan & Agency Services
Group – Matt Bruno
Telephone: [Intentionally omitted]
Email: [Intentionally omitted]
|
| |
With a copy to: |
JPMorgan Chase Bank, N.A.
383 Madison Avenue, 24th Floor
New York, New York 10179
Attention: Matthew Cheung
Telephone: [Intentionally omitted]
Fax: [Intentionally omitted] |
| |
|
| |
For operational matters, Lenders can refer to the address provided
in the Administrative Questionnaire. |
(b) Notices,
financial statements and similar deliveries and other communications to the Lenders hereunder may be delivered or furnished by electronic
communications pursuant to procedures approved by the Administrative Agent (including by posting on IntraLinks); provided that
the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable
Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.
SECTION 9.02 Waivers;
Amendments.
(a) No
failure or delay by the Administrative Agent, the Collateral Agent or any Lender 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 Administrative Agent, the Collateral Agent and the Lenders hereunder 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 the Borrower
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. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the
Collateral Agent or any Lender may have had notice or knowledge of such Default at the time.
(b) Neither
this Agreement nor any provision hereof may be waived, amended, amended and restated or modified except as provided in Sections 2.02,
2.11, 2.19 and 2.20 or pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by
the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase
the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder,
or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender directly affected thereby (it being understood that the waiver of (or amendment to the terms of) any mandatory
prepayment of Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest), (iv) change
Section 2.15 in a manner that would alter the pro rata distribution or sharing of payments required thereby or any provision requiring
the pro rata funding of Loans, without the written consent of each Lender, (v) except as provided in Section 9.16, release
all or substantially all of the Collateral securing the Obligations or all or substantially all of the value of the Guarantees provided
by the Subsidiary Guarantors taken as a whole without the written consent of each Lender, (vi) adversely affect the rights of any
Class in respect of payments due to Lenders of such Class in a manner different to the effect of such amendment, waiver or
consent on any other Class without the written consent of the Required Lenders of such Class (it being understood that the
Required Lenders may waive, in whole or in part, any prepayment of Loans hereunder so long as the application, as between Classes, of
any portion of such prepayment that is still required to be made is not altered), (vii) change any of the provisions of this Section or
the definition of “Required Lenders,” “Required Financial Covenant Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided that such provisions may be amended or amended and restated pursuant
to the establishment of Incremental Term Loans pursuant to Section 2.02 in order to restrict affiliated lenders and other persons
from being included in such definitions or (viii) change the definition of “Alternative Currency,” without the written
consent of each Lender; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or any Issuing Bank hereunder without the prior written consent of the Administrative Agent or such
Issuing Bank, as the case may be.
(c) Notwithstanding
the foregoing, modifications to the Loan Documents may be made (including by amendment and restatement) with the consent of the Borrower
and the Administrative Agent (but without the consent of any Lender) to the extent necessary (A) to effectuate any Incremental Facilities,
Refinancing Term Loans, Replacement Revolving Facility Commitments, Replacement Revolving Loans, Extended Revolving Commitments and Extended
Revolving Loans in a manner consistent with Sections 2.02, 2.19 and 2.20 and as may be necessary to establish such Incremental Facilities,
Refinancing Term Loans, Extended Revolving Commitments, Extended Term Loans, Replacement Revolving Facility Commitments, Replacement
Revolving Loans or Extended Revolving Loans as a separate Class or tranche from any existing Term Loans, Revolving Commitments or
Revolving Loans, as applicable, and, in the case of Extended Term Loans, to reduce the amortization schedule of the related existing
Class of Term Loans proportionately or (B) to cure any ambiguity, omission, error, defect or inconsistency and, in each case
under this clause (B), such amendment shall become effective without any further action or consent of any other party to any Loan Document
if the same is not objected to in writing by the Required Lenders within ten Business Days following receipt of notice thereof.
(d) Notwithstanding
anything in this Agreement or the other Loan Documents to the contrary, unless otherwise set forth in any Incremental Assumption Agreement,
Extension Amendment or Refinancing Amendment with respect to the Class of Loans and Commitments established thereby, only the consent
of (1) the Required Financial Covenant Lenders shall be necessary to (A) waive or consent to a waiver of an Event of Default
under Section 7.01(d) (solely with respect to Section 6.10) or (B) modify or amend Section 6.10 (including,
in each case, the component definitions thereof, solely to the extent such definitions are used in such Section (but not otherwise))
or this clause (d) or (2) the Required Lenders under the Revolving Facility shall be necessary to amend or waive any condition
precedent in Section 4.02 as it relates to any Borrowing of Revolving Loans or issuance of Letters of Credit.
SECTION 9.03 Waivers;
Amendments to Other Loan Documents.
(a) No
failure or delay by the Administrative Agent or any Lender in exercising any right or power under the Guarantee Agreement or any Collateral
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the Lenders under the Guarantee Agreement and any Collateral
Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
the Guarantee Agreement or any Collateral Document or consent to any departure by any Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given.
(b) Neither
the Guarantee Agreement, any Collateral Document nor any provision thereof may be waived, amended. amended and restated or modified except
pursuant to an agreement or agreements in writing entered into by each Loan Party party thereto and, except as provided in Section 2.02,
2.19, 2.20, 9.02 or in the case of amendments to the Security Agreement described in Section 5.9 thereof, the Required Lenders or
by the Loan Parties party thereto and the Administrative Agent or the Collateral Agent with the consent of the Required Lenders; provided
that no such agreement shall (i) release all or substantially all of the Collateral (except as provided in Section 9.16),
(ii) modify the “waterfall” provisions set forth in Section 4.2 of the Security Agreement, (iii) release all
or substantially all of the Material Domestic Subsidiaries as Subsidiary Guarantors (except as provided in Section 9.16) or (iv) change
any of the provisions of this Section, in each case without the written consent of each Lender; provided, further, that
no such agreement shall amend, modify or otherwise affect the rights or duties of the Collateral Agent under the Guarantee Agreement
or any Collateral Document without the prior written consent of the Collateral Agent.
(c) Notwithstanding
anything to the contrary in any Loan Document, without the consent of any Lender, the Loan Parties and the Administrative Agent and the
Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment,
amendment and restatement, modification, supplement or waiver of any Loan Document, or enter into any new agreement or instrument, to
effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property
to become Collateral for the benefit of the Secured Parties, and to give effect to any intercreditor agreement reasonably satisfactory
to the Administrative Agent associated therewith, or as required by local law to give effect to, or protect, any security interest for
the benefit of the Secured Parties in any property or so that the security interests therein comply with applicable law or this Agreement
or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
SECTION 9.04 Expenses;
Limitation of Liability Indemnity; Etc.
(a) Expenses.
The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, the
Lead Arrangers, the Co-Documentation Agents, the Senior Co-Managers, the Co-Managers and their respective Affiliates, including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent, the Collateral Agent, the Lead Arrangers, the Co-Documentation
Agents, the Senior Co-Managers and the Co-Managers, in connection with the syndication of the Facilities and the preparation, execution,
delivery and administration of this Agreement or any other Loan Document or any amendments, modifications or waivers of the provisions
hereof or thereof and (ii) all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent and
the Lenders, including the fees, charges and disbursements of one firm of counsel for the Administrative Agent, the Collateral Agent
and the Lenders taken as a whole (and in the case of an actual or perceived conflict of interest, one additional counsel to all such
affected Persons, taken as a whole), and to the extent required, one firm of local counsel in each relevant jurisdiction (which may include
a single special counsel acting in multiple jurisdictions) and one firm of regulatory counsel, in connection with the enforcement or
protection of its rights in connection with this Agreement or any other Loan Document, including their rights under this Section, or
in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) Limitation
of Liability. To the extent permitted by applicable law, (i) the Borrower hereby waives any claim against the Administrative
Agent, the Collateral Agent any Lead Arranger, any Co-Documentation Agent, Senior Co-Manager, Co-Manager, any Issuing Bank and any Lender,
and any Related Party of any of the foregoing Persons (each such Person being called a “Lender-Related Person”)
for any losses, claims, damages or liabilities arising from the use by others of information or other materials (including, without
limitation, any personal data) obtained through telecommunications, electronic or other information transmission systems (including the
Internet) except to the extent any such damages are found by a final, non-appealable judgment of a court of competent jurisdiction to
have arisen from the gross negligence or willful misconduct of such Lender-Related Person and (ii) the parties shall not assert,
and each hereby waives, any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement
or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof; provided that nothing in this
clause (b) is intended to relieve the Borrower of any obligation it may otherwise have to indemnify any Indemnitee against any special,
indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
(c) Indemnity.
The Borrower shall indemnify the Administrative Agent, the Collateral Agent, the Lead Arrangers, the Co-Documentation Agents, the Senior
Co-Managers, the Co-Managers and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the reasonable and documented or invoiced out-of-pocket fees, expenses, disbursements and other charges of
one firm of counsel for all Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the
Indemnitee affected by such conflict notifies the Borrower of any existence of such conflict and in connection with the investigating
or defending any of the foregoing has retained its own counsel, of another firm of counsel for such affected Indemnitee), and to the
extent required, one firm or local counsel in each relevant jurisdiction) and one firm of regulatory counsel of any such Indemnitee,
arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the performance by the parties to this Agreement or any other Loan Document
of their respective obligations hereunder or thereunder or the consummation of the Transactions or any other transactions contemplated
hereby or thereby, (ii) any Loan, Letter of Credit or the use of the proceeds therefrom, (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Restricted Subsidiaries, or
any Environmental Liability related in any way to the Borrower or any of its Restricted Subsidiaries, (iv) any civil penalty or
fine assessed by OFAC against, and all reasonable costs and expenses (including counsel fees and disbursements) incurred in connection
with defense thereof, by the Administrative Agent, the Collateral Agent or any Lender as a result of conduct of the Borrower that violates
a sanction enforced by OFAC or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto or whether
or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any other
third person; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (i) are determined by a court of competent jurisdiction in a final and nonappealable judgment
to have resulted from the gross negligence, willful misconduct or bad faith of such Indemnitee (or that of any of its respective subsidiaries
or any of their respective officers, directors, employees or members), (ii) are determined by a court of competent jurisdiction
in a final and nonappealable judgment to have resulted from a material breach of this Agreement by such Indemnitee or (iii) do not
involve or arise from an act or omission by the Borrower or its subsidiaries or any of their respective affiliates, partners, directors,
officers, employees, agents, advisors or other representatives and is brought by an Indemnitee solely against one or more other Indemnitees
(other than claims against the Administrative Agent, the Collateral Agent, any Lead Arranger, any Co-Documentation Agent, any Senior
Co-Manager, any Co-Manager in its capacity as such or in its fulfilling such role). Each Indemnitee shall give prompt notice to the Borrower
of any claim that may give rise to a claim against the Borrower hereunder and shall consult with the Borrower in the conduct of such
Indemnitee’s legal defense of such claim; provided, however, than an Indemnitee’s failure to give such prompt
notice to the Borrower or to seek such consultation with the Borrower shall not constitute a defense to any claim for indemnification
by such Indemnitee unless, and only to the extent that, such failure materially prejudices the Borrower.
(d) Lender
Reimbursement. To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent such Lender’s Total
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent in its capacity as such.
(e) Payments.
All amounts due under this Section shall be payable within ten (10) Business Days after written demand therefor.
(f) This
Section 9.04 shall not apply to any Taxes other than Taxes that represent losses, claims, damages, liabilities and expenses resulting
from a non-Tax claim.
SECTION 9.05 Successors
and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) except as set forth in Section 6.03(vi), 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, Participants (to
the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (“assignee”
or “assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of
its Revolving Commitments and the Loans at the time owing to it) with the prior written consent of:
(A) the
Borrower (such consent not to be unreasonably withheld or delayed, except for any bona fide competitors of the Borrower and its
subsidiaries); provided that no consent of the Borrower shall be required for an assignment (i) of a Term B-1 Loan
Commitment or a Term B-1 Loan to a Term
B-1 Lender, an Affiliate of a Term B-1 Lender,
or an Approved Fund, (ii with
respect to a Term B-1 Lender, (ii) of a Term A Commitment or Term A Loan to a Term A Lender, an Affiliate of a Term A Lender or
an Approved Fund with respect to a Term A Lender, (iii) of a Revolving Commitment or Revolving Loans to a Revolving
Lender, an Affiliate of a Revolving Lender or Approved Fund with respect to a Revolving Lender or (iiiiv)
if an Event of Default has occurred and is continuing, any other assignee (except for any bona fide competitor of the Borrower and
its subsidiaries); provided, further, that the Borrower shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having
received notice of the proposed assignment;
(B) the
Administrative Agent (such consent not to be unreasonably withheld), provided that no consent of the Administrative Agent shall
be required for an assignment of any Revolving Commitment or Loan to an assignee that is a Lender, an Affiliate of a Lender or an Approved
Fund; and
(C) each
Issuing Bank; provided that the consent of any Issuing Bank shall not be required (i) for any assignment of all or any portion
of a Term Loan or (ii) for an assignment of any Revolving Commitment or Loan to an assignee that is an Affiliate of a Lender
..
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Revolving Commitment or Loans of any Class, (i) the
amount of the Revolving Commitments or Revolving Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $10,000,0005,000,000
(or in the case of a Loan in an Alternative Currency, an appropriate corresponding amount as shall be consented to by the Administrative
Agent (such consent not be unreasonable withheld)), unless
each of the Borrower and Administrative Agent otherwise consent and (ii) the amount of the Term Loan Commitments or Term Loans of
the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment
is delivered to the Administrative Agent) shall not be less than $1,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default under clause (a),
(b), (h) or (i) of Section 7.01 has occurred and is continuing;
(B) 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, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all
the assigning Lender’s rights and obligations in respect of its Revolving Commitments or Revolving Loans;
(C) the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500 (which fee is hereby waived for any assignment to which JPMorgan Chase Bank, N.A. or any of its Affiliates
is a party);
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire;
(E) on
the date of such assignment, the assignee of a Revolving Commitment must be able to fund Revolving Loans in all Alternative Currencies;
and
(F) the
assignee shall not be (i) the Borrower or any of the Borrower’s Affiliates or Subsidiaries except in accordance with Section 2.22
and clause (e) below or (ii) a natural Person (or a holding company, investment vehicle or trust for, or owned and operated
by or for the primary benefit of a natural Person).
For the purposes of this Section 9.05(b),
the term “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding
or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed
by (a) a Lender of the applicable Class, (b) an Affiliate
of a Lender of the applicable Class or (c) an entity or
an Affiliate of an entity that administers or manages a Lender of the applicable
Class.
(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in
each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of
an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 9.04). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.05 shall be null and
void.
(iv) The
Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount (and related interest) of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower,
the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender (with respect to such Lender’s own interests only), at any reasonable time and from time
to time upon reasonable prior notice.
(v) Upon
its receipt of a duly completed Assignment and Assumption with respect to a permitted assignment executed by an assigning Lender and
an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section (unless waived), and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i)
Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks, institutions
or other entities (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 and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents.
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 the other Loan Documents and to approve any amendment, modification or waiver of any provision of
this Agreement and the other Loan Documents; 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 9.02(b) or
the first proviso to Section 9.03(b) that affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 (subject to the requirements
and limitations of such Sections; provided that any documentation required to be provided pursuant to Section 2.14(e) shall
be provided solely to the participating Lender) to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary
agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and
related interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters
of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary in connection
with a Tax audit or other proceeding or other governmental inquiry to establish that such commitment, loan, letter of credit or other
obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant
Register shall be conclusive absent manifest error, and the parties hereto shall treat each Person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(ii) A
Participant shall not be entitled to receive any greater payment under Section 2.12 or 2.14 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such Participant.
(d) Any
Lender may 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 without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other applicable
central bank that governs or regulates the activities of such Lender, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(e) Any
Lender may, at any time, assign all or a portion of its rights and obligations with respect to Term Loans to an Affiliated Lender, subject
to the following limitations:
(i) notwithstanding
anything herein or in any of the other Loan Documents to the contrary, with respect to any acquisition of Term Loans, (1) under
no circumstances, whether or not any Loan Party is subject to a bankruptcy or other insolvency proceeding, shall such Affiliated Lender
be permitted to exercise any voting rights or any right to direct the Administrative Agent or the Collateral Agent to undertake any action
(or refrain from taking any action) with respect to any Term Loans and any Term Loans that are assigned to such Affiliated Lender shall
have no voting rights or any right to direct the Administrative Agent or the Collateral Agent to undertake any action (or refrain from
taking any action) under this Agreement and the other Loan Documents (and shall not object to any actions taken by the non-Affiliated
Lenders, Administrative Agent or Collateral Agent in a bankruptcy or insolvency proceeding) and will be deemed to have voted in the same
proportion as non-Affiliated Lenders voting on such matter, unless the action or vote in question adversely affects such Affiliated Lender
(solely in its capacity as a Lender) in any material respect as compared to the other Lenders, (2) such Affiliated Lender shall
not receive information provided solely to Lenders by the Administrative Agent or any Lender and shall not be permitted to attend or
participate in meetings attended solely by Lenders and the Administrative Agent and their advisors and (3) the Affiliated Lender
must provide a representation and warranty that it is not in possession of any material non-public information with respect to the Loan
Parties or their subsidiaries, or with respect to the Term Loans or the securities of any such person, that (A) has not been previously
disclosed in writing to the assigning Lender or the Lenders generally (other than because such Lender does not wish to receive such material
non-public information) prior to such time and (B) could reasonably be expected to have a material effect upon, or otherwise be
material to, the assigning Lender’s decision to make such assignment;
(ii) at
the time any Affiliated Lender is making purchases of Term Loans it shall enter into an Affiliated Lender Assignment and Assumption;
(iii) at
the time of such assignment, no Event of Default shall have occurred and be continuing or would result therefrom;
(iv) each
Affiliated Lender agrees to waive any right to bring any action in connection with the Loans against the Administrative Agent and Collateral
Agent, in their capacities as such; and
(v) Affiliated
Lenders may not hold more than 25% of the total amount of Term Loans and Commitments of any Class hereunder.
SECTION 9.06 Survival.
All covenants, agreements, representations and warranties made by any Loan Parties herein, in the other Loan Documents and in the certificates
or other instruments delivered in connection with or pursuant to this Agreement or the other Loan Documents shall be considered to have
been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the other Loan Documents
and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Revolving Commitments
have not expired or terminated. The provisions of Sections 2.12, 2.13, 2.14 and 9.04 and Article VIII shall survive and remain in
full force and effect regardless of the resignation and/or replacement of the Administrative Agent, the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments, any assignment of rights by or replacement
of a Lender or the termination of this Agreement or any provision hereof.
SECTION 9.07 Counterparts;
Integration; Effectiveness.
(a) This
Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative Agent, the Collateral Agent, the Lead Arranger, the Co-Documentation
Agents, the Senior Co-Managers or the Co-Managers constitute the entire contract among the parties relating to the subject matter hereof
and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement
shall become effective as provided in Section 4.01, and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
(b) Delivery
of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any
document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to
Section 9.01), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or
the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature
transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall
be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as
applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like
import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic
Signatures, transmission of such Electronic Signatures as described above, and deliveries or the keeping of records in any electronic
form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature
page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery
thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative
Agent or the Collateral Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to
procedures approved by it, such consent not to be unreasonably withheld; provided, further, (i) the parties shall
be entitled to rely on such Electronic Signature purportedly given by or on behalf of such other party without further verification thereof
and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of any party,
any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing,
each of the parties hereto hereby agree that (i) for all purposes, including without limitation, in connection with any workout,
restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Collateral Agent the
Lenders, the Borrower and the Loan Parties, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means
that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Loan Document
and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (ii) each other
party hereto may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in
the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business,
and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have
the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest the
legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the
lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with
respect to any signature pages thereto and (iv) waives any claim against any other party hereto or any Related Person of any
such Person for any losses, claims, damages or liabilities arising solely from reliance by any party hereto on or use of Electronic Signatures
and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature
page, including any losses, claims, damages or liabilities arising as a result of the failure of the any such Person to use any available
security measures in connection with the execution, delivery or transmission of any Electronic Signature.
SECTION 9.08 Severability.
Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any
other jurisdiction.
SECTION 9.09 Right
of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and Issuing Bank, and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such
Lender, Issuing Bank or Affiliate to or for the credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Lender or Issuing Bank, irrespective of whether or not such
Lender or Issuing Bank shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of
each Lender and Issuing Bank under this Section are in addition to other rights and remedies (including other rights of setoff)
which such Lender or Issuing Bank may have. Each Lender and Issuing Bank agrees to notify the Administrative Agent promptly after any
such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
SECTION 9.10 Governing
Law; Jurisdiction; Consent to Service of Process.
(a) This
Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or otherwise) based
upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set
forth therein) and the transactions contemplated hereby and thereby shall be governed by and construed in accordance with the law of
the State of New York.
(b) The
Borrower and each other Loan Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding
of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent,
the Collateral Agent, any Lender, any Issuing Bank, or any Related Party of the foregoing in any way relating to this Agreement or any
other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting
in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof,
and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims
in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto 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. Nothing in this Agreement or any
other Loan Document shall affect any right that the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank may otherwise
have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrower or any other Loan
Party or their respective properties in the courts of any jurisdiction.
(c) The
Borrower and each other Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or the other Loan Documents in any court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in
this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.11 WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED TO IT, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
SECTION 9.12 Headings.
Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.13 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential),
(b) to the extent requested by any regulatory or self-regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any
of its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its Related Parties) to any swap or derivative transaction or any credit insurance or reinsurance provider relating
to the Borrower and its obligations, or (iii) any actual or prospective
counterparty (or its Related Parties) to any Securitization transaction, (g) with the consent of the Borrower, (h) to
the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or an agreement
described in clause (f) hereof or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrower or (i) on a confidential basis to (x) any rating agency in connection with rating the
Borrower or any of its subsidiaries or the Loans hereunder, (y) the CUSIP Service Bureau or any similar agency in connection with
the issuance and monitoring of CUSIP numbers with respect to the facilities or (z) market data collectors, similar service providers
to the lending industry and service providers to the Administrative Agent in connection with the administration and management of this
Agreement and the other Loan Documents. For the purposes of this Section, “Information” means all information received
from the Borrower or its Affiliates relating to the Borrower, its subsidiaries or their businesses, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or its Affiliates.
Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information
as such Person would reasonably accord to its own confidential information.
Subject to Section 9.18, each Lender acknowledges
that information furnished to it pursuant to this Agreement or the other Loan Documents may include material non-public information concerning
the Borrower and its Affiliates and their related parties or their respective securities, and confirms that it has developed compliance
procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance
with those procedures and applicable law, including Federal and state securities laws.
Subject to Section 9.18, all information,
including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement or the other Loan Documents will be syndicate-level information, which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their respective securities. Accordingly, each Lender
represents to the Borrower and the Administrative Agent that it has identified in its administrative questionnaire a credit contact who
may receive information that may contain material non-public information in accordance with its compliance procedures and applicable
law, including Federal and state securities laws.
SECTION 9.14 Judgment
Currency. If, for the purposes of obtaining judgment or filing a claim in any court, it is necessary to convert a sum due hereunder
or claim in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures
the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final
judgment is given. The obligation of the Borrower in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder
shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated
in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency.
If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from the Borrower
in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative
Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater
than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any
excess to the Borrower (or to any other Person who may be entitled thereto under applicable law).
SECTION 9.15 USA
PATRIOT Act and Beneficial Ownership Regulation. Each Lender subject to the Act hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
and the Beneficial Ownership Regulation, it is hereby required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower
in accordance with the Act and the Beneficial Ownership Regulation and the Borrower agrees to provide to any Lender for the purposes
of complying therewith such information as reasonably requested from time to time by such Lender.
SECTION 9.16 Collateral
and Guarantee Matters.
(a) The
Lenders irrevocably authorize the Administrative Agent and the Collateral Agent to enter into any customary intercreditor agreement or
arrangement in form and substance reasonably satisfactory to the Administrative Agent or the Collateral Agent, as applicable, with the
holders of any Permitted Secured Ratio Debt (or any agent thereof) permitted under this Agreement that in the good faith determination
of the Administrative Agent or Collateral Agent, as applicable, is necessary to effectuate the incurrence of such Indebtedness.
(b) Any
Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document shall automatically
be released (i) upon all of the Obligations (other than (x) (A) Cash Management Obligations and (B) Obligations under
Specified Swap Agreements not yet due and payable, and (y) contingent obligations not yet accrued and payable) having been paid
in full, all Letters of Credit having been cash collateralized or otherwise back-stopped (including by “grandfathering” into
any future credit facilities), in each case, on terms reasonably satisfactory to the relevant Issuing Bank in its sole discretion, or
having expired or having been terminated, and the Total Revolving Commitments having expired or having been terminated, (ii) on
such property that is Disposed of or to be Disposed of as part of or in connection with any Disposition (other than a lease or a license)
not prohibited hereunder or under any other Loan Document to any Person other than a Loan Party, (iii) subject to Section 9.02,
if approved, authorized or ratified in writing by the Required Lenders, (iv) on such property owned by a Subsidiary Guarantor upon
(or substantially simultaneously with) release of such Subsidiary Guarantor from its obligations under its Guarantee Agreement pursuant
to clause (c) below, (v) upon such property becoming Excluded Collateral (as defined in the Security Agreement) or (vi)
as expressly provided in the Collateral Documents.
(c) Any
Subsidiary Guarantor shall automatically be released from its obligations under the Guarantee Agreement (A) in the event of dissolution
of such Person in accordance with the provisions of this Agreement, (B) if such Person is designated as an Unrestricted Subsidiary
or otherwise ceases to be a Restricted Subsidiary, in each case in accordance with the provisions of this Agreement, upon (or substantially
simultaneously with) effectiveness of such designation or when it first ceases to be a Restricted Subsidiary, respectively, (C) if
the Obligations are discharged in accordance with the terms of this Agreement or (D) as otherwise expressly provided in the Guarantee
Agreement; provided that no such release shall occur with respect to an entity that ceases to be a Restricted Subsidiary if such
Subsidiary Guarantor continues to be a guarantor in respect of any Permitted Ratio Debt unless and until such guarantor is (or is being
substantially simultaneously) released from its guarantee with respect to such Permitted Ratio Debt.
(d) The
Lenders and the other Secured Parties (by virtue of their acceptance of the benefits of the Loan Documents) hereby authorize the Administrative
Agent and the Collateral Agent to release any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent
under any Loan Document to the holder of any Lien on such property that is permitted by clauses (c), (d) or (k) of Section 6.02
in each case to the extent the contract or agreement pursuant to which such Lien is granted prohibits any other Liens on such property;
and the Administrative Agent and the Collateral Agent shall do so upon request of the Borrower; provided that prior to any such
request, the Borrower shall have delivered to the Administrative Agent a certificate of the Chief Executive Officer, a Vice President
or a Financial Officer of the Borrower or any other executive officer of the Borrower certifying (x) that such Lien is not prohibited
under this Agreement and (y) that the contract or agreement pursuant to which such Lien is granted prohibits any other Lien on such
property.
(e) Upon
request by the Administrative Agent or Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative
Agent’s or Collateral Agent’s authority to release its interest in particular types or items of property, release any Subsidiary
Guarantor from its obligations under the Guarantee Agreement, or enter into an intercreditor agreement pursuant to this Section 9.16.
In each case as specified in this Section 9.16, the Administrative Agent and/or Collateral Agent will, at the Loan Parties’
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release
of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to release such Subsidiary
Guarantor from its obligations under the Guarantee Agreement, in each case in accordance with the terms of the Loan Documents and this
Section 9.16.
SECTION 9.17 No
Advisory or Fiduciary Relationship. In connection with all aspects of each transaction contemplated hereby, the Borrower acknowledges
and agrees for itself and on behalf of the Loan Parties that (i) the Facilities provided for hereunder and any related arranging
or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any
other Loan Document) are an arm’s-length commercial transaction between the Loan Parties, on the one hand, and the Agent Parties
and the Lenders, on the other hand, and the Loan Parties are capable of evaluating and understanding and understand and accept the terms,
risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading to such transaction, each of the Agent Parties and
the Lenders is and has been acting solely as a principal and is not the agent or fiduciary for the Loan Parties; (iii) the Lead
Arrangers, Agent Parties, the Co-Documentation Agents, the Senior Co-Managers, the Co-Managers and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from, and may conflict with, those of the Borrower and its
Affiliates, and none of the Lead Arrangers, the Agent Parties, the Co-Documentation Agents, the Senior Co-Managers or the Co-Managers
has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (iv) the Agent
Parties and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of
the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and
the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate.
SECTION 9.18 Platform;
Borrower Materials. The Borrower hereby acknowledges that (a) the Administrative Agent, the Lead Arrangers, the Co-Documentation
Agents, the Senior Co-Managers and/or the Co-Managers will make available to the Lenders and the Issuing Bank materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “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 the Borrower or their respective Subsidiaries
or any of their respective securities) (each, a “Public Lender”). The Borrower hereby agrees that it will identify
that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall
be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed
to have authorized the Administrative Agent, the Lead Arrangers, the Co-Documentation Agents, the Senior Co-Managers, the Co-Managers,
the Issuing Bank and the Lenders to treat such Borrower Materials as solely containing information that is either (A) publicly available
information or (B) not material (although it may be sensitive and proprietary) with respect to the Borrower or the Subsidiaries
or any of their respective securities for purposes of United States Federal securities laws (provided, however, that such
Borrower Materials shall be treated as set forth in Section 9.13, to the extent such Borrower Materials constitute information subject
to the terms thereof), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (iv) the Administrative Agent, the Lead Arrangers, the Co-Documentation
Agents, the Senior Co-Managers and the Co-Managers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public Investor.” THE PLATFORM IS PROVIDED
“AS IS” AND “AS AVAILABLE”. THE ADMINISTRATIVE AGENT, ITS RELATED PARTIES, THE LEAD ARRANGERS, THE
CO-DOCUMENTATION AGENTS, THE SENIOR CO-MANAGERS AND THE CO-MANAGERS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT, ANY OR
ITS RELATED PARTIES, ANY LEAD ARRANGER, ANY CO-DOCUMENTATION AGENT, ANY SENIOR CO-MANAGER, OR
ANY CO-MANAGER IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.
SECTION 9.19 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Solely to the extent any Lender or Issuing Bank that is an Affected Financial
Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or Issuing Bank
that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject
to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees
to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any Lender or Issuing Bank that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
SECTION 9.20 Acknowledgment
Regarding Any Supported QFCs. To the extent that the
Loan Documents provide support, through a guarantee or otherwise, for Hedging Obligations or any other agreement or instrument that is
a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge
and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance
Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder,
the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions
below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the
State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to
a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime,
the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported
QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered
Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported
QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States
or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any
QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws
of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and
remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to
a Supported QFC or any QFC Credit Support.
[Signature Pages Intentionally Omitted]
Exhibit B
Form of Security Agreement Amendment
[EXHIBIT B ON FILE WITH THE ADMINISTRATIVE AGENT AND THE BORROWER]
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- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
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| Namespace Prefix: |
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| Data Type: |
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| Balance Type: |
na |
| Period Type: |
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| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
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| Namespace Prefix: |
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| Period Type: |
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|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
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|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
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| Namespace Prefix: |
dei_ |
| Data Type: |
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| Balance Type: |
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| Period Type: |
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|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
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| Namespace Prefix: |
dei_ |
| Data Type: |
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| Balance Type: |
na |
| Period Type: |
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|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
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dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
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| Balance Type: |
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| Period Type: |
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| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
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| Namespace Prefix: |
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| Balance Type: |
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| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
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| Period Type: |
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